On February 28, 2022, the Department of Transportation (DOT) issued a Notice of Proposed Rulemaking (NPRM) proposing to amend the transportation industry drug testing program procedures. Several changes are being considered but the proposed regulation most worth noting would add oral fluid testing to the existing urine drug testing procedures for safety-sensitive workers including commercial truck drivers.
The public was given 30 days to submit comments on this proposal, all due by March 30, 2022.
The idea of oral fluid testing for drugs is not new. The Department of Health and Human Services (HHS) and DOT first asked for comments about directly observed alternative testing methods such as oral fluid, hair, and sweat testing in 2004. DOT states that although science supporting oral fluid testing did not meet HHS standards in 2004, research studies now demonstrate that the oral fluid testing method is now acceptable for identifying illicit drug use in the Federal workplace.
In 2019, HHS issued oral fluid testing guidelines for Federal Workplace Drug Testing Programs using Urine stating that 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.” Federal employees (not those under DOT testing) became subject to oral fluid testing for drugs on January 1, 2020. Split specimen testing of oral fluid collections will still be available upon donor request for positive test results.
DOT is not requiring employers to use oral fluid testing instead of urine testing, nor is there a proposal for the type of test (e.g., pre-employment, random, reasonable suspicion, return-to-duty or follow-up) and there is no proposal to eliminate urine testing.
The NPRM asserts that giving employers flexibility in the type of specimen they collect will provide several benefits including being able to conduct oral fluid collections at the scene of an accident.
Oral testing and urine testing do, however, provide different windows of detection that employers should consider when deciding whether to use a urine or oral fluid test. The biggest detection window difference is for marijuana. With oral fluid testing, marijuana can be detected for up to about 24 hours of being used compared with a 3-day minimum for urine testing, and beyond 90 days when marijuana is used daily for many weeks.
Employers interested in detecting recent drug use in cases of reasonable suspicion or post-accident situations may opt for oral fluid testing. But, in pre-employment, random, return-to-duty, and follow-up testing where an employer is more concerned with a pattern of drug use or relapse, the longer detection window provided by urine testing may be preferable. DOT asked for comments regarding whether oral fluid or urine should be mandated, or prohibited, for certain tests.
Another advantage of oral fluid testing is the directly-observed collection it provides versus most urine collections, which are unobserved. Observed urine specimen collections are the most effective method for preventing specimen donor cheating on drug tests by substituting or adulterating specimens, but can only be done in certain circumstances. Also, the observation required when collecting oral fluid is much less intrusive than for urine.
Other advantages, according to the DOT, include oral-fluid testing being 20-40% less expensive than urine testing, the possibility of employers training company personnel to become qualified oral fluid collectors and eliminating costs for “shy bladder” collection procedures, and required related medical examinations. The DOT asserts that employers could save billions of dollars using oral fluid testing.
A potential disadvantage of the proposal is that if less expensive oral fluid is chosen by an employer for all testing situations, particularly pre-employment and random testing, it could diminish the effectiveness of the testing program to identify lifestyle drug users and will inadvertently increase the risk of injury to the public.
Hair testing is not being considered at this time. HHS proposed to set up standards for the use of hair testing for drugs in 2020 but the idea was severely criticized by the trucking industry because it would have required another sample, such as urine or oral, as a backup.
Two other noteworthy proposals are included in the NPRM. Comments are requested regarding a proposal to allow direct observation of 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.
Also, the proposal would allow Substance Abuse Professional (SAP) evaluations to be conducted virtually. SAP evaluations are currently permitted to be done virtually because of a temporary exception created because of the COVID-19 pandemic. This proposal would make that method of evaluation permanent.
This chart gives a comparison of oral fluid vs. urine specimen detection windows.
If you or a friend or loved one is seeking assistance for a substance abuse problem, please call TARP at 1-800-522-8277, or TAP at 1-800-253-8326.