IF, big if, the statute is expanded then perhaps there will be less privacy, but that will be done by legislation and unions etc will have opportunity to comment to their representatives, so in the end I doubt it would change.

IF, big if, the statute is expanded then perhaps there will be less privacy, but that will be done by legislation and unions etc will have opportunity to comment to their representatives, so in the end I doubt it would change.

(1) You must mark the “reason for test” block (Step 1) the same as for the first collection.

(2) You must check the “Observed, (Enter Re-mark)” box and enter the reason (see § 40.67(b)) in the “Remarks” line (Step 2).

(f) In a case where two sets of specimens are being sent to the laboratory because of suspected tampering with the specimen at the collection site, enter on the “Remarks” line of the CCF (Step 2) for each specimen a notation to this effect (e.g., collection 1 of 2, or 2 of 2) and the specimen ID number of the other specimen.

(g) As the collector, you must ensure that the observer is the same gender as the employee. You must never permit an opposite gender person to act as the observer. The observer can be a different person from the collector and need not be a qualified collector.

(h) As the collector, if someone else is to observe the collection (e.g., in order to ensure a same gender ob-server), you must verbally instruct that person to fol-low procedures at paragraphs (i) and (j) of this sec-tion. If you, the collector, are the observer, you too must follow these procedures.

(i) As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appro-priate, above the waist; and lower clothing and un-derpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination.

(j) As the observer, you must watch the employee urinate into the collection container. Specifically, you are to watch the urine go from the employee's body into the collection container.

(k) As the observer but not the collector, you must not take the collection container from the employee, but you must observe the specimen as the employee takes it to the collector.

(l) As the collector, when someone else has acted as the observer, you must include the observer's name in the “Remarks” line of the CCF (Step 2).

(m) As the employee, if you decline to allow a direct-ly observed collection required or permitted under this section to occur, this is a refusal to test.

(n) As the collector, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.

———————————————————

From my perspective, this case is constitutionally disturbing. Yes, it is, as you pont out, a decision upholding a statute as constitutional but not just any statute. Think about it, what is to stop them from enlarging the scope and amending the statute to say that it applies to all persons no matter if they have tested positive or not before?

Yes, life will go on but with just a little less privacy than you had before May 15th, 2009.

(1) You must mark the “reason for test” block (Step 1) the same as for the first collection.

(2) You must check the “Observed, (Enter Re-mark)” box and enter the reason (see § 40.67(b)) in the “Remarks” line (Step 2).

(f) In a case where two sets of specimens are being sent to the laboratory because of suspected tampering with the specimen at the collection site, enter on the “Remarks” line of the CCF (Step 2) for each specimen a notation to this effect (e.g., collection 1 of 2, or 2 of 2) and the specimen ID number of the other specimen.

(g) As the collector, you must ensure that the observer is the same gender as the employee. You must never permit an opposite gender person to act as the observer. The observer can be a different person from the collector and need not be a qualified collector.

(h) As the collector, if someone else is to observe the collection (e.g., in order to ensure a same gender ob-server), you must verbally instruct that person to fol-low procedures at paragraphs (i) and (j) of this sec-tion. If you, the collector, are the observer, you too must follow these procedures.

(i) As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appro-priate, above the waist; and lower clothing and un-derpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination.

(j) As the observer, you must watch the employee urinate into the collection container. Specifically, you are to watch the urine go from the employee's body into the collection container.

(k) As the observer but not the collector, you must not take the collection container from the employee, but you must observe the specimen as the employee takes it to the collector.

(l) As the collector, when someone else has acted as the observer, you must include the observer's name in the “Remarks” line of the CCF (Step 2).

(m) As the employee, if you decline to allow a direct-ly observed collection required or permitted under this section to occur, this is a refusal to test.

(n) As the collector, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.

———————————————————

From my perspective, this case is constitutionally disturbing. Yes, it is, as you pont out, a decision upholding a statute as constitutional but not just any statute. Think about it, what is to stop them from enlarging the scope and amending the statute to say that it applies to all persons no matter if they have tested positive or not before?

