AnnouncementAs of August 31, 2009, the Department of Transportation's Direct Observation collection procedures will be mandatory for all return-to-duty and follow-up drug testing. The U.S. Court of Appeals for the D.C. Circuit lifted the previous stay on July 1, 2009, following the Court’s unanimous decision to uphold the DOT's position in this matter. The language of 49 CFR 40.67(b) now reverts back to the version that became a final rule on June 25, 2008 which reads as follows:
§ 40.67 When and how is a directly observed collection conducted?
(b) 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.
Collective Bargaining Agreements
The recent announcement also states that the DOT is aware that some employers and labor organizations may have entered into collective bargaining agreements (CBAs) that prohibit or limit the use of direct observation collections in return-to-duty and follow-up testing situations. Employers and employees, of course, do not have the authority to agree to avoid compliance with the requirements of Federal law. When this final rule goes into effect, conducting all follow up and return-to-duty testing using direct observation collections will be a requirement of Federal law. Employers must use direct observation collections for such tests that take place after the effective date of this rule and any contrary provisions of CBAs in the present or in the future will be not be effective.
To read the full Federal Register announcement click here.
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