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News of Interest to Our Clients

Direct Observation Collections Required for DOT Return-to-Duty and Follow-Up Tests, Effective August 31, 2009

As of August 31, 2009, federal DOT regulations require the direct observation of urine drug screen collections for all return-to-duty and follow-up testing. The new provisions took effect following action by the U.S. Court of Appeals for the District of Columbia, which found that the rules were not arbitrary or capricious and did not violate Fourth Amendment prohibitions on unreasonable searches and seizures.

As with other DOT direct observation collections conducted since August 25, 1998, the new DOT rules require that a same gender observer check for prosthetic and other devices that could be used to cheat a drug test.  This is in addition to the observer’s subsequently watching the person urinate into the collection container.

Part 40 of Title 49, Code of Federal Regulations, authorizes and requires directly observed collections when:

  • The employee attempts to tamper with his or her specimen at the collection site, i.e., the specimen temperature is outside the acceptable range; the specimen shows signs of tampering; or the collector finds an item in the employee’s packets or wallet which appears to be brought into the site to contaminate a specimen; or the collector notes conduct suggesting tampering
  • The Medical review Officer (MRO) orders the direct observation because (1) the employee has no legitimate medical reason for certain atypical laboratory results or (2) the employee’s positive or refusal (adulterated/substituted) test result had to be cancelled because the split specimen test could not be performed.
  • The test is a Follow-Up test or a Return-to-Duty test.
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