Effective August 25, 2008, the Department of Transportation made significant changes to the rules related to alcohol and drug tests included in 49 C.F.R. Part 40.  These changes amend provisions providing instructions to collectors, laboratories, medical review officers and employers regarding urine specimen results.  These changes have been hailed by the Drug and Alcohol Testing Industry Association (the group that sets standards for the drug and alcohol testing industry) as necessary to guard against the possibility of adulterated or substituted specimens.

Although most of the changes relate to collectors, laboratories and medical review officers, there are a number of provisions that are important from the perspective of employers in DOT-regulated industries:

• All DOT specimens must be tested for specimen validity.  Employers should confirm that their laboratory is aware of and following this procedure.
• The definition of "refusal to test" has been changed, so that it now includes the following instances:
  
  • The donor possesses or is wearing a device that could be used to interfere with the collection process,
  • The donor refuses to allow clothing to be raised and lowered during an observed collection, or
  • The donor admits to adulterating or substituting the specimen.

Employers should educate their employees so that they do not unwittingly fall within one of these categories. 

• All return-to-duty and follow-up drug tests must be collected under direct observation.  During observed collections, items that could be used to carry clean urine will be checked by the observer.  The observer will have the employee raise and lower clothing and then put it back into place for the observed collection.  Employers should confirm that their laboratory is following this procedure.  Employers should also educate their employees about this procedure so that they do not refuse to comply and therefore fall within the revised definition of a "refusal to test."

Numerous private employers and unions, including the Professional Airways Systems Specialists and the AFL-CIO have objected to the new regulations, especially as they relate to the observed collections.  The DOT has been considering these concerns and may therefore delay implementation of these changes.  If the DOT does not stop implementation of the changes, several union groups have threatened legal action to halt implementation of the observed collection portion of the amendment. 

You can read a complete copy of the revised 49 C.F.R. Part 40 by clicking here.  Parker Poe will continue to keep you up-to-date on important legal changes that affect you.  If you have any questions or concerns about these important changes, do not hesitate to contact a Parker Poe attorney in the Transportation Practice Group.