DOT floats temporary change to drug testing procedures

Washington — The Department of Transportation wants to “correct the inadvertent factual impossibility” created by its rule that has established oral fluid drug testing as an approved method for truck drivers and other transportation workers in safety-sensitive positions.

The problem: Employers of these workers can’t enact oral fluid testing until the Department of Health and Human Services has certified at least two laboratories to conduct it. And a notice from HHS published Dec. 2 indicates that no labs have been certified.

Under a proposed rule published Dec. 9, however, DOT would temporarily revise drug testing procedures to require employers to directly observe urine tests “in situations where oral fluid tests are currently required but oral fluid testing is not yet available.” Scenarios include if an original sample “was invalid without adequate medical explanation” or testing is for a worker’s return to duty.

As part of a May 2023 final rule, DOT approved oral fluid drug testing as an alternative for workers regulated by the Federal Motor Carrier Safety Administration, Federal Aviation Administration, Federal Railroad Administration and Federal Transit Administration.

A revised DOT final rule that went into effect Dec. 5 states that employers can’t implement oral fluid testing until HHS has certified at least two laboratories to conduct it.

In July, a spokesperson for HHS’ Substance Abuse and Mental Health Services Administration told Safety+Health that the agency is considering certification applications filed in the spring by three laboratories. The process typically takes three to six months from the receipt of application, the spokesperson added.

DOT said it intends the provision to be a “temporary, short-term solution.”

It adds: “This provision will sunset one year after HHS publishes a Federal Register notice that it certified the second oral fluid drug testing laboratory. So that all are aware of the date when this provision will sunset, we will publish a Federal Register document specifying the date the second oral fluid laboratory is certified by HHS.”

The deadline to comment on the proposed rule is Jan. 8.