How Executive Orders Could Reshape Direct Observation Drug Testing for Transgender Employees

Drug testing plays a pivotal role in workplace safety and compliance particularly in safety-sensitive roles where direct observation protocols are sometimes required. Current DOT guidelines allow employees to self-identify their gender to determine who observes the collection, providing flexibility for transgender and nonbinary individuals. However, the recent executive order 14168 aiming to define gender strictly as male or female based on biological sex could upend this approach. If enforced, the DOT may be required to revise its current practices—leaving employers uncertain about how to navigate compliance requirements while continuing to uphold respectful, inclusive workplace policies.

Direct observation is when a collector watches the employee provide a urine sample. This method is not considered standard, but is usually reserved scenarios like:

• Return-to-duty or follow-up testing, where there is a need to confirm an employee has remained drug-free.
• Suspected tampering or substitution of the sample.
• When the sample's temperature is outside the acceptable range, suggesting adulteration.

When and how is a directly observed urine collection conducted? Under current DOT regulations, oral fluid must be available for DOT directly observed collections in certain situations (49 C.F.R. § 40.67(g))

(g) As the collector, you must ensure that the observer is the same gender as the employee.

1. You must never permit an opposite gender person to act as the observer.
2. The observer can be a different person from the collector and need not be a qualified collector.
3. If a same gender collector cannot be found or in circumstances of nonbinary or transgender employees:
   1. If the employer has a standing order to allow oral fluid testing in such situations, the collector will follow that order;
   2. If there is no standing order from the employer, the collector must contact the DER and either conduct an oral fluid test if the collection site is able to do so, or send the employee to a collection site acceptable to the employer for the oral fluid test.

It is important to note, however, that full implementation of DOT oral fluid testing is contingent upon the certification of at least two laboratories, which has not yet occurred. As a result, any DOT oral fluid testing provision is not currently actionable in practice.

In January 2025, executive order 14168  “Defending Women From Gender Ideology Extremism and Restoring Biological Truth To the Federal Government” was introduced, redefining sex as male or female based strictly on biological characteristics at birth. This introduces potential conflicts with existing DOT guidelines that provide accommodations for transgender and nonbinary individuals during the drug testing process.

Navigating this legal landscape will require vigilance. Employers must continue to align with current DOT regulations while keeping an eye on evolving federal policies. Until further regulatory changes are officially proposed and adopted, the oral fluid testing accommodation remains the appropriate course of action for situations involving transgender and nonbinary employees.

The traditional requirement of a same-gender observer becomes complex when navigating gender identity versus biological sex. For transgender and nonbinary individuals, this can result in misgendering, discomfort, or discrimination.

Current DOT rules stipulate that if a same-gender observer is not available—or if the employee identifies as transgender or nonbinary—an oral fluid drug test must be used instead. This accommodation reduces potential privacy and dignity violations while preserving the testing process's integrity.

To remain compliant with DOT rules and create a respectful workplace environment, employers should:

• Establish standing orders outlining when oral fluid testing should be used—particularly for transgender and nonbinary employees.
• Ensure that collection site personnel are adequately trained in oral fluid collection procedures and gender identity sensitivity.
• Employers should review company policies and documentation to ensure they align with current practices and procedures but should refrain from making changes solely based on these considerations unless explicitly directed by regulatory guidance.

While the option of oral fluid testing offers a promising path to address these sensitive situations, it is important to recognize that this alternative is not yet operational. The DOT requires certification of at least two laboratories before oral fluid testing can be fully implemented, and that milestone has not yet been reached. Until then, employers should continue following existing urine testing procedures for directly observed collections.

Navigating the evolving landscape of drug testing regulations can be challenging. DISA Global Solutions offers comprehensive services to assist employers in maintaining compliance with DOT regulations, including the implementation of oral fluid testing procedures. Our expertise ensures that your organization's drug testing policies are up-to-date, respectful of all employees, and aligned with federal mandates.

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Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout North America and Europe, DISA’s comprehensive scope of services includes background screening, drug and alcohol testing, DOT & HR compliance, occupational health services, and I-9/E-Verify. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.