Yes, life will go on but with just a little less privacy than you had before May 15th, 2009.

This response is too long for one comment. So I am breaking into two comments.
Dear SparkyWD-

You are correct, the statute at issue is 49 CFR 40.67. I would urge you to read the opinion and you may do so at: http://www.jonesactquestions.com/newsgeneral/gene…

I have set out for the readers 49 CFR 40.67 in its entirety below (plus Comment#2):

Effective: November 20, 2008

Code of Federal Regulations Currentness
Title 49. Transportation
Subtitle A. Office of the Secretary of Transportation
Part 40. Procedures for Transportation Workplace Drug and Alcohol Testing Pro-grams (Refs & Annos)
Subpart E. Urine Specimen Collections

§ 40.67 When and how is a directly observed collection conducted?

(a) As an employer, you must direct an immediate collection under direct observation with no advance notice to the employee, if:

(1) The laboratory reported to the MRO that a specimen is invalid, and the MRO reported to you that there was not an adequate medical ex-planation for the result;

(2) The MRO reported to you that the original positive, adulterated, or substituted result had to be cancelled because the test of the split speci-men could not be performed; or

(3) The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to you as negative-dilute and that a second collection must take place under direct observation (see § 40.197(b)(1)).

(b) As an employer, you may direct a collection un-der direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.

(c) As a collector, you must immediately conduct a collection under direct observation if:

(1) You are directed by the DER to do so (see paragraphs (a) and (b) of this section); or

(2) You observed materials brought to the collec-tion site or the employee's conduct clearly indicates an attempt to tamper with a specimen (see §§ 40.61(f)(5)(i) and 40.63(e)); or

(3) The temperature on the original specimen was out of range (see § 40.65(b)(5)); or

(4) The original specimen appeared to have been tampered with (see § 40.65(c)(1)).

(d)(1) As the employer, you must explain to the employee the reason for a directly observed collection under paragraph (a) or (b) of this section.

(2) As the collector, you must explain to the em-ployee the reason, if known, under this part for a directly observed collection under paragraphs (c)(1) through (3) of this section.

This response is too long for one comment. So I am breaking into two comments.
Dear SparkyWD-

You are correct, the statute at issue is 49 CFR 40.67. I would urge you to read the opinion and you may do so at: http://www.jonesactquestions.com/newsgeneral/gene…

I have set out for the readers 49 CFR 40.67 in its entirety below (plus Comment#2):

Effective: November 20, 2008

Code of Federal Regulations Currentness
Title 49. Transportation
Subtitle A. Office of the Secretary of Transportation
Part 40. Procedures for Transportation Workplace Drug and Alcohol Testing Pro-grams (Refs & Annos)
Subpart E. Urine Specimen Collections

§ 40.67 When and how is a directly observed collection conducted?

(a) As an employer, you must direct an immediate collection under direct observation with no advance notice to the employee, if:

(1) The laboratory reported to the MRO that a specimen is invalid, and the MRO reported to you that there was not an adequate medical ex-planation for the result;

(2) The MRO reported to you that the original positive, adulterated, or substituted result had to be cancelled because the test of the split speci-men could not be performed; or

(3) The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to you as negative-dilute and that a second collection must take place under direct observation (see § 40.197(b)(1)).

(b) As an employer, you may direct a collection un-der direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.

(c) As a collector, you must immediately conduct a collection under direct observation if:

(1) You are directed by the DER to do so (see paragraphs (a) and (b) of this section); or

(2) You observed materials brought to the collec-tion site or the employee's conduct clearly indicates an attempt to tamper with a specimen (see §§ 40.61(f)(5)(i) and 40.63(e)); or

(3) The temperature on the original specimen was out of range (see § 40.65(b)(5)); or

(4) The original specimen appeared to have been tampered with (see § 40.65(c)(1)).

(d)(1) As the employer, you must explain to the employee the reason for a directly observed collection under paragraph (a) or (b) of this section.

(2) As the collector, you must explain to the em-ployee the reason, if known, under this part for a directly observed collection under paragraphs (c)(1) through (3) of this section.