Court Upholds Drug Test Rules Allowing ‘Direct Observation’

This story appears in the June 1 print edition of Transport Topics.

An appeals court has upheld federal rules requiring “direct observation” of drug tests for transportation workers who either have failed or refused to take a test as a condition of employment.

As the ruling on follow-up testing was issued, congressional legislation that would create a clearinghouse of drug test results from truck drivers was drawing praise from trucking groups.

In its May 15 ruling, the U.S. District Court for the District of Columbia denied the petition for review of the Department of Transportation’s observation requirement filed by BNSF Railway and eight rail labor organizations.

The rule upheld by the court was designed to prevent cheating on drug tests by employees in the trucking, aviation, rail, maritime and pipeline industries who are required to take follow-up tests after successfully completing drug treatment programs.

Prior to the rule, employers had the option of conducting return-to-duty and follow-up tests using direct observation.

BNSF and the labor groups argued the requirement of follow-up tests violated both the Administrative Procedure Act’s prohibition of “arbitrary and capricious” agency action and the Fourth Amendment’s protections against unreasonable searches.

The court ruled, however, that the “department’s considered justification for its policy is neither arbitrary nor capricious, and although we recognize the highly intrusive nature of direct-observation testing, we conclude that the regulation complies with the Fourth Amendment.”

Jim Swart, director of DOT’s office of drug and alcohol policy and compliance, said he was pleased with the ruling.

“Safety is the highest priority of the U.S. Department of Transportation and the upholding of our direct-observation drug testing rules helps to support this mission,” Swart said.

The rule, which was originally scheduled to go into effect in No-vember, was stayed by the court following BNSF’s challenge and remains unenforced “because there is an opportunity for the parties to seek rehearing of the court’s ruling,” Swart said.

Brotherhood of Locomotive Engineers and Trainmen National President Ed Rodzwicz said the decision “marks a dark day for BLET members, all transportation workers and all Americans.”

“As counsel pointed out during oral argument, never before has a U.S. court upheld suspicionless direct-observation testing of non-incarcerated civilians,” Rodzwicz said in a written statement.

The decision came days before a group of four senators, led by Sen. Mark Pryor (D-Ark.), introduced the Safe Roads Act, which would order DOT to implement “a cost-effective, feasible database of drug testing information for commercial drivers” and authorize $5 million a year to establish and operate it.

The bill was praised by American Trucking Associations.

Dave Osiecki, ATA vice president of safety, security and operations, said the federation was “very pleased” that the bill has been brought forward.

ATA has been a longtime advocate for a national clearinghouse for drug and alcohol test results.

“When a driver moves from one trucking company to another, some positive drug and alcohol test results are not being discovered by the hiring company because the results are not centrally tracked,” Osiecki said. “A national drug and alcohol clearinghouse will allow companies to more easily obtain this critical safety-related information during the hiring of commercial drivers.”

The Government Accountability Office highlighted issues within DOT’s drug enforcement program last year in a report to Congress that said drivers easily could just change jobs after a positive test.

Sen. Olympia Snowe (R-Maine), one of the bill’s co-sponsors, said the bill would “close the current loophole that allows irresponsible individuals to tarnish the good name of motor carrier operators.”

Fellow sponsor Sen. Ben Nelson (D-Neb.) added that the bill would give “trucking companies the confidence that they are putting safe drivers on the road to the benefit of those traveling our nation’s highways.”

Sen. Roger Wicker (R-Miss.) also co-sponsored the bill.