DOT Drug/Alcohol Testing Developments

DOT Notice of Proposed Rulemaking

Thursday, February 4, 2010 15:25

The DOT issued this NPRM, http://edocket.access.gpo.gov/2010/pdf/2010-2315.pdf, to align its regulated-industry drug testing with the Department of Health and Human Services’ (HHS) laboratory drug testing requirements. Proposals include:

Testing for MDMA (Ecstasy);

Lowering cutoff levels for cocaine and amphetamines;

Conducting mandatory initial testing for heroin;

Authorizing employers to use HHS-certified Instrumented Initial Test Facilities to conduct initial drug testing; and

Aligning testing definitions with HHS definitions.

Comments to the NPRM should be submitted by April 5, 2010.

Medical Use of Marijuana Remains a DOT Regulation Violation

Friday, October 30, 2009 13:01

On October 19, 2009, the U.S. Department of Justice (DOJ) issued guidance to federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana”. On October 22, 2009, the U.S. Department of Transportation (DOT) issued a notice advising that the DOJ’s guidance has no impact on the DOT’s drug and alcohol testing regulations that prohibit the use of marijuana by safety-sensitive transportation employees. The applicable DOT regulation, 49 CFR Part 40.151 (e), clearly states that use of “medical marijuana” under a state law does not constitute a valid medical explanation under federal law and will be considered a positive test result.

Direct Observation Collection for Return-to-Duty and Follow-up Testing

Monday, August 3, 2009 10:27

August 3, 2009

Effective August 31, 2009, direct observation collection procedures are mandatory for federally-mandated return-to-duty and follow-up testing.

July 1, 2009

The US Court of Appeals decision became final. As a result, the stay has been lifted on direct observation drug testing rules applicable to return-to-duty and follow-up testing. The Department of Transportation will issue a Final Rule in the Federal Register providing a start date for the mandatory observed collections in all return-to-duty and follow-up testing situations. Until the date has been established, direct observation collections for these types of tests remain an employer’s option.

May 15, 2009

The US Court of Appeals for the District of Columbia Circuit unanimously upheld the DOT’s direct observation drug testing rules for return-to-duty and follow-up testing. Because there is an opportunity for the parties to seek rehearing of the ruling, the Court’s stay of these rules remains in effect. As such, until further notice, direct observation collections for follow-up and return-to-duty testing remain an employer option.

November 20, 2008

The DOT issued a Final Rule dealing with direct observation for return-to-duty and follow-up testing (49 CFR 40.67(b)). That section of the regulation will read, pending further order of the United States Court of Appeals for the District of Columbia Circuit, as follows:

40.67 When and how is a directly observed collection conducted?

(b) As an employer, you may direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.

November 12, 2008

The U.S. Court of Appeals for the D.C. Circuit again delayed the mandatory Direct Observation (DO) requirement for DOT return-to-duty and follow-up tests.

October 31, 2008

The U.S. Court of Appeal for the D.C. Circuit temporarily delayed the November 1st Direct Observation (DO) requirement for DOT return-to-duty and follow-up tests. This is an “administrative stay” until the Court completes its review on the matters. Therefore, DO for return-to-duty and follow-up testing will continue to be an employer option, rather than mandatory.

October 22, 2008

The DOT issued its notice responding to comments on the amendment to 49 CFR 40.67(b). Effective November 1, 2008, direct observation collections will be required for all DOT return-to-duty and follow-up testing.

August 25, 2008

The DOT changed the effective date for mandatory direct observation (DO) for follow-up and return-to-duty testing to November 1, 2008. The DOT is seeking comments [for 30 days] about whether DO for follow-up and return-to-duty testing should be mandatory.

The rest of the June 25, 2008 final rule goes into effect on August 25, 2008, as scheduled, including the new DO procedures which require observers to check for prosthetic and other devices when specimen collections are observed.

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