DOT Proposes to Revise Its Drug Testing Procedure Rule

On Dec. 9, 2024, the U.S. Department of Transportation (DOT) proposed to revise its drug testing procedures rule to provide interim provisions requiring the conduct of directly observed urine tests in situations where oral fluid tests are currently required but oral fluid testing is not yet available.

The comment period is open until Jan. 8, 2025.

May 2023 Final Rule Overview

The DOT published a final rule amending the procedures for its drug testing program on May 2, 2023 (May 2023 Final Rule). The May 2023 Final Rule went into effect on June 1, 2023. The May 2023 Final Rule authorized oral fluid drug testing as an additional methodology for employers to use as a means of achieving the safety goals of the program.

DOT regulation § 40.67 requires that a collection be directly observed in certain circumstances (e.g., if the original sample was invalid without adequate medical explanation or the test is for a return to duty). In the May 2023 Final Rule, the DOT codified a procedure requiring the directly observed collection to be an oral fluid test rather than a urine test in certain situations. However, oral fluid testing cannot be implemented until the Department of Health and Human Services (HHS) certifies at least two laboratories: one to serve as a primary laboratory and a second to serve as a split specimen laboratory. Because no oral fluid laboratories have been certified, it is not yet possible to comply with this provision.

Proposed Revisions

The DOT proposes to require directly observed urine collections in the situations specified in § 40.67(g)(3) if an oral fluid collection is not yet available. In the interim, this is necessary to ensure that directly observed collections can still be conducted when required. The DOT emphasized that the responsibility of ensuring the collection takes place has always been a requirement the employer must satisfy. If a directly observed urine collection is required, the burden remains on the employer to provide an observer as specified in § 40.67(g) if the collection site cannot do so.

The DOT intends this provision to require directly observed urine tests in situations where an oral fluid collection is required but is not yet available as a temporary, short-term solution because there are currently no certified oral fluid laboratories.

This provision will sunset one year after HHS publishes a Federal Register notice that it has certified the second oral fluid drug testing laboratory. The DOT states

that it will publish a Federal Register document specifying the date the second oral fluid laboratory is certified by HHS. If, during the interim period, a collection site is able to conduct an oral fluid collection (HHS has certified at least two oral fluid drug testing laboratories and both a qualified oral fluid collector and a conforming oral fluid collection device are available at the collection site), an oral fluid collection would be required to be conducted.

Next Steps

Employers should continue to monitor these proposed rules to ensure they perform the proper drug testing procedures. Employers can submit comments to the proposed revisions until Jan. 8, 2025. 

Highlights & Important Dates

The DOT required an oral fluid test to be conducted in certain circumstances where an observed collection was required. However, because oral fluid testing is not yet available, the DOT is proposing to amend its regulations to require the conduct of directly observed urine collections in those circumstances for an interim period.

Jan. 8, 2024 

 The comment period closes.

This article is intended for informational purposes only and is not intended to be exhaustive, nor should any discussion or opinions be construed as professional advice. © 2024 Zywave, Inc. All rights reserved.