http://www.ble.org/pr/news/newsflash.asp?id=4682
from August 25 to November 1 a new regulation that would subject employees
to mandatory direct observation during drug tests conducted when a
transportation worker returns to work after a positive drug test and
during follow-up drug tests.
The current DOT regulation, which will remain in effect for the time
being, requires direct observation of urine collection only after an
invalid test, and is discretionary during return-to-duty and follow-up
tests.
DOT has not delayed implementation of a related requirement that would
subject workers to a "strip search" in those situations when a direct
observation will be made. Section 40.67(i) states as follows:
"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. After you have determined that the employee does
not have such a device, you may permit the employee to return clothing to
its proper position for observed urination."
It is expected that the postponement will be published in the August 25
Federal Register. Also, the DOT will open a 30-day public comment period,
during which time interested parties may comment on whether direct
observation should be mandatory in all return-to-duty and follow-up tests.
In mid-August, the BLET along with seven other rail unions and the BNSF
Railway, filed a lawsuit challenging both aspects of the new regulation on
the grounds that they violated the Fourth Amendment of the
Constitution, which protects citizens from unreasonable searches. The
joint petition for review was filed in the United States Court of Appeals
for the
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