In response to questions and concerns raised by transportation industry and union groups, the U. S. Department of Transportation (“DOT”) has announced a delay in the initial effective date for mandatory direct observation in follow-up and return-to-duty testing until November 1, 2008.  DOT has also established a 30 window for comments regarding whether direct observation for follow-up and return-to-duty testing should be mandatory.

In a final rule issued on June 25, 2008, DOT mandated specimen validity testing in all drug testing performed in DOT-regulated industries and made comprehensive modifications to 49 CFR Part 40 regarding responsibilities relating to adulterated, substantiated, diluted, and invalid urine specimens, all effective August 25, 2008.  The new notice found at Federal Register  [Vol. 73, No. 166, pg. 50222]  affects only the effective date of mandatory direct observation for follow-up and return-to-duty testing under the revised 49 CFR 40.67(b).  The remainder of the final rule – including the new direct observation procedures, which requires observers to check for prosthetic and other devices during observed specimen collections – went into effect as of August 25, 2008, as scheduled.

As a result of the new guidance, conduct of direct observation for follow-up and return-to-duty testing remains at the discretion of the employer until November 1, 2008.

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