Friday, May 15, 2009

Airlines, Railroads Lose Challenge to Urine-Test Rule

Burlington Northern Santa Fe Corp. and transportation unions lost their challenge to a federal rule requiring airline and railroad companies to observe urine collections for employee drug tests.

A U.S. appeals court today said the Transportation Department acted within its authority to order that someone observe the urine collections as a way to cut down on drug-test cheating.

“Although we recognize the highly intrusive nature of direct observation testing, we conclude that the regulation complies with the Fourth Amendment” prohibition against unreasonable searches, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled.

The Department of Transportation sought to impose the rule last year on workers at railways, airlines, pipelines, motor carriers and mass-transit agencies, saying the tests can be circumvented through steps such as using fake drivers’ licenses. The legal challenge put on hold the part of the policy that applied to workers returning to duty or taking follow-up exams after previously testing positive.

“We felt the new requirement didn’t appropriately consider an employee’s privacy,” said Suann Lundsberg, a spokeswoman for Burlington Northern, the biggest U.S. railroad by revenue. “While we’re disappointed with the court’s ruling, we certainly agree that drug-testing programs are important to transportation safety.”

Considering Options

Lundsberg said the Fort Worth, Texas-based company is reviewing the court’s ruling and “will be considering our options and conferring with the union representative of our employees.”

The rule calls for a person of the same gender to observe the collection of urine. Most workers currently tested are men, while most of those who collect samples are women, rail and airline trade groups said. The gender divide was previously inconsequential because observation was required in only a few cases, they said.

The rule is necessary because there is “a wide array of available cheating devices and the substantial incentive for these return-to-duty employees to use such devices to cheat on required return-to-duty and follow-up drug tests,” Bill Mosley, a spokesman for the Transportation Department, said in an e-mail. “Safety is the highest priority of the U.S. Department of Transportation and the upholding of our direct-observation drug-testing rules helps to support this mission.”

Tested Positive

The conductor of a Union Pacific Corp. locomotive tested positive for a controlled substance after a crash with a Los Angeles commuter train that killed 25 people last year, two individuals familiar with a U.S. investigation said in February.

The case is BSNF Railway Co. v. U.S. Department of Transportation, 08-1264, U.S. Court of Appeals for the D.C. Circuit (Washington.)