The U.S. Department of Transportation is advancing a rule to reconcile an “inadvertent factual impossibility” created by the inclusion of oral fluid testing in its workplace drug testing programs.
In a final rule published in the Federal Register on Monday, May 11, the department announced it would revise its drug and alcohol testing procedures to “require a directly observed urine collection in situations where oral fluid tests are currently required but cannot be conducted because oral fluid testing is not yet available.”
In its announcement, the department said the revision would essentially maintain the status quo until the U.S. Department of Health and Human Services certifies laboratories to conduct oral fluid testing.
That certification is something we have been waiting on since May 2023, when the DOT announced amendments to its testing programs that would allow for the inclusion of oral fluid collection as a means for testing.
Prior to employers being able to utilize the new testing method, HHS would need to certify at least two laboratories – one to serve as a primary lab and a second to serve as a split-specimen laboratory. As of now, the agency has yet to certify a single lab.
In addition to certification issues, the implementation of oral fluid testing was also slowed by what the DOT calls “unforeseen circumstances rendering it impossible to comply with requirements” for training specimen collectors. In November 2024, the department published a direct final rule to address those issues and other “factual impossibilities” in the collection process.
Additionally, the May 2023 final rule included language requiring an oral fluid test when an observed collection is required.
Some instances that would require an observed collection include if the original sample was determined to be invalid without an adequate medical explanation or if the test is for a return to duty.
In December 2024, the DOT published yet another supplemental notice of proposed rulemaking announcing interim provisions allowing directly observed urine tests in lieu of an oral fluid test and opened a public comment period on the proposal.
The final rule – which the DOT says is intended to serve as a “temporary, short-term solution” – will go into effect on June 10 and sunset one year after HHS announces it has certified a second oral fluid testing laboratory. LL
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