Whither the Whizzinator?

When I was younger I possessed the bike of my life … a Whizzer motor bike. Remember? They came mounted on a Schwinn spring fork bike or in a box with just the motor and the mounting parts … $99 complete for the kit. How times change.

The “Whizzinator” has nothing to do with a bike motor but I thought when reading of it in the case cited below that the comparison was interesting simply because of the similar-sounding name. Here is a summary of the case. Read on.

The case
The D.C. Federal Court of Appeals just published its recent decision concerning the arcane subject of direct observation of drug enforcement testing. The petitioner in the case was a railway company employer and the respondent was the U.S. Department of Transportation.

We have discussed the issue of drug testing many times in this column and it will be useful to review it again here because it is of some importance to all who work in the common carrier transportation business.

Testing and permanent bar
As we all should know by now, there are several events that prompt drug and alcohol testing. They include pre-employment, random, reasonable cause, return to duty, and post accident. Those of us in any safety-sensitive job are mostly familiar with random urine drug testing procedures.

The important thing to remember is the permanent bar from performance of a safety-sensitive job function after what I call one bite at the apple. An employee who has a verified positive drug test result on two drug tests required by appendix I to Part 121, of the regulations (including Part 135, 145) is permanently precluded from performing for his employer and any other, the safety-sensitive duties the employee performed prior to the second drug test. It becomes very important to an employee in the transportation business who has one verified positive drug test to pass any second test he or she is required to take, randomly or otherwise.

Further, we should keep in mind that an employee who has engaged (been caught) in a prohibited drug use during the performance of a safety-sensitive function is permanently precluded from performing that function for any employer (no bite).

These rules, of course, apply to alcohol use as well as illegal drug use. Alcohol misuse is a far greater problem for society than the use of illegal drugs. Alcohol is, of course, a drug — but not an illegal drug. It is not illegal for an employee to consume alcohol so long as he or she is not under the effects of alcohol while performing a safety-sensitive job. However, due to the fact that alcohol is metabolized faster than most illegal drugs, the time period in which to test is much shorter. The rules are spelled out in the regulations.

Testing was put in place by the Omnibus Transportation Employee Testing Act of 1991 and the regulations were published pursuant to this statute.

The rule
Employees who fail to take or are found positive on a drug test are removed from any safety-sensitive position until they complete drug treatment under a formal substance abuse program. After successful completion of the abuse program the employee must pass a return-to-duty drug test before resuming a safety-sensitive job. Also, during the following 12 months, he or she must successfully pass six random follow-up urine tests in order to continue on the job. The Department, in support of “direct observation” requirements, states that knowing this fact in advance provides these people an opportunity to easily obtain cheating devices and keep them handy, even for unannounced follow-up tests.

Direct observation
Currently, and prior to the rulemaking in this case, which has been stayed pending a final decision, employers have the option of conducting return-to-duty and follow-up tests using so-called “direct observation” which requires a same gender observer to watch the urine go from the employee’s body into the collection container.

In 2008 the DOT became concerned that most employers were not using the direct observation method. It was concerned about the increase in products designed to allow cheating on the tests. Therefore, it put into effect the direct observation rule for all return-to-duty and follow-up testing. This new regulation also requires that employees must raise their shirts above their waists and lower their clothing so as to expose their genitals and allow the observer to verify the absence of any cheating devices.

The petitioners urged the court to set aside the DOT’s regulation on the basis that it was a violation of the Fourth Amendment to the Constitution protection against unreasonable searches and that it was an arbitrary and capricious action by the agency.

Arguments … the Whizzinator
The petitioners pointed out that the government had successfully prosecuted the makers of one prominent prosthetic device called the “Whizzinator” for conspiring to defeat federal drug tests. This device looked like real human anatomy, color matched, with all details, so that it could be secured to your body and used to deliver synthetic or drug-free urine, and appear as a natural part of the human body. Both male and female versions were apparently available. (One can only wonder if exhibits were presented to the court.) This was, of course, found to be in violation of the conspiracy laws to defeat federal drug tests.

The government reiterated that the cheating was pervasive and there were hundreds of cheating methods, including the “Whizzinator,” advertised on the Internet. The petitioners wanted the government to show direct evidence of people using cheating devices. However, there was really no way to do this, simply because any successful use of the devices would not show up in any statistical collection. There was just no way to show statistical evidence of cheating.

The court said that “the Department did not act arbitrarily or capriciously in concluding 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 quoted from another case where it was said that “it is one thing to set aside an agency action because of failure to produce empirical data that can readily be obtained. It is something else to insist upon obtaining the unobtainable.”

Further argument was presented stating that the government’s conclusion that returning employees have a heightened incentive to cheat than employees not subject to direct observation was discriminatory, arbitrary, and capricious. The government’s response included that the heavy sanctions reserved for repeat offenders was a strong incentive to cheat. They specifically cited the statutory permanent bar as to second offenders in the aviation industry. The agency cited another drug testing expert who said that “persons who have broken trust with the traveling public by testing positive for a prohibited substance, although they knew they would be drug tested, are high risk for using that substance again and motivated to conceal their conduct.”

Still another expert stated that “those who have tested positive in the past and who continue to abuse drugs, are motivated by their addiction to adulterate, substitute, or use prosthetic-type devices to provide a clean specimen at the collection site.”

The petitioners also claimed that returning employees are really of lower risk because they have successfully completed drug treatment programs. In opposition, the government cited statistics to show that return-to-duty and follow-up testing is far more prone to produce positive results on the order of two to four times higher than random testing. Then, in reply, the petitioners simply say that these statistics measure only failures, not cheating. The government said that the figures show that these people are more likely to use drugs, not that they are more honest.

Petition denied
This court put much emphasis on the fact that follow-up testing must show a “clean history” (at least for a year) for the second offender or he or she is taken out of the safety-sensitive system. The court’s bottom line in support of direct observation is that there are four basic reasons that they should be directly observed and removed from the system for cause, as follows: transportation safety is of the highest importance, the people are voluntarily participating in a pervasively regulated industry, they have prior violations of the drug regulations, and the ease of obtaining cheating devices that can defeat standard testing procedures.

The court concluded that the agency’s action was not arbitrary and capricious and did not violate the Fourth Amendment to the Constitution. It should be implemented following any further appeal proceedings.

P.S. The DOT announced on July 1, 2009 that the U.S. D.C. Court of Appeals issued its Mandate in BNSF Railway Co. vs. DOT. This means that the stay issued with the decision has been lifted and that the court’s decision is final. Direct observation is now the law as soon as it is published in the Federal Register.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an A&P certificate and is an ATP rated pilot. E-mail: aerolaw@att.net.

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