CLEVELAND, February 12 — The United States District Court of Appeals for the District of Columbia will hear an appeal of the Department of Transportation’s (DOT) proposed “strip search” drug testing regulation on March 26.
The BLET, eight other unions, and the BNSF Railway are fighting the regulation, which would require direct observation of urine specimen donation in all return-to-duty and follow-up drug tests. The unions and BNSF argued that the rule violates the Fourth Amendment of the U.S. Constitution, which protects citizens from unreasonable searches.
This provision, which changes Section 40.67(b) of Title 49 of the Code of Federal Regulations, originally was published on June 25, 2008, and was scheduled to take effect on August 25, 2008, along with a series of other changes to the regulation. However, the unions and BNSF Railway have successfully argued for delays in implementation.
Under current regulations, a railroad has the discretion to require direct observation during an individual return-to-duty or follow-up test, but is not required to do so. This discretion will be replaced by a mandate if the new DOT regulation goes into effect.
Among the other changes was the addition of Section 40.67(i), which requires a “strip search” in all instances of direct observation. Specifically, railroads 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 …, by turning around, that they do not have a prosthetic device [that could be used to deliver a substituted urine specimen].” After the railroad has “determined that the employee does not have such a device, [it] may permit the employee to return clothing to its proper position for observed urination.”
The nine Petitioner unions are the American Train Dispatchers Association, the Brotherhood of Locomotive Engineers and Trainmen, the Brotherhood of Maintenance Way Employes Division of the Teamsters Rail Conference, the Brotherhood of Railroad Signalmen, the International Brotherhood of Electrical Workers, the International Brotherhood of Teamsters, the National Conference of Firemen & Oilers District of Local 32BJ, SEIU, the Transportation Communications International Union, and the United Transportation Union. The BNSF Railway also is participating in the legal action.
BLET National President Ed Rodzwicz condemned the direct observation rule.
“The DOT admits that its only evidence in support of strip searches and mandatory direct observation is anecdotal, proving once again that the new rule is a solution in search of a problem,” President Rodzwicz said. “We will continue to pursue every available avenue to protect BLET members from the humiliating and invasive course DOT has insisted upon.”