Last year, the federal Department of Transportation modified its drug testing rules for employees who return to work following a positive test result or a refusal to test.  In order to deter cheating, DOT required the employer to directly observe the employee providing the sample (49 C.F.R. §40.67(i)).  For obvious reasons, many employers felt uncomfortable with the direct observation requirement.  Last week in BNSF Railway Co. v. USDOT, the U.S. Court of Appeals for the District of Columbia upheld the DOT rule.

BNSF and several transportation industry unions challenged the rule, claiming that it was arbitrary and capricious, and that it violates the Fourth Amendment privacy rights of the affected employees.  The D.C. Circuit rejected the challenge to the rule, noting voluminous data collected by DOT that supports its position that the availability of drug test cheating technology is widespread.  The lack of statistical data on actual employee cheating is not required to support the basis for the rule.  The court also concluded that employees who return to work following a positive test have a greater incentive to cheat.

The D.C. Circuit also concluded that direct observation is consistent with Fourth Amendment search and seizure requirements.  The government’s compelling interest in transportation safety outweighs a returning employee’s privacy concerns.  These employees have already engaged in activity that creates a reasonable suspicion of possible future drug use.

In the unlikely event of an en banc or Supreme Court reversal, employers will have to continue to conduct direct observation tests for returning DOT regulated employees.