On February 28th, the U.S. Department of Transportation (DOT) published a Notice of Proposed Rulemaking (“Proposal”) in the Federal Register with the aim to amend the transportation industry drug testing program procedures regulation and specifically, to include oral fluid testing. This would allow employers the choice to include oral fluid specimens in their drug testing programs. However, it is still unclear whether there is an oral fluid testing device currently available on the market that will comply with the expectations outlined by DOT.
In the notice, the DOT has suggested permitting oral fluid testing as an alternative drug testing method for DOT-regulated workplace testing. According to the DOT, each specimen type offers different benefits for detecting and deterring illegal drug use, especially when considering specific windows of detection.
The proposed rule states that the oral fluid testing window of detection for cannabis is up to 24 hours, whereas urine testing’s window of detection for cannabis is 3 to 67 days. In addition, the DOT invites comments on the accuracy of these windows of detection. If accurate, oral fluid testing would provide employers with a method for detecting recent cannabis use, which will be beneficial for reasonable suspicion testing and post-accident testing. Another advantage of oral testing is its relative ease of collection compared to urine testing, while also allowing for direct observation of collection.
“Unlike directly observed urine collections, an oral fluid collection is much less intrusive on the tested employee’s privacy,” the notice reads. “By providing the option of collecting an oral fluid specimen, DOT is broadening options for the testing of safety-sensitive employees in the transportation industries.”
This proposal follows the 2019 rule by the U.S. Department of Health and Human Services’ which permitted federal executive branch agencies to use oral fluid specimens as part of the drug testing process. This rule went into effect on January 1, 2020, while each agency is required to go through its own rule-making process.
“This will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program,” the notice states. “The proposal includes other provisions to update the department’s regulation and to harmonize, as needed, with the new mandatory guidelines for federal workplace drug testing programs using oral fluid established by the U.S. Department of Health and Human Services.”
Moreover, the Trucking Alliance, as well as other groups and organizations in the industry have been advocating for the implementation of mandatory hair testing. Although urinalysis satisfies the current drug and alcohol testing requirements set out by the FMCSA, many large fleets require employees to undergo hair and urine testing.
The Owner-Operator Independent Drivers Association (OOIDA) has remained opposed to hair testing, it is currently reviewing the oral drug testing proposal. “We will be reviewing the protocols to determine what impacts oral testing would have on highway safety, including the costs and any possible privacy issues for drivers. As DOT considers adding oral fluids to drug testing regulations, OOIDA remains opposed to any efforts that would mandate hair testing for truck drivers,” said Jay Grimes, OOIDA’s director of federal affairs.
The DOT proposal also suggests allowing direct observation of urine collections by any licensed or certified medical professional legally authorized to take part in a medical examination in the jurisdiction where the collection takes place. The notice also proposes to permit the Medical Review Officer (MRO) staff to contact pharmacies to verify a prescription provided by an employee with the purpose of increasing efficiency and assisting MRO office workflow. Subsequently, the DOT is seeking comments on whether this change is recommended, as well as on the resulting estimated cost savings.
The DOT is also requesting comments on whether some situations warrant “uncancelling” a test that was previously cancelled, for instance due to missing or delayed paperwork, which was later provided. Finally, DOT has also suggested to allow the use of options of official identification numbers issued by State or Federal authorities to be used instead of Social Security Numbers, and to allow Substance Abuse Professional (SAP) to conduct evaluations virtually.
The period of public commenting for this notice of proposed rule-making has been extended until April 29, 2022, which will be followed by a review process.