USDOT approves mouth swabs for regulated drug screens
Updated: May 11, 2023
The USDOT and its subagencies, including the Federal Motor Carrier Safety Administration, have amended their respective drug/alcohol testing regulations to add oral fluid as an authorized testing method for the presence of unlawful drugs. According to the Final Rule to be published in the Federal Register on May 2, 2023 and to become effective 30 days after, “this additional methodology for drug testing will give employers a choice that will help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.”
Importantly, the USDOT notes that before employers can begin utilizing oral fluid testing, the Department of Health and Human Services must first “certify at least two laboratories for oral fluid testing, which has not yet been done.” So although the Final Rule makes the necessary regulatory revisions to allow for oral fluid testing, such tests are not authorized quite yet.
The USDOT’s drug-testing rules--generally applicable to all modes of regulated transportation, including highway--require regulated employees to submit to drug tests in certain circumstances. Prior to today’s Final Rule, the only acceptable means to conduct these required tests was urinalysis and, in certain situations, blood analysis.
As justification for this change, the USDOT explains:
We recognize directly observed urine specimen collections have long been the most effective method for preventing individuals from cheating on their drug tests by substituting or adulterating their specimens, but directly observed urine collection may only be done in certain circumstances due to employee privacy concerns (see 49 CFR § 40.67). All oral fluid collections are directly observed because they are always collected in front of the collector. Unlike a directly observed urine collection, an oral fluid collection is much less intrusive on the tested employee’s privacy. Therefore, adding oral fluid testing as an option 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.
The USDOT is accomplishing these changes by revising Part 40 of Title 49 of the U.S. Code, along with modal-specific Parts like 382, which pertains to highway transportation. The full list of changes, as well as the USDOT’s responses to concerns raised during the comment period, can be found in the Final Rule.
This change comes amid a significant uptick in positive drug screens over the past few years. According to recent data from the FMCSA’s Drug & Alcohol Clearinghouse, a total of 53,693 drug/alcohol violations were reported to the Clearinghouse in 2020. In 2022, that number had risen to 69,636, a nearly 30% increase year over year. Unsurprisingly, marijuana is the most common culprit for positive drug screens, with over 107,000 reported cases to the Clearinghouse since 2020.
Perhaps most shockingly of all, Clearinghouse data indicates there are currently 125,810 CDL drivers in so-called “prohibited status,” meaning they are disqualified from operating commercial vehicles due to a drug/alcohol violation. This is clearly a major issue in the industry, one that could very well be exacerbated with the introduction of oral fluid testing.
If you have questions about this Final Rule or how it may impact your fleet, feel free to contact us.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.