Do drug-testing protocols pass the test?

In November, the U.S. Department of Transportation took its latest action regarding drug testing.

This time, the DOT moved closer to implementation of oral fluid testing as a means of sample collection for transportation workers.

In a final rule published to the Federal Register on Nov. 5, the DOT announced amendments to the final rule that allow for the inclusion of oral fluid testing.

Previously, 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 DOT 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.

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.

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

Hair testing

Health and Human Services’ Substance Abuse and Mental Services Administration also is expected to publish a supplemental notice of proposed rulemaking regarding hair testing.

According to the Spring 2024 Unified Regulatory Agenda, a hair testing proposal was scheduled to be unveiled in October. As of press time in early November, however, the proposal was still under review by the White House Office of Management and Budget.

The proposal has been sitting at OMB since it was submitted on March 31, 2023.

The push to incorporate hair analysis has been a slow process with plenty of opposition along the way.

HHS released a notice of proposed rulemaking that would establish hair-testing guidelines for Federal Workplace Drug Testing Programs in September 2020. In its initial proposal, the agency sought to “allow federal executive branch agencies to collect and test a hair specimen as part of their drug-testing programs with the limitation that hair specimens be used for pre-employment and random testing.”

In November 2020, the Owner-Operator Independent Drivers Association filed comments opposing the inclusion of hair testing.

OOIDA cited a number of concerns regarding the practice, questioning its reliability due to contamination from the environment and the interference of cosmetic treatment on analysis. Furthermore, the Association said that variances in hair types can create issues when it comes to testing.

Following a 60-day comment period, HHS submitted a revised version of the proposal to the White House Office of Management and Budget in March 2023.

It is unclear when the proposal will see the light of day. In addition, it is unknown how the supplemental proposal will differ from the original notice.

Marijuana

Another drug-related hot topic has been the potential rescheduling of marijuana.

In May, the Drug Enforcement Administration submitted a notice of proposed rulemaking that seeks to no longer classify marijuana as a Schedule I drug, a category of substances deemed to have a high potential for abuse. Other Schedule I drugs include heroin, LSD, ecstasy and peyote. Schedule III drugs are substances with an accepted medical use and a moderate-to-low potential for abuse. Current Schedule III drugs include ketamine, anabolic steroids, testosterone and small doses of codeine.

The notice received about 43,000 comments. Many of the comments from the trucking industry included concerns that the reclassification could affect drug-testing programs for commercial drivers.

Transportation Secretary Pete Buttigieg has said that the DOT plans to continue testing for marijuana no matter how the drug is scheduled.

As of press time, the DEA planned to have a hearing on Dec. 2 to discuss the potential change. LL

Land Line’s Mark Schremmer contributed to this report.