Direct Observation: What Employers Aren't Considering

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(August 3, 2009) DOT announced last week that as of August 31st the new direct observation rules must be observed. Those rules require (previously permitted) regulated employers to directly observe every collection upon return to duty or follow-up to a violation. Under Section 40.67(b)(i) the direct observation includes a requirement that the donor "raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the collector] by turning around, that they do not have a prosthetic device."

Yes, this is a drastic change to the rules. Collection providers are scrambling to prepare - some are going to stop providing collection services all together. But, one key point is being missed: employees must be warned! In my opinion all employers would be well advised to not only place a new warninig about this change into their policies but to post notice of this change in conspicuous places throughout their workplaces. Recent court cases (e.g. McVey v. National Organization Services, Inc., Munn v. Kraft Foods, Inc.) have made it clear that complete knowledge of a company's program and warning of the consequesces of violating that program are essential. Failure to provide adequate warning could cost an employer in a wrongful discharge action, unemployment case or workers compensation challenge.

Additionally, it must be remembered that this change impacts not just DOT-regulated employers but, depending on employer choices and in certain industries, employers in 10 states (AL, CA, CT, DE, MD, MT, ND, OH, TN, VT) MUST follow DOT rules. Any employer that has chosen to follow DOT rules or negotiated doing so in their collective bargaining agreemant would also be impacted by this rule change.