Oral Fluid Drug Testing Rules Released By USDOT

by G. Spencer Mynko, Esq.

Oral Fluid Drug Testing Rules Released By USDOT

The Department of Transportation (DOT) published a final rule (effective June 1, 2023) that, among other items, authorizes employers to use oral fluid drug testing as an alternative testing methodology to urine drug testing.

The final rule also:

harmonizes with pertinent section of the HHS oral fluid Mandatory Guidelines,
clarifies certain Part 40 provisions that cover urine drug testing procedures,
removes provisions that are no longer necessary,
adds eight new definitions, clarifying language to definitions and web links, and
updates provisions to address issues that have risen in recent years.

As a Medical Doctor, Certified DOT Medical Examiner, and Certified Medical Review Officer, I am well aware of the various excuses and tricks people use or try to avoid testing dirty in a drug test. These methods range from the usual “I have shy kidneys“, “ I can’t go“, to adulterating urine with chemicals used to “beat the test”, and to even a person catheterizing them self, and filling up their bladder with someone else’s urine. Because DOT rules do not mandate observed collections (generally speaking), people take advantage of this to provide adulterated or substituted urine specimens to beat the test.

Obviously, collecting saliva for drug testing avoids all of those shenanigans. The collection method is pretty simple. A person is given water from a sealed bottle to rinse out their mouth. They are observed for a short period of time and then fill a small container with spit. The saliva is then sent to a special lab for testing and the opportunity to falsify a test is severely diminished. Furthermore, testing for saliva obviates the embarrassment associated with direct observation of urine leaving the body, yet provides a simple way to directly observe the donor’s – and only the donor’s – native and pure bodily fluid being provided for testing. I don’t want to say “foolproof”, but oral fluid testing makes it damn harder to cheat.

Here Is The Summary From The USDOT Website:

“This final rule amends the U.S. Department of Transportation’s regulated industry drug testing program to include oral fluid testing. This additional methodology for drug testing will give employers a choice that will help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.

“In order for an employer to implement oral fluid testing under the Department’s regulation, the U.S. Department of Health and Human Services (HHS) will need to certify at least two laboratories for oral fluid testing, which has not yet been done.

“The final rule includes other provisions to update the Department’s regulation and to harmonize, as needed, with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid established by HHS.

“In addition, this rule amends the FAA, FMCSA, FRA and FTA regulations to ensure consistency within the Department of Transportation and by removing or adjusting references to the word “urine” and /or add references to oral fluid, as well as, removing or amending some definitions for conformity and to make other miscellaneous technical changes or corrections.

Oral Fluid (OF) Collection Basics

Standards have been implemented for testing all of the usual suspects: THC (marijuana), methamphetamine and amphetamines, opiates, sedatives, barbiturates, PCP, cocaine, and even alcohol. In other words, there’s nothing that can’t be detected in saliva that is already commonly detectable in urine.

The Collector must be trained to collect oral fluid specimens in accordance with OF Guidelines.

Anyplace, Anytime, Anywhere

However, unlike having to go to a clinic or hospital for urine or blood, oral fluid can be collected at a worksite or offsite location. This is simple, because with “Zoom” and modern day smart phones, the observer can observe the donor with their phone, watching them open up a sealed water bottle, cleansing their mouth out, swallowing and rinsing, opening their mouth, and then, ensuring that the saliva is collected unadulterated, and properly sealed. Again, this is a game changer.

Furthermore, only a minuscule amount – 1 ML – of saliva needs to be collected to ensure an accurate test.

Step By Step

For those of you interested in the actual procedure, here you go:

Collector tells donor to open mouth and remove any items that may interfere with collection of oral fluid (gum, candy, food, tobacco, etc.)

  • Collector visually inspects oral cavity
  • Provide up to 4 oz of water for donor to rinse mouth
  • If donor claims “dry mouth,” 4 oz of water may be provided to rinse or drink
  • Collector observes donor during 10-minute wait period before collecting specimen
  • Collector explains collection procedures
  • Donor is provided sealed/wrapped collection device, which is opened in donor’s presence
  • Donor positions collection device between gum and cheek in the mouth; collector observes
  • When volume indicator demonstrates collection of sufficient specimen, donor removes collection device from mouth and places it in the specimen vial or tube

I understand most of my readers may not be interested in the step by step process of saliva collection, BUT I’m sharing this to make the point as to how sophisticated and methodical OF testing is and that it can even be performed in the cab of a truck.

Surge of Dirty Tests

“According to Chris Harvey, Wells Fargo’s head of equity strategy, drug screenings paired with the nature of the job — which often requires truckers to spend weeks-on-end away from home — has led many truck drivers to leave the industry. Harvey said the issue will “continue to push that price even higher,” worsening a surge in transportation costs that have left consumers facing price hikes and shortages.”

“It’s really about drug testing,” Harvey said, speaking at an industry conference on Wednesday. “We’ve legalized marijuana in some states but, obviously, not all … What we’ve done is we’re excluding a significant portion of that trucker industry.” See https://www.businessinsider.com/marijuana-testing-leading-cause-trucker-shortage-wells-fargo-2022-2?op=1

Over 100,000 drivers have already been excluded due to dirty tests being reported to the Clearinghouse. The accuracy and reliability of OF testing will only make this even more of an issue in the future as more positive drug tests are likely to result.

Contact Transportation Attorneys for legal advice and questions about Drug Testing!