The U.S. Department of Transportation (USDOT) has issued a Final Rule on oral fluids testing. The new drug testing method will apply to safety-sensitive employees subject to federal drug and alcohol testing rules. The notice makes corresponding changes in the modal regulations of the Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration, Federal Aviation Administration, and the Federal Transit Administration.
The Final Rule becomes effective on June 1, 2023. However, the USDOT notes that the U.S. Department of Health and Human Services (HHS) must first certify at least two laboratories – one for the initial oral fluids analysis and a second lab in case an employee requests a confirmatory analysis – before employers can implement oral fluids testing. As of the Final Rule publication date on May 2, 2023, HHS had not certified any laboratories for oral fluids analysis. When they do, see this website for HHS-certified laboratories: https://www.samhsa.gov/workplace/drug-testing-resources/certified-lab-list.
The Final Rule says that employers may now choose to use either oral fluids or urine samples for any federally-required drug tests. Each methodology is accurate and now both are legally accepted. The choice of which methodology to use is up to the employer, not the employee.
Oral fluids testing is a practical solution for roadside, post-crash and reasonable suspicion tests of truck drivers where timely access to a facility for collection of a urine sample may not be possible. USDOT does suggest that employers thoroughly review their collection sites to assure the presence of testing kits and trained collectors. Whether an employer chooses to utilize just one or both methodologies at a collection site is a business decision, the USDOT says.
The rule notes that oral fluids collection is non-invasive. Because the collection is accomplished in the presence of the collector, oral fluids testing can be utilized when direct observation is required. Observation eliminates concerns about the substitution or adulteration of urine samples, and is a solution for employees suffering from paruresis (shy bladder). The Final Rule does say, however, that oral fluids testing may not cost less than urinalysis, as originally thought, because the oral fluids test kits carry an expiration date.
The USDOT Final Rule also extends permanently the ability of Substance Abuse Professionals (SAPs) to conduct evaluations remotely via virtual technologies which provide real-time audio and visual interaction between the SAP and the employee. This was first allowed during the COVID-19 pandemic when in-person SAP evaluations were not recommended. The Final Rule does not specify the technical specifications for the virtual technologies used, other than to say they must provide “security to protect the confidentiality of the communication.”
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