Michigan Labor & Employment Law Blog
On May 2, 2023, the United States Department of Transportation (“DOT”) published a final rule that authorizes employers to use oral fluid drug testing as an alternative methodology to urine drug testing. While the final rule became effective on June 1, 2023, employers may not conduct oral fluid testing until the United States Department of Health and Human Services (“DHHS”) certifies at least two laboratories to conduct such testing (one to serve as a primary laboratory and one to serve as a split-specimen laboratory).
Using an individual’s saliva to test for controlled substances, oral fluid testing is directly observed by a laboratory technician, making the sample less susceptible to adulteration or tampering. Oral fluid drug testing may also improve the effectiveness of drug testing in that oral fluid testing can detect the recent use of some drugs, including marijuana and cocaine, while urine drug testing has a longer window of detection. It should also be noted that the DOT has stated that oral fluid drug testing is not an “impairment test”. While an oral fluid drug test may provide a better indicator of recent use, it also detects frequent users. In addition, DOT has stated: “Importantly, the DOT testing program is a deterrence-based program to prevent illegal drug use, not an impairment testing program.”
What does the new rule mean for employers?
Under the new rule, the employer, not the employee, chooses the collection methodology for all DOT-regulated drug tests, including preemployment, random, reasonable suspicion, post-accident, follow-up, or return-to-duty tests. As an example, DOT indicated that for a random test, an employer may start with a urine test, with any follow-ups using the oral fluid test. The employer also chooses the collection methodology for subsequent tests following a shy bladder, dry mouth or other test that requires observed collection.
Once the two laboratories have been certified by DHHS, employers choosing to add oral fluid drug testing will want to revise their written drug and alcohol testing policies to include this methodology along with procedures for oral fluid drug testing. In addition, employers will need to use DHHS-certified laboratories for oral fluid drug testing and should have a standing order in place with each collection site, so that the collector knows what kind of collection methodology the employer has chosen to use for each test type.
We will continue to monitor changes in the law. If you have further concerns about what this final rule means for drug testing of employees, please contact Mark Koerner at 517.371.8226 or at mkoerner@fosterswift.com.
ShareholderMark Koerner focuses his practice in two niche areas -- Transit Authority Law and Environmental Law. As he has from the start of his legal career, he also counsels and represents a range of other clients on litigation, business law, and ...
