Yesterday the Department of Transportation (DOT) reinstated its rule that employers must conduct observed urination drug testing for all return-to-duty and follow-up tests for transportation workers in safety-sensitive positions.  The new regulations will apply to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries.  Click here to read the DOT rule, which will take effect August 31.  

This rule isn’t new; as noted by the Stoel Rives World of Employment, the DOT issued the same rule a year ago.  However, the D.C. Court of Appeals stayed implementation of the new rule until July 1 of this year, when it held that the rule was neither arbitrary nor capricious and did not violate employees’ Fourth Amendment rights.  Click here to read the court’s decision in BNSF Railway Co. v. U.S. Department of Transportation. 

Why the need for such strict scrutiny?   According to the rule, observation is necessary "to allow the observer to check the individual for prosthetic or other cheating devices."  Seriously.  Such things do exist.  The most famous is the Whizzinator, used by celebrities including actor Tom Sizemore.  Now there’s an endorsement.  If you have employees that are subject to the new rule, just hope they don’t suffer from shy bladder syndrome, or things are going to get really complicated.