Effective August 31, 2009, all return-to-duty and follow-up drug testing conducted by  employers covered by Department of Transportation (DOT) testing regulations must be carried out under direct observation. In June 2008, the DOT issued new regulations for CDL drug testing programs to lower the risk of employees falsifying results. Not surprisingly, these direct observation provisions raised a number of legal concerns resulting in the implementation of the regulations being delayed until the courts fully considered the issues. 

On July 1, the United States Court of Appeals for the District of Columbia Circuit issued its opinion allowing the agency to move forward. On July 30, 2009, the agency published its final regulations requiring direct observation in the context of to return-to-duty testing of safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test.

Given this change, all return-to-duty and follow-up tests conducted on and after the effective date must be observed, no matter what the employer's policies or collective bargaining agreements state. This includes testing of individuals already currently in follow-up testing programs who will still be in those programs on and after August 31st.

For more information or assistance in updating policies, please contact Associated Industries In-House Counsel at 509.326.6885 or 800.720.4291.