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The U.S. Department of Transportation's new drug testing rule that's been on hold for months while one Class I and eight rail labor unions challenge the rule's implementation in court is heading for an appellate court review. A hearing will be held on March 26.

The rule would require rail and transit workers to be observed when providing a urine sample for mandatory drug tests, including all return-to-duty cases following a positive drug test, and follow-up tests after a positive drug test.

BNSF Railway Co. and the Brotherhood of Locomotive Engineers and Trainmen (BLET), Brotherhood of Maintenance of Way Employes Division, American Train Dispatchers Association, Brotherhood of Railroad Signalmen, Transportation Communications International Union, International Brotherhood of Electrical Workers, National Conference of Firemen and Oilers, and United Transportation Union oppose the rule, which they refer to as an "invasive and degrading strip-search drug testing regulation."

They believe rail and transit workers shouldn't be observed while providing a urine sample without reasonable suspicion, and that the rule violates the Fourth Amendment, which protects against unreasonable searches.

"The DOT admits that its only evidence in support of strip searches and mandatory direct observation is anecdotal, proving once again that the new rule is a solution in search of a problem," said BLET National President Ed Rodzwicz in a prepared statement.

In August 2008, the Class I and unions obtained a motion in a U.S. circuit court to delay the rule's implementation from a planned Aug. 25 effective date to Nov. 1. The U.S. Court of Appeals for the District of Columbia later issued a second delay, and the rule has remained on hold pending court action.