On February 28, 2022, The United States Department of Transportation (DOT) published a proposed rule for new drug testing guidelines, to include the use of oral fluid samples as an alternative to urine testing for controlled substances. The proposed rule does not affect alcohol testing, which must be conducted by blood or breath samples. The proposed rule covers all testing situations, generally described as Pre-Employment, Random, Reasonable Suspicion, and Post Accident testing.
If accepted, the Rule will revise part 40 of title 49 of the Code of Federal Regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” The comment period for this proposal ends March 30, 2022.
According to the DOT announcement in the Federal Register, which can be viewed in its entirety at federalregister.gov/d/2022-02364, “[t]his will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program.” Unfortunately some employees have figured out how to use fake urine and prostheses, both readily available.
Notably, the Department is not proposing the elimination of urine drug testing, but only that oral fluid testing be offered as an alternative. “Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use, and no single specimen type is perfect for every situation.” Further, according to the proposal, the U.S. Department of Health and Human Services (“HHS”) has determined that proper oral fluid testing provides “the same scientific and forensic supportability of drug test results as the Mandatory Guidelines for Federal Workplace Drug Testing Programs using urine.”
The proposal is in large part purposed with seeking a balance between the safety concerns of trucking companies, the motoring public and safety advocates on the one hand, and the driver’s right to privacy, which may be invaded by a company’s need to directly observe urine sample collection to ensure against cheating, on the other. The proposal expresses a concern that urine collections “are potentially invasive searches and seizures of private citizens, subject to scrutiny under the Fourth Amendment of the United States Constitution.” The DOT has sought to protect individual rights by ensuring visual and aural privacy, except for “cause”, such as “suspicious activity at the collection site or as determined by the laboratory testing of a specimen.”
The proposal describes additional policy considerations. Oral fluid testing is generally more cost effective than urine testing. The collection of oral fluid may be conducted at the scene of an accident. The proposal notes that it also provides windows of detection distinct from urine sampling. Oral fluids generally allow for effective detection of more recent drug use, while urine, which allows for more delayed detection, is likely more appropriately suited to detect intermittent drug use through pre-employment, random, return-to-duty, and follow-up testing.
The proposed rule does not address hair testing, which is used by some employers as a condition of employment and is generally viewed as far more accurate than other testing methods. It is not mandatory, however, and currently is not permitted as satisfying any testing prescribed by the FMCSRs.
The addition of oral fluid testing is a major step forward in that it permits flexibility and convenience. It is expected that the trucking industry will welcome this rule if it goes into effect. Indeed, the American Trucking Associations said, “We are elated that DOT is proposing the inclusion of oral fluids as an approved testing method for DOT purposes, ATA has long advocated for its inclusion, and the notice today is another step closer in getting it done.”
As always, we will continue to monitor this update and provide additional information as it is disseminated.