The Department of Transportation has issued a final rule that provides a start date for mandatory direct-observation drug testing.
The provision was stayed by the United States Court of Appeals for the District of Columbia Circuit late last year and lifted in July. The circumstances the court took into account included the “recent development of a wide array of available cheating devices and the substantial incentive for these return-to-duty employees to use such devices to cheat on required return-to-duty and follow-up drug tests.”
The court’s unanimous decision also held that the rules did not violate the Fourth Amendment constitutional prohibition on unreasonable searches and seizures, taking into account, among other factors, the diminished expectation of privacy of employees who have failed
or refused a prior drug test.
“We all know where the road paved with good intentions leads. The first layer of pavement was to require drug and alcohol testing of persons who should have
the morals to perform safety-sensitive functions unimpaired by mind-altering substances. Once that first step was taken, the government was essentially provided with free rein to invade privacy to the point where the court determined that it was reasonable to suspect everyone at every level of the testing process,” Sarah MacLeod, executive director of the Aeronautical Repair Station Association, told AIN.
The Transportation Workplace Drug and Alcohol Testing Program, which took effect August 31, requires direct-observation drug testing for return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a drug test. During the procedure employees taking the test must raise their shirt, blouse or dress above the waist and lower clothing and underwear to prove they are not wearing a prosthetic device; an observer must then watch the actual filling of the cup.
“The requirement that someone has to observe another performing a bodily function is repugnant to me,” MacLeod said.