New DOT Drug and Alcohol Testing Regulations Will Become Effective August 25, 2008

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August 14, 2008

On August 25, 2008, certain newly created U.S. Department of Transportation drug and alcohol testing regulations will become effective. The new regulations amend or create new sections to 49 C.F.R. Part 40, and contain new or revised guidance on issues related to adulterated, substituted, diluted and invalid urine specimens. While most of the new regulations address responsibilities of medical review officers, collectors and laboratories, employers in all D.O.T.-regulated industries should be aware of the following requirements:

  1. All return-to-duty and follow-up drug tests must be collected under direct observation.
  2. The definition of “refusal to test” has been expanded to include the following:
    • admitting to the collector or MRO that the specimen was adulterated or substituted
    • possessing or wearing a prosthetic or other device that could be used to interfere with the collection process; and
    • in the case of a directly observed or monitored collection in a drug test, failing to permit the observation or monitoring of the provision of a urine specimen, which now includes: failing to follow the observer’s instructions to raise clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine whether there is any prosthetic or other device that could be used to interfere with the collection process.
  3. Certain definitions have been revised, including definitions of “adulterated specimen,” “dilute specimen” and “substituted specimen” (among others) and new definitions have been added for the terms “aliquot,” “limit of detection,” “non-negative specimen,” “oxidizing adulterant” and “screening test.”

The AFL-CIO’s Transportation Trades Department has asked D.O.T. to reconsider and stay implementation of the requirement that employees who previously received a positive test result for a banned drug provide urine specimens under direct observation as defined in the new regulation. The TTD claims that D.O.T. failed to afford the public proper notice and opportunity for comment prior to adopting the new rule, which it regards as exceedingly invasive. A D.O.T. spokesperson reportedly has said the agency will review the labor group’s request and take it under consideration.

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at  Jackson Lewis LLP is a national workplace law firm with offices nationwide

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