DOT Reinstates Observed Urination Drug Testing Rule for Safety-Sensitive Positions
Yesterday the Department of Transportation (DOT) reinstated its rule that employers must conduct observed urination drug testing for all return-to-duty and follow-up tests for transportation workers in safety-sensitive positions. The new regulations will apply to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries. Click here to read the DOT rule, which will take effect August 31.
This rule isn't new; as noted by the World of Work, the DOT issued the same rule a year ago. However, the D.C. Court of Appeals stayed implementation of the new rule until July 1 of this year, when it held that the rule was neither arbitrary nor capricious and did not violate employees' Fourth Amendment rights. Click here to read the court's decision in BNSF Railway Co. v. U.S. Department of Transportation.
Why the need for such strict scrutiny? According to the rule, observation is necessary "to allow the observer to check the individual for prosthetic or other cheating devices." Seriously. Such things do exist. The most famous is the Whizzinator, used by celebrities including actor Tom Sizemore. Now there's an endorsement. If you have employees that are subject to the new rule, just hope they don't suffer from shy bladder syndrome, or things are going to get really complicated.
Bus Driver's "Shy Bladder Syndrome" a Disability
A school bus driver who was demoted after his "shy bladder syndrome" left him unable to comply with his employer's drug testing procedures may proceed with claims under the Americans with Disabilites Act (ADA) according to a recent ruling from a Tennessee federal court. Click here to read the full opinion in Melman v. Metropolitan Government of Nashville.
In Melman, the plaintiff was required to submit to random drug tests. During two tests he could not provide an "adequate" urine sample, and explained that he could not because of a "shy bladder." A urologist diagnosed the plaintiff with paruresis (aka shy bladder syndrome) and offered to perform the urine sampling via catheterization. The employer declined that offer. Instead, it placed the plaintiff on unpaid leave, required him to attend a drug rehabilitation program at his own expense, and demoted him to a position as a bus monitor. (Notably, the plaintiff ultimately did provide a negative sample obtained via catheter.) The court denied the employer's motion to dismiss, holding that shy bladder syndrome substantially limited the plantiff's major life function of eliminating bodily waste.
Employers with drug testing programs should take note: employees who are unable to comply with standard drug testing procedures may have a qualifying disability, especially given the more liberal standards under the ADA Amendments Act. Employers should not shy away (okay, bad pun) from engaging in the interactive process with the employee to find ways that the employee can comply with the procedures - such as providing a sample through catheterization. The International Paruresis Association also provides suggestions for accommodating shy bladder syndrome.
