Feds aim to fix concerns regarding oral fluid testing

The U.S. Department of Transportation is one step closer to implementing oral fluid testing as a means of sample collection for transportation workplace drug- and alcohol-testing programs.

In May 2023, the agency published a final rule that amended the current regulations to allow for the inclusion of oral fluid testing by employers to satisfy DOT drug-testing requirements. At that time, the DOT said the final rule was not intended to replace current collection methods but simply to add to the choices employers and drivers have when taking an agency-issued test.

Despite the department electing to allow oral fluid testing as an option, issues regarding laboratory certification and the training of individuals collecting the specimens have caused delays when it comes to the new collection process being implemented by employers. In June, the agency published a direct final rule intended to address those issues.

“We have determined instances in which the text of various aspects of the procedures as amended by the final rule (needs) to be further amended due to unforeseen circumstances rendering it impossible to comply with requirements for mock oral fluid collection observers, consistency with regard to privacy during testing and a need to clarify the means by which oral fluid collectors specify that a sufficient volume of oral fluid was collected,” the department said.

However, after receiving “adverse comments” regarding the amendments, the DOT withdrew its final rule in August – saying it would consider those comments before proceeding in the rulemaking process.

It appears that the consideration process is complete. In a final rule scheduled to publish to the Federal Register on Tuesday, Nov. 5, the DOT will announce amendments to the final rule that allow for the inclusion of oral fluid testing.

According to the agency, the amendments would:

• Provide temporary qualification requirements for mock oral fluid monitors
• Provide for consistent requirements by identifying which individuals may be present during an oral fluid collection
• Clarify how collectors are to document that a sufficient volume of oral fluid was collected

While these amendments help resolve “factual impossibilities” regarding training collectors as well as other concerns with the collection process, the ability for employers to implement the new testing procedure will have to wait.

Prior to the rule becoming effective, the U.S. Department of Health and Human Services will need to certify laboratories to conduct oral fluid testing. As of Oct. 1, the agency had yet to certify any labs for the oral fluid collection method.

As the department looks to button up the issues surrounding oral fluid testing, it and the Substance Abuse and Mental Services Administration are expected to publish a supplemental notice of proposed rulemaking regarding the inclusion of hair testing in the DOT drug testing program sometime in the fall. As of Monday, Nov. 4, that notice had not been published. LL