By Janet Gilbert:

ORAL FLUID TESTING:  A HEADS UP TO REVIEW YOUR POLICIES!!!

The U.S. DOT published a final rule, effective June 1, 2023, amending its regulated industry drug testing program to allow for oral fluid testing in addition to the current urine testing methods.  The rule requires employers to use oral fluid testing for transgender or nonbinary individuals and when a direct observation is required but a same-gender technician cannot be found.  Otherwise the rule allows the use of oral fluid testing where urine testing may be impractical or not effective.  [Please note: the new rule does NOT apply to FRA’s post-accident testing program which is not administered under DOT Part 40 rules.]

Timing:  Even though the rule is now in effect, employers must wait to implement oral fluid testing until the Health and Human Services (“HHS”) certifies two laboratories as capable of processing the tests. Currently the DOT has not received any applications and estimates it will take 4-6 months to review the applications when received.

This F&S ALERT is to give you a heads up to look at your drug testing policies and be prepared once the testing labs have been approved.  The new changes may also impact collective bargaining agreements, particularly related to directly observed collections.

Short Synopsis of the Rule

• Oral fluid testing uses an individual’s saliva to test for controlled substances. The key advantages of oral fluid testing: the testing process is directly observed by a laboratory technician and oral fluid tests are able to detect recent drug use better than other forms of tests. The disadvantages: drugs do not remain in oral fluids as long as in urine or hair follicles and oral fluid testing is a newer test that  has been found effective but has not been subjected to the same legal scrutiny as urine or hair follicle testing.  Also, it is likely to be more expensive since it requires a trained lab tech to take the sample.
• Employers will have the option to choose either a urine test or an oral fluid test for all DOT-regulated drug tests, including preemployment, random, reasonable suspicion, post-accident, follow-up, or return-to-duty tests. The rule does not apply to FRA post-accident testing.
• The new rule requires all direct observation collections involving “opposite gender observers” and “transgender or nonbinary employees” be by an oral fluid test. Oral fluid tests are also required in situations where a direct observation test is required but a same-gender lab technician cannot be found.
• Employers who choose to use oral fluid testing will want to work with their collection sites to create a standing order (a/k/a employer protocols) detailing what kind of test – urine or oral —  should be performed and when.  If no standing order is in place, the employer will need to talk to the designated collector before each individual test.
• The collector must provide a phone number that connects directly to the collector or his or her supervisor – a general call center number will not suffice.
• It is the employer’s duty – not the collector’s – to determine whether a refusal has taken place at the collection site. This is a non-delegable duty.
• If an employer chooses to use oral fluid testing, the employer will likely will want to update drug testing policies to incorporate the new tests and the new procedures for direct observation tests. For example, if your policy specifically refers to “urine” as the authorized testing method, the test will need to be updated to include oral fluid and also to state testing events for which an oral fluid collection will be done.
• A good resource for additional information:  DOT’s Employer Handbook on DOT Drug and Alcohol Testing:                            https://www.transportation.gov/sites/dot.gov/files/docs/ODAPC_Employer_Guidelines_%20June_1_2015_A.pdf

For further information, please contact Janet Gilbert at jgilbert@fletcher-sippel.com or 312/252-1507.