News
New Direct Observation Rule for CDL Drivers Goes Into Effect August 31, 2009
July, 31 2009
NOTE: This update applies only to employers who have employees whose jobs require them to possess a commercial driver’s license (CDL).
New Rule Effective August 31, 2009
After several months of delay as a result of a lawsuit, new rules governing mandatory direct observation of urine specimen collection issued by the U.S. Department of Transportation (DOT) go into effect August 31, 2009. The new DOT drug testing rules will apply in situations where an invalid result is returned from the laboratory and direct observation testing is ordered by the Medical Review Officer (MRO), when the test is a return to duty test following rehabilitation, and for follow-up testing after rehabilitation.
New Rule Effective August 31, 2009
After several months of delay as a result of a lawsuit, new rules governing mandatory direct observation of urine specimen collection issued by the U.S. Department of Transportation (DOT) go into effect August 31, 2009. The new DOT drug testing rules will apply in situations where an invalid result is returned from the laboratory and direct observation testing is ordered by the Medical Review Officer (MRO), when the test is a return to duty test following rehabilitation, and for follow-up testing after rehabilitation.
Summary of direct observation requirement.
In June 2008, the DOT issued regulations mandating specimen validity testing (SVT) by laboratories. This is testing done to ensure that the urine specimen given is valid and not adulterated in an attempt to defeat the test. The large majority of these regulations, which when into effect August 25, 2008, affect certified laboratories that conduct DOT testing and Medical Review Officers (MRO) who must certify the result of any non-negative test result to the employer.
In June 2008, the DOT issued regulations mandating specimen validity testing (SVT) by laboratories. This is testing done to ensure that the urine specimen given is valid and not adulterated in an attempt to defeat the test. The large majority of these regulations, which when into effect August 25, 2008, affect certified laboratories that conduct DOT testing and Medical Review Officers (MRO) who must certify the result of any non-negative test result to the employer.
One important but controversial part of the regulations requires certain specimen collections to be directly observed. Previous rules made direct observation optional. Implementation of the new rules was initially delayed to allow DOT time to address concerns by industry groups and unions about the invasiveness of the observation requirements. Implementation was later further delayed by a legal challenge.
Normally, collections are conducted in privacy, with the collector taking certain steps to ensure there is no obvious attempt at adulteration of the sample. The collector does not, however, observe the employee giving the sample. Under the DOT’s new rules, this does not change, except that direct observation now will be required in three circumstances:
- When the MRO notifies the employer that a recollection must occur under direct observation. This will generally occur when the original specimen is deemed invalid by the laboratory.
- When the test is a return-to-duty test following completion of a substance abuse treatment program ordered by the Substance Abuse Professional (SAP).
- When the test is a follow-up test ordered by the SAP.
What do employers need to do?
All employers with CDL employees should review their policies and procedures for their DOT drug testing program to ensure they are up to date. Many employers do not perform specimen collection themselves, but outsource the function to certified vendors. For these employers, the new regulations will not require any change in procedures. But because the new requirements are more invasive than previously required, employers should ensure that their CDL employees understand the new requirements. Employers who conduct collections themselves must continue to ensure that they meet the requirements of Subpart D to Part 40 of the Code of Federal Regulations (governing collection sites). Such employers are also well advised to prepare for implementation of the new regulations by ensuring that covered employees and collection site personnel are aware of its requirements and that collection site personnel include individuals of both genders to allow for direct observations by someone of the same gender.
If you have any questions about drug testing or DOT’s drug and alcohol testing program, please contact us.
Gignilliat, Savitz & Bettis, LLP
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us