On May 2, 2023, the U.S. Department of Transportation (DOT) published a final rule amending its regulated drug testing program to include oral fluid testing. The DOT states this additional methodology for drug testing will give employers a choice that will help combat employees cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.

This change affects the Federal Motor Carrier Safety Administration as well as the Federal Aviation Administration, the Federal Railroad Administration, and the Federal Transit Administration. The final rule goes into effect on June 1, 2023.

Oral Fluid Testing Rule Overview

Directly observed urine specimen collections have been used for a long time and historically have been the most effective method for preventing individuals from cheating on their drug tests. However, these observed tests can only be done in certain circumstances due to employee privacy concerns. Oral fluid testing is an alternative testing methodology to urine drug testing that provides an untampered-with collection, as it is always directly observed by the collector.

In order for an employer to implement oral fluid testing under the DOT’s regulation, the U.S. Department of Health and Human Services (HHS) will need to certify at least two laboratories for oral fluid testing, which has not yet been done. In addition, there must be one HHS-certified laboratory to conduct the screening and confirmation drug testing on the primary specimen. A different HHS-certified laboratory must conduct the split specimen drug testing on the secondary specimen if the employee requests split specimen testing for a non-negative result.

In addition to offering an alternative, the final rule also:

• Harmonizes with the pertinent section of the HHS oral fluid Mandatory Guidelines for Federal Workplace Drug Testing Programs.
• Clarifies certain Part 40 provisions that cover urine drug testing procedures.
• Removes provisions that are no longer necessary.
• Adds eight new definitions, clarifying language to definitions, and web links to include references to oral fluid.
• Updates provisions to address issues that have risen in recent years.

Employer Next Steps

Since employers can now use either oral fluid or urine testing for drug testing methods, they should review the regulations for oral fluid testing and change their policies and procedures to reflect these changes if they intend to use this alternative method. It’s important for employers to determine what laboratories have been certified by the HHS, as this will dictate where specimens should be sent.

As of the date the final rule was published, the HHS had yet to certify any laboratories, so employers will have to wait to implement oral fluid testing until HHS certifies laboratories for testing.