You may recall that in the October 2008 Employer’s Legal Resource, we discussed new DOT regulations which were supposed to have taken effect August 2008 but which had been stopped by various court challenges. Specifically, the DOT decided to hold tight on the most controversial part of the new regulations: direct observation of urine collection.

For some time, the DOT permitted an employer to require urine collection under direct observation for follow-up or return-to-duty testing. The new regulations changed it from “may” to “must.” In other words, the DOT was requiring that urine collection for follow-up and return-to-duty testing be done under direct observation.

The DOT felt this was necessary due to the proliferation of devices which can be used to alter the results. To combat this, the DOT was asking that the employee lower pants and underwear to see if the employee was wearing a prosthetic device to cheat the system.

On May 25, the Court decided that, despite the intrusive nature of the procedure, the DOT was well within its rights to make such a regulation.

It is anticipated that the DOT will take steps to reinstate the regulation in the very near future so that all follow-up and return-to-duty testing be done on urine which was collected under direct observation. We will keep you posted.

By Kristen L. Brightmire, kbrightmire@dsda.com