DC Court of Appeals Upholds DOT Regulation Requiring Direct Observation of Certain Urine Drug Tests

The Federal Appeals Court for the District of Columbia has upheld the Department of Transportation's (DOT) revised regulation requiring that urine drug tests for transportation employees with safety-sensitive duties who are returning to work after failing or refusing to be tested be conducted under direct observation with partial disrobing. In BNSF Ry. Co. v. United States DOT (May 15, 2009), the court rejected claims by a railroad and several transportation unions that the rule violates the Administrative Procedures Act and the Fourth Amendment.

DOT regulations require that employees in the transportation industry who either fail or refuse to take a drug test successfully complete a drug treatment program and pass a series of urine tests before being permitted to perform any safety-sensitive duties. To prevent cheating, the DOT revised this regulation in 2008 to require that such tests be conducted under direct observation. Additionally, the regulation requires that immediately prior to all direct observation tests, employees must raise their shirts above the waist and lower their lower clothing to expose their genitals and allow the observers to verify the absence of any cheating devices. The partial disrobing requirement became effective on August 27, 2008; however, the D.C. Circuit stayed the direct observation requirement pending resolution of challenges to the requirement.

Upholding the regulations, the court found that the DOT did not act arbitrarily or capriciously in determining that that the growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the mandatory use of direct observation.

The court also rejected the plaintiffs' argument that both the DOT's suspicionless use of direct observation for returning employees and the partial disrobing requirement violate the Fourth Amendment. "Given the combination of the vital importance of transportation safety, the employees' participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures, we find the challenged regulations facially valid under the Fourth Amendment."