We had a CDL driver come in for a pre-employment DOT drug test recently. We were quite busy and were not able to attend to this donor for a few minutes as we were helping other clients. The donor, a transgender man, seemed to have anxiety and he could sense we were not going to get him to the collection area right away, so he asked to use the bathroom indicating he could no longer “hold it” – you might say he was doing the pee-pee dance!

This type of behavior automatically makes us suspicious as we know donors who indicate they need to go right away do this for two reasons:

1. They really do need to go.
2. They brought in fake or clean urine and it has been heated to the correct temperature (98.6) and it is losing heat every minute they wait.

We find the 2^nd reason is much more prevalent in our clinic.

As suspected, the first specimen was unacceptable. The temperature was correct, but the urine was synthetic. We package the specimen up, as is regulation, and then proceeded to tell the donor we could not accept the specimen because we did not believe it came from their body. We explained that he would have to give us another specimen under direct observation procedures per regulation. The donor became quite upset as many do – after all, they were “busted”. They questioned the collector profusely about the specimen and why it was rejected. The donor insisted it was within the correct temperature range. By his reaction it was evident he had gotten away with this trick before and fooled previous collectors. I would even venture to say this is the first time he had ever been caught which is striking because CDL holders (which he was) are tested quite often. The drama carried on for approximately 30 minutes as the donor questioned every single employee asking why the collector would not take his specimen.

The First Choice employees followed their training, and all repeated the same phrase: “the collector did not believe it came out of your body” when questioned by the donor. We use this verbiage for two reasons:

1. We find if we repeat the same statement over and over and remain calm, the erratic donor will eventually give up on trying to draw us into their drama.
2. We do not want to further educate cheaters on the methods we use to determine if we will accept a specimen. According to regulation, it is our right as trained DOT collectors to reject a specimen for any reason.

The donor left the building without providing a second specimen which is considered a refusal and has the same consequences as a positive drug test. The drama did not stop there! Shortly, the employer called our clinic (after speaking to the donor) to get “the story”. We obliged and the employer scoffed and let us know they were “through” with this applicant. The donor then called our office twice to argue with us even more. The second call was fielded by the owner of First Choice gave the donor an opportunity to vent; and again told him we followed regulation and asked him to not call us again.

After incidents such as these, we always hold a “pow-wow” amongst the employees to discuss how the situation was handled and to get input from all as to how we might (or might not) have handled the situation differently. During that discussion the subject came up of what if the donor had done a second collection which had to be directly observed per DOT policy? He was a transgender man. Would a male or female do the direct observation?

We immediately went to the internet and DOT regulation for clarification. We speculated that the observer would have to be the same gender the donor was assigned at birth.

Finding no regulation, we emailed ODACP (Office of Drug & Alcohol Policy Compliance) which is the government arm of all things related to DOT drug/alcohol testing. Usually when we send these emails we get a reply in about 30 days. However, I was shocked when we received a phone call from ODACP in about 2 hours.

ODACP informed us there was no regulation regarding direct observation of transgender persons but they were in the middle of writing such regulation. They said that most likely the regulation will state that the observer would need to be the same gender that the trans person identified with, just the opposite of what we had thought. He went on to say that if the donor asked for an observer that was not the same biological sex as the donor that we should “prepare” the observer for what they were about to see. We were somewhat concerned and then asked, “but what if the observer has an objection to making such an observation?” The phone went silent and the ODACP representative had no answer for that question. Seems you can’t regulate every situation, huh!