In a notice published to the Federal Register on February 28, 2022, the United States Department of Transportation (USDOT) is proposing to revise its existing drug and alcohol testing rules in 49 CFR Part 40 to, among other things, expand the allowable methods for DOT drug testing to include oral fluids. According to the agency, "this 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."
The proposed rule revises other provisions of the Department's regulations to:
Harmonize, as needed, with the new Mandatory Guidelines for Federal Workplace Drug Testing Programs established by the U.S. Department of Health and Human Services;
Allow direct observation urine collections by any licensed or certified medical professional legally authorized to take part in a medical examination in the jurisdiction where the collection takes place;
Allow MRO staff to contact pharmacies to verify a prescription that an employee provided;
‘Un-cancel’ a test that was ‘cancelled’ by the MRO if circumstances dictate;
Allow the use of options of official identification numbers issued by State or Federal authorities to be used instead of Social Security Numbers;
Require laboratories provide to DOT bi-annually data that is categorized by test reason and specimen type;
Require laboratories withdrawing from the National Laboratory Certification Program to provide DOT with the final data report for the reporting period in which they withdrew;
Require laboratories to keep non-negative specimens for only 90 days;
Require that the phone number provided on the Federal Drug Testing Custody Control Form for collectors connect directly to the collector and/or the collector’s supervisor and not a general call center;
Remove provisions that no longer are necessary (such as compliance dates);
Add clarifying language to other provisions (such as updated definitions and web links where necessary); and
Allow Substance Abuse Professional (SAP) to conduct evaluations virtually.
Background on drug testing methods
As addressed in the proposed rule, the Department's existing drug-testing rules--generally applicable to all modes of regulated transportation, including highway--require regulated employees to submit to drug tests in certain circumstances. Under current rules, the only acceptable means to conduct these required tests are urinalysis and, in certain situations, blood analysis.
These methods can be, according to the Department, intrusive of employees' privacy. That said, "the Department protects individual rights by ensuring visual and aural privacy for employees undergoing urine testing. Allowing directly observed collections only for ‘‘cause’’ (i.e., suspicious activity at the collection site or as determined by the laboratory testing of a specimen) is another protection. Yet, because the vast majority of DOT-regulated urine drug collections are unobserved, the program remains vulnerable to cheating by employees at the collection site, which can result in adulteration or substitution."
As a result, the Department is now proposing to authorize oral fluid testing as an alternative testing method.
The Department is proposing to add oral fluid testing as an alternative testing method because . . . it has been determined by HHS to be scientifically viable for Federal workplace programs and because it provides a directly observed collection for every test. The collection of oral fluid is less invasive than directly observed urine collection and, therefore, is consistent with the careful balancing of an individual’s right to privacy with the Department’s strong interest in preserving transportation safety by deterring illicit drug use.
In its notice, the Department acknowledged that employers should be aware of the differences in so-called "detection windows" between oral testing and urinalysis. "In proposing oral fluid testing, the Department is offering an alternative specimen for drug testing; however, we are not proposing to eliminate urine drug testing. 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. It is important to understand the benefits and limitations of each method."
The Department's proposed rule is open to public comment through March 30, 2022. Comments can be submitted online at www.regulations.gov in docket number DOT–OST–2021–0093.