Direct Observation Requirements Update FAQ

• When do the new direct observation requirements become effective?
• What is the change from August 2008 to August 2009?
• Which types of tests will require direct observations?
• What exactly does the new regulation require that the direct observer do?
• Will all direct observations be done in the same way - using the new part 40 regulations?
• Who will perform the direct observation?
• What if the employee refuses to provide a sample under direct observation as required by the federal regulations?
• After the employee is visually inspected and no prosthetic device is found, then what happens?

When do the new direct observation requirements become effective?

 The full direct observation requirements will become effective August 31, 2009.

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What is the change from August 2008 to August 2009?

Implementation of the direct observation requirement was delayed by a court order due to a lawsuit, but only part of the new regulation was delayed. The court permitted the direct observation process to go into effect and it began in August 2008, but the court stayed the requirement to have all federal follow-ups and return to duty tests to completed under direct observation. The court lifted this stay on July 1, 2009. FRA set an implementation date of August 31, 2009, for all federal follow-up and return-to-duty tests to be directly observed.

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Which types of tests will require direct observations?

• All FRA and FMCSA Follow-ups and Return-to-Duty tests.
• All UP Return-to-Duty tests as ordered by EAP, employees coming back from a leave of absence would not be included.
• One or more UP Follow-ups per year as ordered by Union Pacific's Designated Employee Representative (DER).
• Any collection as deemed by the collector or manager as suspicious in nature could result in a direct observation.

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What exactly does the new regulation require that the direct observer do?

Part 40.67(i) states:

The observer "… must request 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. After you have determined that the employee does not have such a device," the employee may return clothing to its proper position for observed urination.

Instructions will be provided by the collector.

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Will all direct observations be done in the same way - using the new part 40 regulations?

Yes.

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Who will perform the direct observation?

In all cases, the person who performs the direct observation must be the same gender as the employee, also known as the donor, who is providing the specimen.

UP will work with our contract collection company to strive for direct observations to be performed by the collector or collector-appointed "Direct Observer."

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What if the employee refuses to provide a sample under direct observation as required by the federal regulations?

If the employee has been notified that the test will take place, then the test must becompleted. If a direct observation is refused, then it will be considered a refusal to test.

The following note is included as part of the "Urine Specimen Collection Guidelines," issued by the United States Department of Transportation, through its Office of Drug and Alcohol Policy and Compliance:

Note: With respect to direct observation collections, the following situations are considered refusals to test:

• The employee declines to allow a directly observed collection required or permitted by Part 40 to occur.
• The employee fails to follow the observer’s instructions to raise and lower their clothing and to turn around to permit the observer to determine if the employee has a prosthetic or other device that could be used to interfere with the collection process.
• The employee possesses or wears a prosthetic or other device that could be used to interfere with the collection process.

In any of these situations, the collector discards any specimen the employee provided previously and notifies the DER as soon as possible.

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After the employee is visually inspected and no prosthetic device is found, then what happens?

As was the case under the prior regulations, the direct observer must see the urine leave the body and flow into the collection container. Then the employee and direct observer leave the enclosed toilet stall/restroom. The employee hands the collection container directly to the collector, if that person is different from the direct observer, and the test is complete.