DOT Announces Approval for Oral Fluid Testing, Part 40 Changes (but not yet…)

Effective June 1, 2023, the Department of Transportation (DOT) authorized oral fluid testing for the first time, marking a significant shift away from urine-only drug testing policies. This change provides employers with greater flexibility while affording employees enhanced privacy. The final rule, among other items, amends the DOT’s regulated industry drug testing program to include oral fluid testing. However, DOT oral fluid testing cannot be implemented until the Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory, and a second to serve as a split specimen laboratory). The DOT press release provided everyone with a listing of HHS-certified laboratories https://www.transportation.gov/odapc/labs.

The new regulation is not proposing to eliminate urine testing; rather, oral fluid testing will be an alternative.  Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use.  Most significantly, DOT’s new rule states that the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection for marijuana is 3 to 67 days.

What do you need to know about the use of oral fluid testing and Part 40 changes?

  • Employees can be subject to either an oral fluid collection or a urine collection for any DOT-regulated test (pre-employment, random, reasonable suspicion/ cause, post-accident, return-to-duty, or follow-up).
  • The employer can choose to conduct an oral fluid or a urine test, for the test reason.
  • It is a best business practice to have a standing order in place with each collection site, so they know what kind of collection is to be performed (i.e., urine or oral fluid) and when.

There are also some changes for Substance Abuse Professionals (SAPs). A SAP evaluation may be conducted remotely as long as the technology used permits real-time two-way audio and visual interaction between the SAP and the employee.

Lastly, there are a few changes relating to Medical Review Officers (MROs).

  • MRO staff (not just an MRO) may contact a pharmacy to verify a prescription that an employee has cited as a potential legitimate medical explanation for a laboratory-confirmed positive test.
  • MROs are not required to undergo recertification training, but it is strongly suggested that MROs seek supplemental information about oral fluid testing by the time HHS certifies at least two laboratories to conduct oral fluid testing.

All employers with regulated employees should view the new final rule on ODAPC’s website.

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