The U.S. Dept. of Transportation reinstates the requirement for direct observation of all return-to-duty and follow-up drug tests for transport workers.

The DOT rule was stayed by the D.C. Circuit in November 2008 based on protests from union and transportation groups, but that stay was lifted on July 1, 2009. The reinstated rule restores language to the version that became a final rule on June 25, 2008, and is effective on Aug. 31, 2009. Previously, direct observation collections for return-to-duty and follow-up testing remained an employer option, rather than mandatory. Last August, the DOT implemented a rule that directed observers to check for prosthetic and other devices used to carry ‘‘clean’’ urine and urine substitutes. Covered employers who receive an initial drug test result indicating that the test was invalid (adulterated, substituted, positive for drugs or drug metabolites, and/or invalid)—or if the drug test is a return-to-duty test or follow-up test—must direct a second collection under direct observation. The DOT rules specifies that observers must “request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show … by turning around, that they do not have a prosthetic device.” After the observer determines that the employee does not have a prosthetic device, the observer “permit[s] the employee to return clothing to its proper position for observed urination.”