The U.S. Department of Transportation (USDOT) just took steps to include oral fluid testing as an alternative to urine tests for truckers. The department published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to amend drug testing procedure regulations for the transportation industry. Comments on the proposal are due by April 29, 2022.
The plan would amend the drug testing procedures required by the Federal Motor Carrier Safety Administration (FMCSA) for truck drivers and other DOT agencies for employees in safety-sensitive positions. Once finalized, companies employing these safety-sensitive personnel would have two options for federally required drug testing: oral fluid samples or the existing urine samples.
The oral fluid drug testing proposal is based on drug testing guidelines adopted by the Substance Abuse and Mental Health Services Administration (SAMHSA), an arm of the U.S. Health and Human Services Department. Those guidelines became effective Jan. 1, 2020. SAMHSA establishes scientific and technical guidelines for federal workplace drug testing programs and standards for certification of laboratories engaged in that drug testing.
Under federal law, the USDOT must follow the SAMHSA drug testing standards. While the NPRM does not open the SAMHSA scientific and technical standards to question – they are already law – the NPRM does explain how SAMHSA addressed many concerns. Those issues include passive exposure (e.g., second-hand smoke, especially from marijuana), which can potentially taint oral fluid samples.
The NPRM also provides a background on the development of oral fluid drug testing. SAMSHA developed these standards to combat cheating on urine tests. Because of employee privacy concerns, most urine samples are not obtained under direct observation. As SAMHSA has stated, unobserved urine samples creates an opportunity for “industries devoted to subverting drug testing through adulteration, substitution and dilution.” Oral fluids, by contrast, can be obtained under observation.
The NPRM seeks public comment on practical measures:
First is cost. Oral fluid testing generally costs less than urine testing. The USDOT says the typical urine testing process costs $50, while the oral fluids testing process costs $35. The NPRM seeks public comment to confirm those estimates. Additionally, the use of oral fluid testing addresses concerns of employees who suffer from “shy bladder” or other medical conditions that prevent a sufficient urine sample. The USDOT would like to have comments on costs savings if those situations were instead handled through oral fluid testing.
Second, the NPRM seeks comments on flexibility. Oral fluid testing can be conducted readily in post-accident (roadside) and reasonable suspicion circumstances, without the delay and cost of transporting an employee to a urine collection facility. As part of public comments on flexibility, the NPRM proposes that company employees and outside contractors can be trained to collect oral fluids.
Finally, the NPRM includes a chart depicting the “windows of detection.” Oral fluid and urine tests reveal the presence of certain drugs for different periods of time. Generally, urine tests can reach further into the past than oral fluids. The NPRM requests comments on the chart depicting these different windows of detection, and specifically on whether the use of oral fluids or urine should be mandated or prohibited for different types of drug tests.
The NPRM proposes conforming changes in drug testing definitions and procedures, any of which are available to public comment. The NPRM specifically does not comment on the prospects for hair testing for drugs. The USDOT will set an effective date for oral fluid testing in a final rule if adopted.
