Exposure in a Directly Observed Drug Specimen Collection for DOT Testing

The headline of the article read, “JetBlue Made Worker Expose Breasts For Drug Test, Says Suit.”  

Before discussing this case, three preliminary disclaimers are in order.  First, the  underlying article and this post are based solely upon the plaintiff’s allegations in a recently-filed lawsuit.  The article is not a recitation of facts as found by a court after a trial on the evidence, or even undisputed facts as determined by a court in response to a dispositive motion before trial.  The lawsuit includes claims for invasion of privacy, negligence, and intentional infliction of emotional distress – all based on conduct during a urine specimen collection process, which process is claimed to violate DOT regulations.

Second, the great bulk of my experience with DOT mandatory drug / alcohol testing involves working with employers of workers subject to Federal Motor Carrier Safety Administration regulations, and not those subject to testing regulations applicable to employers of airline workers regulated by the Federal Aviation Administration.  The latter is at issue in this JetBlue case.  While there are some significant differences between the agencies’ individual regulations, for purposes of this post, those differences are not material. Rather the testing regulations of both the FMCSA and FAA are subject to the general DOT standards found at 49 CFR Part 40. It is those generally applicable to all regulations which are fundamental to the claims made here.

And finally, I am not aware of any relationship between the named plaintiff and me.

Plaintiff Janee Samson was employed by JetBlue as a ramp agent at the Fort Lauderdale International Airport.  On April 19, 2018, she was involved in an accident while performing her job duties.  The court complaint alleges that Samson was required to submit to DOT post-accident substance testing.  (The complaint says “drug testing,” but my read of the FAA regulations found at 14 CFR §120.217(b) and 49 CFR §120.109(c), suggest that both drug and alcohol testing is required for a covered post-accident test.)  I found nothing in Ms. Samson’s complaint to suggest that there is any contention that the basic requirement that she  submit to a post-accident drug test was in any way improper. Indeed, she repeatedly alleged “her willingness to provide a prompt urine sample.”  The focus of her lawsuit appears to be the manner in which her urine sample was collected – specifically that she was repeated required to  expose her breasts during a direct observation collection.

JetBlue had a contract with Examination Management Services, Inc. for EMSI to, “collect[] urine specimens from JetBlue employees for testing.”  The DOT regulations of 49 CFR Part 40 -- regulations which apply to all parties who conduct drug and alcohol tests required by any DOT agency regulations -- define a service agent as, “Any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, [Breath Alcohol Technicians] and [Screening Test Technicians], laboratories, [Medical Review Officers], substance abuse professionals, and [Consortium/Third-Party Administrators].”

49 CFR § 40.11(b), provides that an employer is itself responsible for all actions of its officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT drug testing regulations.  49 CFR § 40.11(c) recites that any written or unwritten agreements or arrangements between an employer and any service agent concerning implementation of DOT drug and alcohol testing requirements, “are deemed, as a matter of law, to require compliance with all applicable provisions of this part [40 of Title 49 of the CFR] and DOT agency drug and alcohol testing regulations. Compliance with these provisions is a material term of all such agreements and arrangements.”

The DOT’s regulations for directly observed urine collection are found at 49 CFR § 40.67(i).  As a part a direct observation, the observer must ask the employee to “raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device.”  (Of course, the employee may refuse to comply with the observer’s request. That would constitute a “refusal to test.”  49 CFR § 40.191(a)(9).

In a publication entitled, “What Employees Need To Know About DOT Drug & Alcohol Testing,” the DOT explains that what the observer is to be checking for is a “prosthetic or other device [] could be used to interfere with the collection process.”

49 CFR Part 40 has an entire subpart – Subpart C – regarding urine collection personnel.  The DOT regulations require collectors to, among other things, complete qualification training.  The regulations also require a collector to be, “knowledgeable about . . . the current ‘DOT Urine Specimen Collection Procedures Guidelines’”.  Appendix D of these Guidelines (last revised January 2018) -- specifically refers to, “the procedures for checking the employee for prosthetic or other devices designed to carry ‘clean’ urine and urine substitutes.”  On page 22 of the Guidelines, there are three examples of such devices, each of which has some kind of holding vessel for the fake specimen (e.g., “connected to a bottle” or “battery-heated plastic bag).”  These Guidelines go beyond the regulations for direct collection to call for raising the clothing above the waist and navel, but provide no limit for how far above the waist or navel the collector may look in a directly observed collection.  Is it within the realm of possibility that a female may be carrying a prosthetic device with clean urine or urine substitutes around her breasts or bra? 

Which brings me to the impetus for this blog post. Regardless of the DOT agency involved, if you have employees subject to DOT drug testing, the odds are very good that at some point you will have a situation which calls for a directly observed collection.  If you use a third-party collection service agent for drug testing (as most employers do), call that company today and ask what its collectors do to determine whether an individual has a device that could carry something that might interfere with the collection process.  Be sure the processes comply with the DOT regulations, but do not exceed them, and determine how far their collectors go to look under outer clothing for devices carrying urine or urine substitutes. 

In considering your reaction to what you learn from your collection service as to how far they believe the collector / observer must go in looking for “devices” to thwart the collection process, recall that 49 CFR § 40.67(j) states:

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.

That requirement may reduce the need for an extensive “device” search:  What might not be caught in a search for a device might be caught in the process of trying to use such a device during or after urination. 

While it is the collector from that third-party service who will conduct such an inspection (or a different observer if the collector is not of the same gender as the employee), take a lesson from the JetBlue litigation.  If a hiccup or perceived hiccup in the drug specimen collection process results in litigation, the employer will be sued and see its name in the headlines.