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March 2022: U.S Department of Transportation Publishes Rules for Oral Fluid Drug Testing

23 Mar

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Update Applicable to:
All employers covered by federal regulations from the U.S. Department of Transportation (DOT)

What happened?
On February 28, 2022, the DOT published in the Federal Register a notice of proposed rulemaking for oral fluid drug testing.

What are the details?
This notice is to harmonize with the mandatory guidelines for the Federal Workplace Drug Testing Programs Using Oral Fluid established by the U.S. Department of Health and Human Services in 2020.

The DOT is not proposing to eliminate urine testing, but to provide another option for employers applicable to these regulations as the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection is three to 67 days.

The DOT also proposes training criteria for oral fluid collectors, provides requirements for oral fluid collection sites, and sets forth steps that operators of collection sites and collectors must take to protect the security and integrity of oral fluid collections.

The addition of another specimen for drug testing also will be useful in the event that a second collection is required (e.g., insufficient quantity of urine, the temperature is out of range, or insufficient saliva). While a urine specimen and oral fluid specimen may not be collected at the same time, a different specimen may be collected when there is a problem with an initial specimen collection.

Due to oral fluid testing being new, the DOT invites and seeks comments on the following:

  • accuracy of these windows of detection,
  • the many issues including who should be permitted to collect oral fluid specimens,
  • whether Medical Review Officers should receive additional training for reviewing oral fluid tests,
  • how to handle situations where insufficient oral fluid is provided by the tested individual,
  • who should decide whether a different specimen may be collected,
  • how employers and collection sites should communicate about it, and more.

Comments on the notice of proposed rulemaking should be submitted no later than March 30, 2022.

For more information, please see the links below:

Article

Federal Register Notice

What do employers need to do?
Employers who fall under these federal regulations should review the links above and provide a comment via the Federal Register notice.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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