Michigan Labor & Employment Law Blog

Foster Swift’s Labor and Employment Law Blog previously published an overview of the DOT’s new rules regarding workplace drug testing using oral fluid and its implications for employers. (“USDOT Approves Oral Fluid Drug Testing”)  

The revisions to the final rule address several procedural issues related to oral fluid collection and its oversight, including:

• A reduction in the qualification requirements of individuals allowed to observe mock oral fluid collections required to become a “qualified collector.” This is to facilitate oral fluid training of individuals attempting to become qualified oral collectors and has a one-year sunset provision.
• Updated, for consistency, requirements for privacy which ensure that only the collector, the employee or a DOT representative can witness the testing procedure.
• Clarification on how collectors are to designate that a sufficient volume of oral fluid was collected.

Takeaways for Employers

The rule changes appear to be minor details but are significant. First, they clarify the way in which oral fluid testers can be qualified once the Department of Health and Human Services certifies two laboratories for oral fluid testing, which has not yet been done. Second, they help ensure drug testing is conducted fairly and consistently while maintaining the privacy of employees undergoing the testing process.

Employers required to conduct mandatory DOT drug and alcohol testing need to be aware of the new requirements and their implications.

The final rule is set to become effective on August 5, 2024, unless the DOT receives adverse comments, which could further delay the effective date.

Foster Swift attorneys have years of specialized experience in advising organizations and companies subject to DOT workplace drug and alcohol testing requirements. If you have concerns about the revised oral fluid testing procedures or other questions regarding workplace drug and alcohol screening, please contact Mark Koerner at mkoerner@fosterswift.com/517-371-8226.

Additional Resources for Workplace Drug and Alcohol Testing

SAMHSA Drug Testing Resources – The Substance Abuse and Mental Health Services Administration (SAMHSA) maintains a website featuring a comprehensive array of resources and guidelines related to federal workplace drug and alcohol testing. samhsa.gov/workplace/drug-testing-resources

Federal Transit Authority Drug and Alcohol Testing Resource Hub – The Federal Transit Authority (FTA) offers a website with access to a vast array of information, tools and resources on workplace drug and alcohol testing. https://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/Default.aspx