Transgender Drug Testing

Recently, a client asked me if they needed to adjust their drug testing policy so a transgender employee could choose the gender of the person observing them urinate for a test. Obviously, the person wanted the employee to feel comfortable with who was in the room with them.

First of all, having another employee watch you urinate can be uncomfortable for anyone, for any reason, but it is a requirement for some drug tests in order to ensure that the testee doesn’t bring

in a bag of someone else’s urine to exchange as their own. If the reason is not obvious, it is so they do not test positive when they know they have been under the influence of drugs or alcohol.

So, I did some research and thought it would be good to share this information for other employers, managers, small business owners and HR managers who may have similar questions.

What are the requirements to be an observer for a direct observed collection?

According to the Mandatory Guidelines for Federal Workplace Drug Testing Programs, the Health and Human Services Department evaluated comments and agrees that all observed collections must be conducted in a professional manner that minimizes discomfort to the donor. The Department has revised Sections 4.4(b), 8.1(b), and 8.10 to allow the donor to be observed by a person whose gender matches the donor's gender, which is determined by the donor's gender identity (defined in Section 1.5). The donor's gender identity may be the same as or different from the donor's sex assigned at birth. The Department also revised Sections 8.1(b) and 8.12 for monitored collections, to allow the donor to be monitored by a person whose gender matches the donor's gender, unless the monitor is a medical professional (as described in Section 8.12). The Department disagrees with the suggestion to allow an individual to serve as an observer based solely on their credentials as a physician or health care professional. Such credentials alone would not guarantee that these individuals could appropriately perform the functions of an observer (Section 4.4).

Here are some sample language examples:

The procedure for direct observed collection is the same as that for a routine collection except an observer (i.e., of the same gender as the donor) watches the donor urinate into the collection container. Source: SAMHSA.gov
The donor is to be observed by a person whose gender matches the donor’s gender, which is determined by the donor’s gender identity. The donor’s gender identity may be the same as or different from the donor’s sex assigned at birth. For monitored collections, to allow the donor to be monitored by a person whose gender matches the donor’s gender, unless the monitor is a medical professional.

Obviously, this is a sensitive topic but like all HR topics, it is important to get it right the first time around to avoid discomfort and risk for the organization.

Additional resources include:

nationaldrugscreening.com

samhsa.gov

federalregister.gov

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