Joshua C. Hausman, Esq., Campbell Durrant, P.C. | June 2023
On May 2, 2023, the U.S. Department of Transportation (“DOT”) published a notice of final rulemaking which should be of great interest to all employers with DOT-regulated drug testing programs. Effective June 1 of this year, the final rule adds “oral fluid testing”—i.e., saliva testing—as an alternative drug testing method. With this new rule, a more modernized and less intrusive form of workplace drug testing is now within spitting distance.
Previously, the only form of drug testing authorized under the DOT’s workplace drug and alcohol testing regulations for most industries required the collection of a urine specimen. Federally mandated drug tests are, however, subject to the Fourth Amendment’s prohibition on unreasonable searches and seizures, and the DOT has since the inception of these regulations struggled to achieve the correct balance between the privacy interests of the employee and the public interest of promoting transportation safety in regulated industries. In 2008, the DOT acted to expand the scenarios in which “direct observation” testing could be performed, partly in response to concerns about cheating on urine tests through the use of synthetic substances or prosthetic devices. More directly observed tests, of course, meant additional intrusions on employee privacy. However, unlike urine collections, oral fluid tests can be conducted under direct observation while simultaneously being much less intrusive. According to the DOT, the approval of oral fluid testing, therefore, promotes privacy interests while also preserving transportation safety.
Under the revised regulations, employers will have the option to use either urine or oral fluid testing in conducting drug and alcohol tests for safety-sensitive transportation employees. This includes federally mandated pre-employment, post-accident, random, reasonable suspicion, return-to-duty, and follow-up testing. The final rule makes clear that it is the employer, and not the employee, which determines what testing methodology is to be used and when in most scenarios. For example, an employer may elect to conduct random tests via urine collection, while follow-up tests could use oral fluid testing. Employers could also begin the testing process using one methodology, while secondary collections could be conducted using the other testing method should problems occur such as out-of-range temperatures, insufficient quantity of the specimen, or “shy bladder.” However, as an exception to the general rule that it is the employer’s choice to determine the type of test to be conducted and when, the final rule does provide that oral fluid testing must be available when a same gender collector is not available to conduct a directly observed urine collection, or in circumstances involving nonbinary or transgender employees. The DOT recommends that employers have standing orders in place with collection sites to address these scenarios and to otherwise specify what forms of tests are to be conducted, and in what circumstances.
Although the regulations will become effective June 1, employers may not begin implementing oral fluid testing in a federally regulated drug testing program until the Department of Health and Human Services (HHS) certifies at least two (2) testing laboratories. So far, HHS has not certified any laboratories to conduct oral fluid drug testing, but its certification lists are updated monthly. Additional information can be found here: https://www.samhsa.gov/workplace/drug-testing-resources/certified-lab-list.
All employers subject to DOT-mandated drug and alcohol testing requirements should revise their drug and alcohol policies to add oral fluid testing as a permitted drug testing methodology. While it is in most cases the employer’s decision as to what testing method to utilize, the regulations in certain limited scenarios like those described above do require that oral fluid testing be conducted, and so policies should be revised to reflect this possibility. Employers should also develop standing orders with their collection sites to clearly specify the types of tests to be conducted in different scenarios. Public employers in Pennsylvania must also remember that certain aspects of a drug and alcohol testing program, including the types of tests to be conducted, are mandatory subjects of bargaining. Because the DOT’s final rule makes available—but does not require in most scenarios—oral fluid testing, public employers should be prepared to negotiate the availability of oral fluid testing in non-mandatory scenarios with the representatives of their collective bargaining units.