Mr. Gerald A. LeClaire
Chief Labor Relations Officer
Southeastern Pennsylvania Transportation Authority
714 Market Street
Philadelphia, PA 19106-2385

RE: Urine collection procedures under 49 CFR Part 40

Dear Mr. LeClaire:

Thank you for your letter requesting interpretation of the "shy bladder" provision. For employees with shy bladders, the rule currently directs the collection site person to "instruct the individual to drink not more than 24 ounces of fluid and, after a period of up to two hours, again attempt to provide a complete sample." 49 CFR §40.25(f)(10)(iv). You ask when the two-hour clock begins to run.

More specifically, you ask if the two-hour clock begins to run when the employee is first asked for a specimen by the collector. The answer is no. Under DOT regulations, an unsuccessful attempt to provide a specimen is required before the two-hour clock begins to run. Departmental guidance states that the donor demonstrates his/her inability to provide a specimen at the time the donor returns from the restroom to the collector and provides either no specimen or a specimen of insufficient quantity. DOT Urine Specimen Collection Procedures Guidelines, 49 CFR Part 40, For Transportation Workplace Drug Testing Programs, December 1994, at 23. (Enclosed for your reference).

You also ask whether an individual has an unlimited amount of time to prepare for a first attempt to provide a specimen before the two hours begin. The answer is no. DOT guidance indicates that the collector should tell the donor that if a specimen cannot be produced within five to ten minutes, that the donor should come out of the restroom and inform the collector of the inability to provide a specimen. If a donor remains in the restroom an excessive length of time (15 minutes or more), the collector should knock on the door and request the donor to come out. The collector should try to solicit some type of response from the donor that would indicate that the donor heard the collector's request. DOT Urine Specimen Collection Procedures Guidelines, 49 CFR Part 40, For Transportation Workplace Drug Testing Programs, December 1994, at 35.

Finally, you ask whether an individual must produce an amount of urine, no matter how small, in order for the two hours to begin. The answer is no. As discussed above, an unsuccessful attempt to provide a specimen is first required. The clock begins to run when the donor returns from the restroom with either no specimen or a specimen of insufficient quantity.

The U.S. Department of Transportation is considering amendment of this guidance. In a July 25, 1995, Notice of Proposed Rulemaking (60 Fed. Reg. 38200), the Department proposed extending the two-hour period to a four-hour period. In addition, where an employee states to a collector that he or she cannot produce a specimen, the Department is considering whether to permit collectors to skip the initial collection attempt and proceed directly to shy bladder procedures. 60 Fed. Reg. 38201. If you have any questions about this matter, please contact Kristin O'Grady or Nancy Zaczek at (202) 366-4011.

Very truly yours,
(Signed)
Berle M. Schiller
Chief Counsel