Mr. Jack T. Frohlich, Esquire
Transport Workers Union
80 West End Avenue
New York, NY 10023

RE: Drug specimen collection procedures; shy bladder; medical evaluation

Dear Mr. Frohlich:

Thank you for your letter asking about drug testing procedures under the Federal Transit Administration's (FTA) drug rule, 49 CFR Part 653, which requires urine testing of covered employees. The rule provides those covered employees who at first cannot provide a sufficient specimen, two hours to try again; during this time the employee must be directed to drink up to 24 ounces of fluid. An employee who has failed to provide a sample within two hours must be referred to a medical doctor for an evaluation. You ask whether the employee must attempt to provide a sample for the time period to begin and whether the employee must be referred to a urologist or a doctor with an expertise in this area.

FTA's drug rule, 49 CFR Part 653, incorporates by reference 49 CFR Part 40, the Department of Transportation's (DOT) Department-wide drug and alcohol testing procedural rule, which is used throughout the transportation industry. DOT recently amended Part 40 and changed some critical elements of the "shy bladder" situation you describe in your letter. Most importantly, DOT changed the time period from two hours to three hours and increased the amount of fluid to be consumed from 24 ounces to 40 ounces. Part 40 now reads as follows: "if the individual has not provided the required quantity of urine, the specimen shall be discarded. The collection site person shall direct the individual to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided a new urine specimen, whichever occurs first. . . . 61 Fed. Reg. 37699 (1996) (to be codified at 49 CFR 40.25(f)(10(iv)(A)(2))."

In the "DOT Urine Specimen Collection Procedures Guidelines," the Department states that the employee must attempt and fail to produce a sufficient specimen for the now three hour time period to begin. DOT Urine Specimen Collection Procedures Guidelines, 49 CFR Part 40, For Transportation Workplace Drug Testing Programs, December 1994, at 23. The preamble to the July 19, 1996, amendment reaffirms that position. It states that "[t]he Department . . . declines to change the requirement that employees attempt to provide a specimen at the beginning of the collection process. Forty-five ml. is not a tremendous amount of urine. Many employees who do not feel ready to do so may well be able to provide such an amount. In any case, the failure of the first attempt to provide a sufficient specimen is a clear, easily understandable point to start the clock for the three hour time period for the shy bladder procedure. 61 Fed. Reg. 37969 (1996)."

Part 40 does not require that the employee be sent to a urologist or a medical doctor with an expertise in this area, but only that the employee be sent to a licensed physician acceptable to the employer. See, 49 CFR 40.25(f)(10)(iv)(B). This was not changed in the July 19, 1996 amendment. The preamble to that amendment states that "the Department believes it is necessary to retain the requirement that the examining physician be acceptable to the employer." 61 Fed. Reg. 37696 (1996).

If you have any further questions, please contact Ms. Nancy Zaczek of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Gregory B. McBride
Acting Chief Counsel