The Department of Transportation passed a final rule, reinstating the requirements for observation collection of urine samples for all return-to-duty and follow-up drug tests, effective August 31.


The original regulation, which was enacted in 2008 as a way to prevent employees from cheating on drug tests, was put on hold after BNSF Railway Co. and nine other groups sued the Department over the new rule, according to published reports. The Department issued a stay until the court came to a decision.

On Nov. 20, 2008, the DOT decided to reinstate the old language of the rule until the stay was lifted, making direct observation collection an option for the employer, rather than mandatory. On July 1, the court ruled against the groups, lifting the stay on the regulation.

In May 2008, the court determined that direct observation was not arbitrary and capricious, taking into account the vast availability of cheating devices.

"We view this to be important in light of the fact that there has been a good deal of conflicting information in the transportation and drug testing industries about the requirements and because of the complexities of the various petitions, court actions, and rule changes on the matter," the DOT's final rule posting said.