May 17, 2023

In a recent announcement, the Department of Transportation (DOT) approved an alternative means of drug testing workers in safety-sensitive positions. As of May 2, 2023, the Federal Register published the final rule determining the alternative to urine drug testing. In this case, DOT may use oral fluid drug testing.

However, it would not take effect until June 1, 2023. Once the law takes effect, employees can choose the oral fluid testing method for their employer’s drug testing programs. This alternative will become available to employees under the Federal Transit Administration, Federal Aviation Administration, Federal Motor Carrier Safety Administration, and Federal Railroad Administration.

However, employers cannot implement this method until after the Department of Health and Human Services (HHS) certifies at least two laboratories to conduct the testing. Unfortunately, HHS has not authorized any laboratories.

According to the DOT, this additional method would help prevent employees from cheating, as some have tried during urine tests. In addition, the laboratory would collect the oral fluid samples with the employee present. This method would further prevent employees from cheating. Furthermore, this testing allows employees greater privacy while maintaining the transportation industry’s safety goals for testing programs.

However, this does not mean oral fluid testing would replace urine drug testing. Instead, oral fluid testing will be another option. In addition, the HHS claimed both drug testing methods provide accurate and forensically defensible results. As such, they have no reason to discontinue either test.

Instead, the HHS recognized the value of both drug testing options. Furthermore, the Department believes the oral fluid option would help when urine samples prove insufficient for testing. It would also prevent cheating because the tester can stay in the employee’s presence, whereas direct supervision for urine collection requires “cause,” such as prior violations. Other exceptions include concerns about the individual’s constitutional privacy rights. However, the final rule does not require collection sites to offer both methods. Instead, they may choose to provide one or both.

Employers will soon have more options when it comes to drug testing. However, it is still crucial for employers to ensure that they follow all federal, state, and local laws concerning pre-employment screening during the hiring process. The best way to ensure you comply with all relevant laws during the background check process is to partner with a company you can trust.

Keep your business up to date on new laws and regulations with Pre-employ’s free news resources. Contact a sales rep today.

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