The U.S. Department of Transportation (D.O.T.) has recently announced significant regulatory changes to its employee drug and alcohol testing program. These updates, detailed in the revised 49 C.F.R. Part 40, include the adoption of oral fluids drug tests as a mandatory testing method. The new regulations, set to take effect on June 1, 2023, will impact approximately 8 million transportation workers and cover various D.O.T. sub-agencies such as the Federal Aviation Administration (F.A.A.), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (F.R.A.), the Federal Transit Administration (F.T.A.), the Pipeline and Hazardous Materials Safety Administration (PMHSA), and the Coast Guard.
The D.O.T.’s decision to include oral fluids testing in its program is a direct response to the federal government’s endorsement of this method for federal workers in December 2019. Additionally, the Omnibus Transportation Employee Testing Act required the D.O.T. to align its testing requirements with those established by the Department of Health and Human Services (H.H.S.) for federal workers. While the D.O.T. engaged in a thorough rulemaking process and solicited input from stakeholders, the final regulations reflect the agency’s commitment to safety and compliance in the transportation sector.
With the forthcoming implementation of the oral fluids testing program, employers will have the flexibility to choose the type of sample they collect for drug testing purposes. This change offers advantages for both employers and employees. For instance, when an employee is unable to provide a sufficient urine specimen, an oral fluids test can be administered more efficiently than a second urine collection, saving time and resources. Moreover, alternative specimen collection methods can prevent delays or potential refusals to test, ensuring a smooth testing process.
The mechanics of oral fluids testing follow strict protocols outlined in Part 40. Trained collectors will assist in collecting and packaging samples to ensure accurate and reliable testing. The regulations also address measures to prevent tampering or substitution of samples. Notably, the use of oral fluids tests as observed collections will eliminate the requirement for same-gender observers, simplifying the testing process. This change is particularly relevant for transgender workers, as oral fluids tests will be the exclusive means of conducting observed specimen collections for this group.
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Employers will need to train collectors on administering oral fluids tests, familiarize themselves with the updated federal Custody and Control form, and establish protocols for determining the appropriate tests to administer. The revised regulations emphasize that employers, not collectors, are responsible for determining whether an individual’s conduct constitutes a refusal to test. Consequently, this determination will impact whether a second specimen collection is necessary or if the refusal is documented accordingly.
Furthermore, the updated regulations maintain the allowance for Substance Abuse Professionals (SAPs) to conduct remote evaluations for transportation workers who have violated drug and alcohol testing regulations. While this accommodation initially stemmed from pandemic-related concerns, it is worth noting that as of May 11, 2023, evaluations must be conducted face-to-face unless state licensing permits remote evaluations. Remote evaluations require secure audio/visual technology to facilitate communication between the SAP and the worker.
In parallel with the overarching changes outlined in Part 40, each D.O.T. sub-agency has made specific updates to its drug and alcohol testing program to align with the revised regulations. For example, the FMCSA has modified its regulations to eliminate the regular gathering of drug and alcohol testing history information from prior FMCSA employers. Instead, regulated employers now rely on the Drug and Alcohol Clearinghouse, an online database operated by the FMCSA, to access real-time information about commercial driver’s license (CDL) and commercial learner’s permit (C.L.P.) holders’ drug and alcohol program violations. However, it’s important to note that the Clearinghouse does not contain historical drug and alcohol testing data before January 6, 2020.
The implementation of oral fluids testing by the D.O.T. signifies a significant shift in the approach to employee drug and alcohol testing in the transportation industry. This method offers increased efficiency, flexibility, and accuracy in detecting substance abuse. By aligning its regulations with federal standards and leveraging technological advancements such as the Drug and Alcohol Clearinghouse, the D.O.T. aims to enhance safety and compliance among transportation workers.
As the June 1, 2023 effective date approaches, employers and employees in the transportation sector should familiarize themselves with the updated regulations, seek appropriate training, and ensure compliance with the revised testing protocols. Adhering to these requirements will not only promote safety on our nation’s roads, rails, and waterways but also contribute to the overall well-being of the transportation workforce.
