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.
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.
Effective today, August 31, 2009, Direct Observation collections are mandatory for all DOT Return-to-Duty and Follow-Up drug testing.
How to "Just Say No" A look at drug and alcohol regulations By Fred Workley Fred Workley Drug and alcohol testing is a way of life for aviation industry employees. This is...
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