CLEVELAND, October 22 — Ignoring numerous petitions for consideration, the U.S. Department of Transportation is going forward with a rule that subjects rail and transit workers to a “strip search” during mandatory drug testing.
The DOT’s amendment to its Procedures for Transportation Workplace Drug and Alcohol Testing Programs will become effective on November 1. The amendment will now require direct observation of urine specimen collection in all cases involving a return-to-duty following a positive drug test and a follow-up test after a positive drug test.
This provision, which changes Section 40.67(b) of Title 49 of the Code of Federal Regulations, originally was published on June 25 and was scheduled to take effect on August 25 along with a series of other changes to the regulation. 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 on November 1.
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.”
In mid-August, the BLET — along with seven other rail unions and the BNSF Railway — filed a Petition for Review with the United States Court of Appeals for the District of Columbia Circuit, challenging both the strip search and the mandatory direct observation provisions on constitutional and statutory grounds. The unions succeeded in obtaining a delay in enforcement of the regulation to November 1, and argued that the rule violates the Fourth Amendment of the U.S. Constitution, which protects citizens from unreasonable searches. The case has been docketed and the parties are awaiting a schedule from the court.
BLET National President Ed Rodzwicz condemned the direct observation rule and said the union would continue to search for ways to protect BLET members from this forced invasion of privacy.
“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.”