Oral Fluid Drug Testing for DOT Employers

The new rule applies to safety-sensitive employees in the transportation industry. This includes all agencies covered by DOT regulations, including the Federal Aviation Administration (FAA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA). The rule will also affect specimen collectors, laboratories and medical review officer’s. This is a Federal program so no State drug testing laws will affect this program.

This final rule is effective on June 1, 2023. However, oral fluid collections will not be available for DOT-regulated employers until such a time as the Department of Health and Human Services (DHHS) approves two laboratories for oral fluid. Also, an oral fluid specimen collection device must become available and be FDA approved. It is estimated that none of this will happen until first quarter or 2024 or later.

Oral fluid testing was implemented as an alternative to urine drug testing providing options for employers to use oral fluid and/or urine specimens. Additionally, DOT was required to harmonize with pertinent sections of the HHS/SAMHSA oral fluid Mandatory Guidelines. Some specific reasons to add oral fluid are:

1. a) Easy collection, not gender specific and always direct observed
2. b) An oral fluid collection can eliminate the uncomfortable urine direct observation procedures
3. c) No bathroom requirements, Oral fluid collections can occur in a variety of locations and eliminate many collection issues found with urine.
4. d) Some employers may elect to train employees to perform in house oral fluid collections
5. e) Oral fluid drug testing provides for a recent window of drug use detection which may be particularly useful for post-accident and reasonable suspicion testing.

Collection sites, applicants and employees cannot choose which specimen to be used. Only the employer can authorize the use of either urine or oral fluid or switch to the other when there might be a problem collection such as:

1. a) A temperature that’s out of range
2. b) A shy bladder with up to a three-hour wait time
3. c) A specimen that appears to have been tampered with
4. d) Dry mouth

As with urine, detection times vary and is not an exact science. Oral fluid drug testing will for sure have more recent use detection. A drug may be detected in oral fluid in less than one hour and remain detectable for five up to 48 hours after last use.

DOT oral fluid drug testing can be used for any of the DOT reasons for testing which include:

1. a) Pre-employment
2. b) Post-accident - makes sense because of the recent use detection
3. c) Random
4. d) Return-to-duty - makes sense to avoid the required direct observation
5. e) Follow-up - makes sense to avoid the required direct observation
6. f) Reasonable Suspicion/Cause - makes sense because of the recent use detection

Collectors will need to be trained to perform oral fluid collections and the training will include methods to observe potential cheating. Potential cheating techniques might be drinking excessive amounts of water, using products that claim to clean oral fluid, aggressively brushing their teeth, tongue, and cheeks, excessively rinsing with antiseptic mouthwash, chewing ice and or eating mints. DOT regulation 49 CFR Part 40 states:

1. (a) The collector must be present and maintain visual contact with the employee during the procedures outlined in this section.
2. (b) The collector must note any unusual behavior or appearance of the employee on the CCF. If the collector detects any conduct that clearly indicates an attempt to tamper with a specimen (e.g., an attempt to bring into the collection site an adulterant or oral fluid substitute), the collector must terminate the collection and report the information to the DER so that the employer can decide whether to deem the situation a refusal.

Additional steps for the oral fluid collection including a potential 10 minute period are outlined in DOT Rule 49 CFR Part 40 Section 40.72.

There is really no affect on Clearinghouse. All Clearinghouse requirements will remain to include reporting of violations including positive tests, refusals and actual knowledge. There would not be a Clearinghouse separate section to report violations.

There are a few things you can do now to start to prepare for oral fluid drug testing.

1. a) Get informed and make decision on when and where you will utilize oral fluid specimens and when and where you will continue to use urine specimens.
2. b) Determine how you will collect oral fluid samples (on-site with trained employees and/or professional technicians or at off-site collection facility).
3. c) Discuss these decisions with your drug testing third party administrator (TPA) and start the process of updating your policy and procedures to include oral fluid specimen collections and oral fluid drug testing.
4. d) Stay informed with regular updated from US Drug Test Centers

You would not have to have an option for urine, but you might lose business from employers who prefer to use urine specimens in certain situations. In addition, in a dry mouth situation, upon employer request you would not be able to switch over to a urine collection.

As employers make decisions on whether to use urine, oral fluid or a combination of both; the employer should communicate these decisions to the collection facilities they are utilizing. These decisions formulate what will be called “Standing Orders” to provide to the collection sites and C/TPA’s. If the employer has a standing order to allow oral fluid testing in such situations, the collector will follow that order. If the collection site is not aware of the standing order, they should be contacting the employee's Designated Employer Representative (DER) to determine which specimen to use. An example of a “Standing Order” could be:

Use oral fluid specimen collection:

1. a) For any drug testing that requires direct observation
2. b) Anytime a donor goes into a shy bladder process
3. c) After a urine specimen shows temperature out of range or appears to have been adulterated or substituted
4. d) Remote areas where finding a collection site is difficult (employer representatives can be trained to collect oral fluid specimens)
5. e) All post-accident and reasonable suspicion drug testing