Several years ago, an NFL player made headlines when he was caught with a “Whizzinator” prosthetic device intended to be used to falsely provide a clean urine sample during a mandated drug test.  The proliferation of these devices and chemical agents for adulteration of test samples led the federal Department of Transportation to issue new regulations intended to preserve the integrity of driver drug testing.

These new rules mandate direct visual observation of the sample being provided.  For follow-up and return-to-duty testing, direct observations must begin no later than November 1.  A second provision requiring employees to raise and lower their clothing during all direct observation tests to check for use of prosthetic devices took effect on August 25.

These new procedures only apply to direct observation circumstances and not to other DOT-mandated testing.  For employers, these new observation requirements raise questions regarding employee privacy and the employer’s role in observing the sample collection.  While the federal DOT rules preempt state privacy statutes and common law requirements, many employers are simply uncomfortable with managers or other employees participating in direct observation tests.

In these situations, one alternative would be for the employer to modify its drug screening policy to require that all direct observation tests be performed at a third-party collection site.  This would remove the employer from participation in the direct observation of the specimen.  Some employers require that all sensitive drug screenings be performed by a third party, even reasonable suspicion tests not covered under the direct observation rules.

Employers with DOT drivers should review and modify their drug testing policies to comply with these new regulations.