New DOT oral fluid testing rule: No need for action yet

Image: American Maritime Safety

On May 2, 2023, the Department of Transportation published a final rule in the Federal Register allowing oral fluid testing to be used for DOT drug tests, in place of urine-based testing, at the employer’s option.

American Maritime Safety (AMS), the non-profit trade association that more than 400 maritime companies use to facilitate their compliance with DOT and USCG drug and alcohol testing regulations, says that, although the rule is scheduled to go into effect on June 1, 2023, there are substantial regulatory roadblocks preventing its immediate implementation.

“In view of these roadblocks, and the fact that the final rule merely presents a specimen collection option, no action is required from you at this time,” AMS tells members in its latest newsletter

“Before oral fluid testing can be implemented, Health and Human Services (HHS) has to certify at least two laboratories: one as a primary specimen lab and one as a secondary. At this point, no laboratories have been certified.” says AMS. “When at least two laboratories are certified, we can expect notification from ODAPC and/or the HHS National Laboratory Certification Program. HHS will certify laboratories to utilize specific devices that can be used for oral fluid testing, so until the laboratories are certified we will not know what devices can be used for the process.

“In addition, maritime employers wishing to implement oral fluids testing for SMI (serious marine incident) and reasonable cause tests will be required to have their supervisory employees trained and certified in the applicable collection procedures. The oral fluids specimen collector training and certification process parallels the process currently in effect for urine specimen collection. AMS will provide oral fluid specimen collection training/certification for those employers who require that service.

“Employers will also be authorized to use both collection processes in the event that a problem arises with an initial collection. For example, in the event of an initial temperature out-of-range for a urine specimen, or insufficient quantity for either an oral fluid or a urine specimen, the employer may choose to change to the alternate collection process to finish the testing event. Again, the choice of whether to conduct an oral fluid or a urine test is up to the employer. Employees will not have the option to choose what testing methodology will be used.”

AWO SEEKS RAPID IMPLEMENTATION

Meantime, in its most recent newsletter, the American Waterways Operators (AWO) notes that the new oral fluid testing rule drug testing rule applies for the airline, rail, trucking, and transit industries that are under direct DOT regulation through the FAA, FRA, FMCSA, and FTA.

AWO says it is “working to understand the Coast Guard’s implementation process and timeline and will continue to advocate for rapid implementation to align maritime employers with other transportation modes.”