DOT delays mandatory direct observation regulation to November 1

CLEVELAND, August 24 — The U.S. Department of Transportation is postponing from August 25 to November 1 a new regulation that would subject employees to mandatory direct observation during drug tests conducted when a transportation worker returns to work after a positive drug test and during follow-up drug tests.

The current DOT regulation, which will remain in effect for the time being, requires direct observation of urine collection only after an invalid test, and is discretionary during return-to-duty and follow-up tests.

DOT has not delayed implementation of a related requirement that would subject workers to a "strip search" in those situations when a direct observation will be made. Section 40.67(i) states as follows:

"As the observer, you 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 you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination."

It is expected that the postponement will be published in the August 25 Federal Register. Also, the DOT will open a 30-day public comment period, during which time interested parties may comment on whether direct observation should be mandatory in all return-to-duty and follow-up tests.

In mid-August, the BLET along with seven other rail unions and the BNSF Railway, filed a lawsuit challenging both aspects of the new regulation on the grounds that they violated the Fourth Amendment of the U.S. Constitution, which protects citizens from unreasonable searches. The joint petition for review was filed in the United States Court of Appeals for the District of Columbia Circuit.

Unions challenge DOT’s “strip search” regulation

Friday, August 15, 2008

The DOT regulation, which would become effective August 25, requires railroads to directly observe urine collection in all federally-mandated drug tests involving either a return-to-duty after a positive or invalid test, or a follow-up test conducted after a positive or invalid test. Prior to directly observing the specimen donation, the collector also would be required to subject the worker to a “strip search,” because the new regulation states as follows:

“As the observer, you 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 you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination.”

The DOT’s “strip search” regulation is being challenged, in part, on the basis that the mandatory strip searches and observations violate the prohibition against unreasonable searches contained in the Fourth Amendment to the United States Constitution. In addition, review is being sought to determine whether DOT complied with the rule making process of the Administrative Procedures Act.

BLET National President Ed Rodzwicz blasted the new regulation.

“Forcing a railroad worker to submit to an embarrassing and humiliating strip search and observed collection without reasonable suspicion is an outrage,” he said.

Other unions participating in the lawsuit include: the Brotherhood of Maintenance of Way Employes Division; American Train Dispatchers Association; Brotherhood of Railroad Signalmen; Transportation Communications International Union; International Brotherhood of Electrical Workers; National Conference of Firemen and Oilers; and United Transportation Union.

In a statement, the BNSF Railway Executive Vice President Carl Ice said: “There is absolutely no tolerance for alcohol or drug use in our workplace. But we also believe that our employees are entitled to be treated with dignity and respect at the workplace, and this new regulation is an intrusion on employees.”

President Rodzwicz said that if this regulation had been in effect since FRA began keeping these statistics, almost 21,000 unnecessary strip searches and direct observations would have been required, “needlessly humiliating over 99.97 percent of all those required to submit to return-to-duty or follow-up testing.”

President Rodzwicz also said there is no reason to justify the DOT’s overly harsh and humiliating regulation.

“There is no documentation whatsoever of adulteration or substitution of a return-to-duty test in the railroad industry, and not one of the nearly 11,000 return-to-duty and follow-up tests conducted in 2006 and 2007 were invalidated because of adulteration or substitution,” President Rodzwicz said.

The joint petition for review was filed in the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals is expected to issue a schedule for conducting its review shortly