DOT takes heat for drug testing certification delays

WASHINGTON — Drug testing facilities that have invested in oral-fluid-based testing for motor carriers, airlines, railroads and pipeline operators are pushing back on a proposal by the U.S. Department of Transportation that would temporarily reinstate urine-testing requirements.

DOT’s notice of proposed rulemaking, published in December, would revise its May 2023 drug testing procedures final rule, which became effective in June 2023.

In the final rule, DOT codified a procedure requiring that an oral fluid test – rather than a urine test – be conducted in certain circumstances when an observed collection is required, for example, if the original sample was invalid without a medical explanation, or to satisfy a successful return to duty for a truck driver.

However, oral fluid testing cannot be implemented until the Department of Health and Human Services certifies at least two laboratories, one to serve as a primary laboratory and a second to serve as a split-specimen laboratory – something HHS has not yet been able to do.

“Because no oral fluid laboratories have been certified, it is not yet possible to comply with this provision,” DOT stated in its proposed rule.

To address the problem, DOT proposed amending its regulations to require the conduct of directly observed urine collections in those circumstances for an interim period.

“We intend this provision to require directly observed urine tests in situations where an oral fluid collection is required, but is not yet available, to be a temporary, short-term solution,” DOT stated. “This provision will sunset one year after HHS publishes a Federal Register notice that it certified the second oral fluid drug testing laboratory.”

DOT pointed out that the proposed rule “will not affect a significant number of drug tests, and as such, will not impose any significant costs or have any significant impacts on the DOT testing program.”

But others disagree, pushing back on the one-year sunset provision included in the proposed rule.

“We have spent quite a bit to get people trained and in new lab kits in preparation for the new regulation, and delaying this any further means return on these investments will be pushed back as well,” Indira Narinesingh, a principal with Occupational Health Solutions, a health care services company, told FreightWaves.

Her company works primarily in the oil and gas pipeline sector. However, “these concerns would apply equally with any of the [DOT] modalities,” Narinesingh said.

In comments filed with DOT, Narinesingh wrote that DOT should be focusing on expediting the lab certification process “rather than implementing temporary measures that create additional operational complexity and financial burden for regulated entities.”

“We respectfully request that the Department reconsider this proposed rule and instead prioritize working with HHS to accelerate the certification of oral fluid testing laboratories.”

KorManagement Services LLC, which provides workplace drug and alcohol testing programs, commented that because sample collectors have been conducting oral fluid collection training, “one year grace time puts undue burden and confusion on those who paid significant amount of money for training and travel to be trained to become oral fluid collector trainers and to train oral fluid collectors.”

“Extending this out for another year after laboratories are certified will add undue costs to all of the individuals who have met the requirements to train and be able to complete oral fluid collections when the company orders them or a direct observation is required.”

One of the benefits of giving employers an oral fluid option for drug testing is to “help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program,” DOT stated in the 2023 rule, and representatives of both small and large carriers generally supported the increased flexibility.

The Owner-Operator Independent Drivers Association cautioned when the final rule was proposed that “any new drug testing guidelines or regulations must prioritize privacy concerns of professional truckers.”