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On May 15, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition filed by BNSF Railway Co. and nine rail labor unions that sought judicial review of the U.S. Department of Transportation’s (USDOT) new “direct observation” drug-testing rule.

However, the court didn’t yet set an effective date for the new rule, which requires employees in the rail, trucking, aviation and other transportation industries who fail or refuse to take drug tests to complete a treatment program before returning to work. The employees then must pass repeated drug tests observed by a same-sex party assigned to watch them provide a urine sample. Last year, the USDOT passed the direct observation rule over concerns about transportation employees finding ways to cheat and provide urine samples that weren’t their own.

BNSF and the American Train Dispatchers Association, Brotherhood of Locomotive Engineers and Trainmen (BLET), Brotherhood of Maintenance of Way Employes, Brotherhood of Railroad Signalmen, International Brotherhood of Electrical Workers, National Conference of Firemen & Oilers, Transportation Communication International Union, United Transportation Union and International Brotherhood of Teamsters filed the legal challenge because they believed the new rule didn’t appropriately consider an employee's privacy. They asserted that the regulations violated the Administrative Procedure Act and U.S. Constitution’s Fourth Amendment.

The court ruled that, although direct observation is extremely invasive, the intrusion can be mitigated if employees avoid it altogether simply by complying with the drug rule.

The decision "marks a dark day” for all transportation workers, as well as all Americans, said BLET National President Ed Rodzwicz in a prepared statement.

“As [our] counsel pointed out during oral argument, never before has a U.S. court upheld suspicionless direct observation testing of non-incarcerated civilians,” he said.

BNSF and union officials are reviewing the court's ruling and weighing their options.