DOT Implements New Stricter Observed Drug Collection

Over the last two months we have written a variety of stories highlighting new regulations by the U.S. Department of Transportation (DOT) that will subject bus drivers, truck drivers and others to what some are calling “strip searches”.

The new law, which took effect Monday August 31, affects holders of commercial drivers licenses who are taking follow up drug tests after failing a previous test. The new law states an observer or collector must watch the driver urinate while taking the test. “Specifically, you are to observe the urine go from the employee’s body into the collection container”.

“Direct observation,” as the practice is known in drug testing and transportation circles, does not apply to the standard drug test many covered employees or truck drivers are required to take. Direct observation applies to drivers whose previous specimen was tampered with, tested positive for controlled substances or if the test is a return-to-duty test or follow-up test.

“In the past, employers had the option to use direct observation for these tests,” said Bob Ashby, deputy assistant general counsel for Regulation and Enforcement at the U.S. Department of Transportation. “The new rule removes this option and requires direct observation in these situations.”

It should be pointed out that return-to-duty and follow-up tests make up only a very small percentage of all the drug tests; the vast majority of the millions of DOT-required drug tests that occur every year do not involve direct observation.

At the state, county and city levels, the law could affect solid waste workers, transportation and fleet employees, workers in the water and sewer division and parks and recreation drivers.

The move by DOT comes after repeated instances of drug-testers trying to game the system through altered urine samples and even going so far as to attach prosthetic devices such as the Whizzinator, which can be bought online for about $160.

The new regulation makes a point of addressing the prosthetic devices. “As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device,” the regulation reads.

Many company human resources officials are very concerned about the impact on observers, because it may be hard to find someone that wants to do this. Since collection sites are not required to have same gender collectors, the responsibility would fall on the employer to provide a same gender observer who can be a Supervisor within the company/employer. Also the cost of observed collection will probably be more because collection sites may have to be staffed with both male and female trained observers.

The DOT carefully considered the safety need for this mandatory direct observation requirement; and the U.S. Court of Appeals for the District of Columbia Circuit unanimously agreed that the DOT’s action was reasonable, justified, and Constitutional.

Federal Law Introduced Aimed at Devices to Defraud a Drug Test

In late February of this year, the Drug Testing Integrity Act of 2009 was intruded into the 11th Congress. Republican Reps. Jean Schmidt (Ohio), Lee Terry (Nebraska) and Democratic Rep. Eliot Engel (N.Y.) make the argument, in a letter to colleagues, that if pro baseball player Alex Rodriguez could not get away with using drugs, then neither should ordinary Americans.

“The Drug Testing Integrity Act, H.R. 858, would make it unlawful to knowingly manufacture, market, sell, ship or otherwise provide an individual with any product designed for the purpose of assisting in defeating a drug test,” reads the letter.

“What if A-Rod and others had been able to cheat that test and prevent detection of their drug use forever? Baseball history would be different, but that isn’t a life threatening situation. On the other hand, the fact that a school bus driver can cheat a drug test IS potentially life threatening and constitutes a problem that should compete with A-Rod for the headlines.”

Outlawing a product “intended” to get around drug tests may just result in a growth industry for products with euphemistic names, making enforcement difficult. Manufacturers of these products are increasingly savvy about where they do business. Most do it on the internet but are located in states and even countries that don’t have any pre-existing laws against products like these.

Thousands of internet sites provide information on how to cheat on drug tests, and many of the techniques have been publicized for decades. No sooner had regulations been developed to institute President Ronald Reagan’s 1986 call for a drug-free federal workplace than people began searching for ways to evade detection, said Amitava Dasgupta, PhD, Professor of Pathology and Laboratory Medicine at the University of Texas Medical School in Houston. Fortunately labs have been successful, so far, at keeping up with the methods employed, but “it’s a cat and mouse game,” Dasgupta said. Just when labs catch up with one subterfuge, another comes along.

Toyota Introduces Breathalyzer Technology for Commercial Vehicles

First it was electronic on-board record (EOBR’s), than came on-board cameras, now Toyota Motor Corp. has began road testing a breathalyzer that is mounted on the instrument panel and locks a truck’s ignition if it detects the driver has had too much to drink.
The road tests involve 30 commercial vehicles. The goal is to give transportation and delivery companies better control of their fleets. Toyota has no immediate plans to introduce the technology in passenger vehicles.

Toyota’s breathalyzer, developed jointly with its truck subsidiary, Hino Motors Ltd., is about the size of a cell phone and combines an alcohol detection sensor and digital camera. As the driver blows into the sensor, a camera photographs the test-taker’s face. The dispatcher can check the photo to make sure the test-taker was indeed the authorized driver.

If the driver tests as inebriated, the system either warns the driver or locks the vehicle’s ignition, depending on the level of alcohol detected; it then contacts the fleet administrator.

Toyota’s breathalyzer comes on the heels of similar technology from Nissan Motor Co.

Nissan’s system uses sensors embedded in the transmission shifter knob and head rest to detect alcohol in the driver’s perspiration or exhaled air, instead of requiring the driver to blow into a sensor. It also uses a camera to monitor the driver’s state of consciousness.