The U.S. Department of Transportation (DOT) published in the Federal Register on February 28, 2022 a notice of proposed rulemaking for oral fluid drug testing of transportation employees covered by federal regulations. DOT stated that the addition of oral fluid drug testing will give employers a choice to help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the drug testing program. The proposed rules also are intended to harmonize with the Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid established by the U.S. Department of Health and Human Services in 2020. Comments on the notice of proposed rulemaking should be submitted by March 30, 2022.
DOT is not proposing to eliminate urine testing; rather, oral fluid testing will be an alternative. Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use. Most significantly, DOT’s proposed rule states that the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection for marijuana is 3 to 67 days. DOT invites comments on the accuracy of these windows of detection. If accurate, oral fluid testing will provide employers with a method for detecting recent use of marijuana, which will be beneficial for reasonable suspicion testing and post-accident testing.
DOT also proposes training criteria for oral fluid collectors, provides requirements for oral fluid collection sites, sets forth steps that operators of collection sites and collectors must take to protect the security and integrity of oral fluid collections, and outlines the steps for oral fluid collections. Initial and confirmatory cut-off concentrations for drugs are proposed, and the rules require enough oral fluid to be collected in two separate tubes. Because oral fluid testing is new, DOT seeks comments on many issues including who should be permitted to collect oral fluid specimens, whether Medical Review Officers should receive additional training for reviewing oral fluid tests, how to handle situations where insufficient oral fluid is provided by the tested individual, among others.
The addition of another specimen for drug testing also will be useful in the event that a second collection is required (e.g., insufficient quantity of urine, temperature is out of range, or insufficient saliva). While a urine specimen and oral fluid specimen may not be collected at the same time, a different specimen may be collected when there is a problem with an initial specimen collection. DOT seeks comment as to who should decide whether a different specimen should be collected, and how employers and collection sites should communicate about it.
DOT further proposes allowing Substance Abuse Professionals to conduct evaluations virtually, and to allow direct observation of urine collections by licensed or certified medical professionals when a collector of the same gender is not available.
About this Author
Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.
Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S….
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