Exciting news!!! The DOT has information regarding the recent rule which will allow for oral fluid testing for DOT-regulated employees.  While testing cannot begin quite yet, below is a notice that outlines the answers to some questions that may come up in this process. 

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On May 02, 2023, the Department of Transportation (DOT) published a final rule in the Federal Register (88 FR 27596). This final rule, among other items, amends the DOT’s regulated industry drug testing program to include oral fluid testing.

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When is the final rule effective?

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The final rule is effective June 1, 2023.

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Can anyone implement DOT-regulated oral fluid testing on the effective date?

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• Not yet!

• 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).

• Check here for the listing of HHS certified laboratories https://www.transportation.gov/odapc/labs.

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What does this mean for employees?

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• You could be subject to either an oral fluid collection or a urine collection for any DOT-regulated test [i.e., pre-employment, random, reasonable suspicion/ cause, post-accident (other than FRA [1]), return-to-duty, or follow-up].

  • If there is a reason a second collection is needed during the testing event, (e.g., initial temperature out-of-range urine specimen, or insufficient quantity for either an oral fluid or a urine specimen), the employer may choose to change to the other type of collection to finish the testing event.

• The choice of whether to conduct an oral fluid or a urine test is up to the employer.

• Substance Abuse Professional (SAP) evaluations may be conducted remotely (additional detail under the SAP section below).

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What does this mean for Consortium/Third Party Administrators (C/TPAs)?

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• If you are administering a program for an employer (to include C/TPAs administering a program for FMCSA-regulated owner operators) in accordance with the employer’s decision about the testing methodologies to be used, you need to make sure there are agreements in place for both oral fluid and urine collections and laboratory testing. 

  • While the employer may opt for only one methodology, oral fluid testing must be available for directly observed collections for transgender and nonbinary individuals.

• Ideally, ensure there are standing orders from the employer and that the collectors know what specimen they need to collect for regular collections and for direct observation, shy bladder, and dry mouth collections.

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What does this mean for employers?

• You, not the employee, choose the collection methodology for the test reason (e.g., randoms will start with urine; follow-ups will use oral fluid).

• You, not the employee, choose the collection methodology for the subsequent collection following a shy bladder, dry mouth, or other test that requires a directly observed collection.

• ​​​​Ensure you have business relationships with the oral fluid collectors and labs, whether directly or through your service agents.

• It is a best business practice to have a standing order in place with each of your collection sites, so they know what kind of collection you want performed (i.e., urine or oral fluid) and when.

• Designated Employer Representatives have always been required to be available to the collectors 24-7, but that is even more important now.

  • Ensure your phone number is correct on the CCF so the collector can reach you.

  • You need to be available to the collector to discuss if there are problem collections.

  • You should always be available to discuss standing orders on what type of test you want administered if problem collection scenarios arise (e.g., if an employee does not provide a sufficient urine specimen, do you want the collector to switch to an oral fluid collection?).

• It is the employer’s duty to determine whether a refusal has occurred at the collection site. Employers have never been able to delegate this duty. So, a collector can tell you something appears to be a refusal, but the final determination is yours.

  • Remember, if an employee does not appear for a pre-employment drug test or leaves the collection site before receiving a cup (for a urine collection) or unwrapping the device (for an oral fluid collection) it is not a refusal.

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What are some of the other changes to Part 40?

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• For directly observed collections, if the same gender collector cannot be found:

  • If the employer has a standing order to allow oral fluid testing in such situations, the collector will follow that order.

  • If there is no standing order from the employer, the collector must contact the DER and either conduct an oral fluid test if the collection site is able to do so or send the employee to a collection site acceptable to the employer for the oral fluid test.

• For direct observation collections involving transgender or nonbinary individuals, an oral fluid collection must be conducted.

• Beginning with Subpart C of Part 40, new sections have been added and numerous sections have been redesignated (i.e., renumbered and reordered), including the Appendices, to provide a more easily followed flow for users of the regulatory provisions specific to oral fluid drug testing (see the Table provided in the “Background” section of the final rule).   

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Where can I find a copy of the final rule?

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You can view the final rule on ODAPC’s web site.

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NOTE:   This document informally summarizes some of the important effects of the rule, but it is not a substitute for the rule and should not be relied upon to determine legal compliance with the rule.  ODAPC encourages affected entities, including employers and service agents, to review the final rule.

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Please feel free to contact us at 336-768-8104 or sales@coemanagementgroup.com if you need assistance managing your DOT program - It's what we do!