In a decision released May 15, 2009, the U.S. Court of Appeals for the District of Columbia upheld a Department of Transportation (DOT) regulation that requires employees who are returning to safety-sensitive duties after having completed a drug treatment program due to failing or refusing to take a drug test, to submit to return to duty and follow up testing under "direct observation" conditions. This decision and the regulation it upholds applies to employers in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries that are subject to the DOT drug-testing regime. Under the regulation’s "direct observation" procedures, the employer must require a same-gender observer to “watch the urine go from the employee’s body into the collection container.” To comply, employees must raise their shirts above the waist and lower their clothing so as to expose their genitals and allow the observers to verify the absence of any devices that would permit the employee to cheat the test.
Previously, the employer had the option to require direct observation, but this was not mandatory under the former regulation. Concerned that employers were reticent to require direct observation and in light of the rise in commercially available devices, such as the "Whizzinator," that enable people to cheat on their drug tests, the DOT promulgated this new regulation requiring direct observation for all return to work and follow up tests conducted under the DOT’s auspices as of November 1, 2008.
Several transportation industry unions and the BNSF Railway Company challenged the new regulation, and the D.C. Circuit issued a stay of the direct observation requirement back on November 12, 2008. Impressed with evidence that demonstrated the growth of an entire industry focused on circumventing drug tests, coupled with evidence that employees that previously had tested positive or refused drug testing presented an elevated risk of cheating, the court in its May 15th decision found that the DOT had justified the direct observation requirement. From a constitutional standpoint, the court also found that "given the combination of the vital importance of transportation safety, the employees’ participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures, … the challenged regulations [are]facially valid under the Fourth Amendment."
At the conclusion of its decision, the court emphasized that, because this case presented only a facial challenge to the direct observation requirement, the court considered only “whether the tests contemplated by the regulations can ever be conducted.” The court expressed no view on either the merits of "any as-applied challenge to this rule" or the constitutionality of any other rule. As such, employers that will be governed by the direct observation requirement would be wise to ensure that, given the intrusion into privacy necessarily associated with the requirement, all persons or entities that conduct such tests on their behalf are properly trained in the DOT regulations and procedures and that they conduct such tests consistent with those regulations and procedures in a professional manner that preserves as best as possible the dignity of the testing subject.