Employers who had hoped U.S. Department of Transportation (DOT) drug testing would expand into oral swab testing will still have to wait. It has been almost two years since the DOT published its May 2, 2023, final rule that expanded drug testing options to include oral fluid testing. With all the advantages of oral fluid testing discussed (less open to tampering and more protective of the employee’s privacy), requirements to make this testing compliant with the final rule have been in limbo.
In the final rule, the DOT required a minimum of two Department of Health and Human Services (HHS)-Certified Laboratories to be approved before oral swab testing can be used. At this time, there are no laboratories certified to conduct this test. The Substance Abuse and Mental Health Services Administration (SAMHSA) continues to provide monthly updates to its list of current labs that are certified to conduct DOT drug testing. Once they have a lab that is certified for oral swab testing, the list should be updated to include those labs as well. This list can be useful in tracking when labs become certified.
In the meantime, DOT has acknowledged that this hurdle to oral fluid testing has opened up another issue that the final rule created.
The May 2, 2023, final rule made oral fluid testing, rather than urine testing, required where collection is to be directly observed in certain circumstances, such as if testing for a return to duty. The DOT has acknowledged that employers are still waiting by purposing further rule making on December 9, 2024.
In the proposal, the DOT recommended amending the final rule to address the current inability to meet the requirement of oral swab testing and correct it by allowing directly observed urine collection instead while oral fluid testing remains unavailable. The correction, if approved, will remain in effect until a year after DOT has published in the Federal Register the date of when the second oral fluid laboratory is certified. That will allow urine testing until oral fluid testing meets the two laboratory requirements for a year.
The purposed amendment mentions this is an interim procedure, effectively giving some hope DOT will make efforts to get two certified labs available for oral fluid testing. However, a big question mark continues to linger on how long it will take for DOT oral fluid testing to become a reality. Those who wish to follow the DOT’s rule making on this subject can do so by clicking on the following: Part 40 Federal Register, Court Decisions, and Legislation.
Desiree Sullivan is an attorney for Employers Council.