USDOT Adopts Oral Fluid Testing Rule

For the last several years, the U.S. Department of Transportation (DOT) has proposed to establish oral fluid drug testing in the commercial operator space. Versions of this ‘spit test’ or 'saliva test' rule for drivers, pilots, and other transportation employees have been floating around since at least 2015. The most recent draft was published in the Federal Register on February 28, 2022.

As in years past, DOT stated that the addition of oral fluid drug testing would 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 U.S. Department of Health and Human Services (HHS) was first to adopt a version of the oral fluid test structure in 2020, and much of the proposed rule from DOT mirrors those guidelines.

Along with the testing protocols, DOT also submitted a number of adjustments to the drug testing program generally. While most of those adjustments were rejected, the oral fluid testing rule was officially adopted. As of June 1, 2023, the oral fluid test rule is part of the active federal regulations for transportation workers nationwide.

Before the new rule takes effect, however, DOT must designate and certify (using HHS guidelines) at least two separate laboratories for oral fluid testing submissions. The two lab requirement is primarily in place to allow for split specimen testing (‘bottle B’ requests) to be conducted when necessary.

Oral fluid tests will not take the place of urine testing, but rather supplement the drug testing program as a cost-effective alternative. Oral fluid testing is naturally less obtrusive when compared to urine sample collection, and reduces risk of fraud or adulteration of a sample by allowing for direct observation of the process. Due to the reduced time in collection, lack of need for a testing facility, and the reduced cost of the test, it is an attractive alternative for post-accident testing and companies looking to shave some costs from their overall budget.

The testing window for certain substances is much shorter, however, when compared to urine or hair samples. Many comments from health professionals pointed this out during the rulemaking process. If those concerns are valid, then using oral fluid testing on post-accident and immediate reasonable suspicion cases only might be a good approach when integrating it into a company’s testing program.

Like most business decisions, these benefits and limitations will have to be weighed by each company and manager looking to meet their specific needs and concerns. Anyone with questions or concerns about these new rules should always feel free to reach out to legal counsel and your safety managers for guidance and feedback.

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Hashtags: #truckingnews #dotcompliance #drugtesting #cdlp

Sources: 87 FR 11156, 88 FR 27596?

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Copyright: ?2023 Zac Hargis, Attorney for Riggs Abney Law Firm. All rights reserved.