Employment: News From The DOT On Direct Observation


For those of you subject to DOT drug and alcohol testing, you will recall that there has been considerable activity regarding the rule it first announced last year. We covered this in our October 2008 Employer’s Legal Resource. After the rules were announced, lawsuits were filed challenging the DOT’s rule regarding when the collector should directly observe the employee providing a urine specimen. The Court eventually held that the DOT’s rule was valid, which we discussed in our June 2009 Employer’s Legal Resource.

But, we continued to wait to hear from the DOT. Now, we have heard.

On July 30, 2009, the DOT issued its final rule, which you can view here. The majority of the notice concerns the history, how we got here. The actual rule is quite simple. Section 40.67(b) will read:

As an employer, you must direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.

This rule is effective August 31, 2009.

To ensure compliance, you should do two things. First, be sure your written DOT drug and alcohol policy does not require a change. Some will. You have until August 31 to get this done. Second, be sure the collection facility understands that they absolutely must collect under direct observation when conducting a return-to-duty or follow-up test on or after August 31, 2009.

Remember, this rule does not apply to testing you may conduct which is not required by the DOT.

Finally, if you are subject to a collective bargaining agreement, you cannot delay implementing this rule. The DOT was clear to address this: “Employers must use direct observation collections for such tests that take place after the effective date of this rule [August 31], and any contrary provisions of CBAs in the present or in the future will not be effective.” While true, it is probably a good labor relations idea to let your union business managers or representatives know this change will take place August 31.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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