● DOT Return‐to‐Duty (RTD) and Follow‐Up drug tests are applicable to return‐to‐duty, safety‐sensitive transportation industry employees ‐‐ truck and bus drivers, train engineers, pilots, subway operators, ship captains, & pipeline emergency response personnel, among others ‐‐ who have already failed or refused to take a prior test.
● The Department carefully considered the safety need for this mandatory Direct Observation requirement; and the United States Court of Appeals for the District of Columbia Circuit unanimously agreed that the Department’s action was reasonable, justified, and Constitutional.
● Conducting all DOT RTD and Follow‐Up tests under Direct Observation has been an employer requirement of Federal law since August 31, 2009.
This includes the RTD and Follow‐Up tests of employees whose initial violations of DOT rules occurred or whose series of DOT Follow‐Up tests began before August 31, 2009.
This also includes employees determined by the Substance Abuse Professional (SAP) to need Follow‐Up drug testing in addition to Follow‐Up alcohol testing.
● Direct Observation must include a same gender observer’s check for prosthetic and other devices that could be used to cheat a drug test. This check is in addition to the observer’s subsequently watching the employee urinate into the collection container.
● If a collector, Medical Review Officer (MRO), Third Party Administrator (TPA), or other service agent learns that a Direct Observation collection using the required procedures was not conducted, the employer needs to be informed.
Upon learning that a Direct Observation collection using the required procedures was not conducted, the employer needs to direct the employee to have an immediate recollection under Direct Observation.
Subsequently, MROs will follow the procedures at 40.162(b) for working with multiple verified results for the same testing event.
● No other tests [e.g., Pre‐employment, Random] can be substituted for DOT RTD and Follow‐Up testing.
● Service Agents – such as SAPs, collectors, MROs, and TPAs – should periodically remind employers they serve that all DOT RTD and Follow‐Up tests must be conducted under Direct Observation.