On May 2, the Department of Transportation (DOT) adopted a rule recognizing oral fluid drug testing as an alternative to urine testing for safety-sensitive positions in all regulated industries, including aviation, motor carrier, rail, and transit. The final rule (88 Fed. Reg. 27596) becomes effective June 1.
The final rule harmonizes DOT and Federal Motor Carrier Safety Administration (FMCSA) regulations with the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid.
However, there currently are no laboratories certified by HHS to conduct drug and specimen-validity tests on oral fluid specimens. (See HHS’s current list of certified laboratories.) For motor carriers to implement oral fluid testing under DOT and FMCSA regulations, HHS will need to certify at least two laboratories for oral fluid testing.
The DOT requires that there be at least two HHS-certified laboratories for oral fluid testing because one HHS-certified laboratory would conduct the screening and confirmation drug testing on a primary specimen and a different HHS-certified laboratory would conduct the split specimen drug testing of a second specimen.
The DOT first established transportation drug and alcohol testing requirements for safety-sensitive positions on November 21, 1988, in an interim final rule (53 Fed. Reg. 47002). The interim final rule established urine testing procedures for specific prohibited drugs.
The department recognizes oral fluid testing as an alternative that may circumvent urine test “cheating” and offer an option when urine samples are insufficient for testing (due to “shy bladder”). Because of concerns for constitutional privacy rights, the DOT and FMCSA allow directly observed urine collection only for “cause,” such as irregularities found by laboratory testing of specimens, previous operator violations, or suspicious activity at a collection site.
The DOT considers oral fluid collection less intrusive than urine testing and points out that all oral fluid collections are directly observed because they are always collected in front of a collector.
On February 28, 2022, the DOT proposed adding oral fluid testing procedures for safety-sensitive transportation employees subject to drug testing (87 Fed. Reg. 11156). The department received 417 comments on its proposal. During the rulemaking process, the DOT decided to offer employers the option to choose oral fluid or urine testing rather than mandating one or the other.
Some commenters suggested that oral fluid testing be mandated in some or all circumstances; others thought oral fluid testing should be the employer’s choice, while others still thought it should be the employee’s or collector’s choice.
Additionally, some suggested allowing oral fluid testing only for reasonable suspicion and post-accident testing. Other commenters wanted to see oral fluid testing prohibited for preemployment and random testing, preferring the potentially longer detection windows of urine versus oral fluid testing.
Conversely, some commenters wanted urine testing banned, according to the DOT. The department considers both drug testing methodologies scientifically accurate and forensically defensible and decided there was no reason to eliminate either methodology.
Collection sites must make their own business decisions about whether they will offer
urine collection, oral fluid collection, or both. Not every collector will need to be trained on both urine and oral fluid collection unless the collection site decides to offer both.