A U.S. Dept. of Transportation rule requiring the direct observation of follow-up drug testing is constitutional, says the U.S. Court of Appeals for the D.C. Circuit.

Under DOT regulations which were to take effect last year, employees in transportation industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties. To prevent cheating, DOT required that the urine samples be collected under direct observation. A railway company and several transportation unions challenged the revised regulation, arguing that it violated both the Administrative Procedure Act and the Fourth Amendment’s prohibition on unreasonable searches.

The Court disagrees, finding that “[T]he Department acted neither arbitrarily nor capriciously in concluding that the growth of an industry devoted to circumventing drug tests, coupled with returning employees’ higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the mandatory use of direct observation.”

Pointing out that the government has a “strong interest in conducting direct observation testing to ensure transportation safety,” the Court indicates that the privacy interest of the returning employees is diminished by the fact that all have violated the DOT’s drug regulations by either refusing to take a test or testing positive. “[D]irect observation is extremely invasive, but that intrusion is mitigated by the fact that employees can avoid it altogether by simply complying with the drug regulations,” the Court concludes. BNSF Railway Co., et al., v. U.S. Dept. of Transportation