More than a year after it first proposed a rulemaking, the U.S. Department of Transportation on May 2 released a final rule officially sanctioning oral-fluid testing as a method for screening transportation workers—truck drivers among them—for use of illicit drugs.
The rule will take effect June 1, DOT noted in its publication to the Federal Register, but there will be a delay beyond that date in fleet-level implementation as the U.S. Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory and another to serve as a split-specimen lab) to process the tests. Commercial fleet operators can check back with an HHS listing of certified labs to see when they can start oral-fluid testing.
See also: Drug & Alcohol Clearinghouse starts proactive notifications
With release of the final oral-testing rule, trucking industry stakeholders noticed the continued absence of hair-follicle screening as a federally sanctioned method. Before DOT approved oral-fluid testing, urinalysis (and blood testing under limited circumstances) had been the only approved method. The FAST Act of 2015 passed by Congress—and signed into law by President Obama—instructed the government to formally sanction hair testing, but DOT has never done so.
“That’s everybody’s first question: Where’s hair testing?” David Heller, senior VP of safety and government affairs for the Truckload Carriers Association (TCA), a prominent voice for safety in trucking and a proponent of hair-follicle testing, told FleetOwner in a May 2 interview.
Long-running debate over hair testing
Many fleets already use hair testing in pre-employment screening of truck driver applicants and in random testing of drivers after they are hired, but hair-testing results can’t be submitted to the federal Drug & Alcohol Clearinghouse—which some stakeholders, such as the Alliance for Driver Safety & Security (also known as the Trucking Alliance) and Heller's TCA, see as a vulnerability in the system because hair testing generally is seen as more accurate and capable of discovering use of more illicit substances than urinalysis.
The Trucking Alliance stirred controversy in January 2022 with a study that claimed to show driver use of cocaine was underreported by the clearinghouse and that truckers use cocaine more than they do marijuana, though positive marijuana results to this day make up the majority—by far—of total clearinghouse violations. The study also took aim at urinalysis and bolstered the accuracy and reliability of hair testing. The Owner-Operator Independent Drivers Association (OOIDA) came out in opposition, with an OOIDA spokesperson calling the Trucking Alliance study “irresponsible” and with OOIDA criticizing the findings overall as “marketing material” that cast truck drivers in an unfavorable light.
See also: What fleets should know about clearinghouse changes for 2023
Earlier, in 2021, more than 88,000 CDL-holders applied for jobs at seven Trucking Alliance-affiliated trucking companies, and those applicants were asked to have both their hair and urine tested. Just over 400 drivers tested positive in the urine tests; 4,000 popped positive results from screening their hair, Heller reiterated.
“You would have thought this would have moved the needle [on hair testing], but it didn’t,” he told FleetOwner.
Since its debut in 2020, the clearinghouse has registered more than 3 million drivers and 425,000 employers, including more than 225,000 owner-operators. As of late last year, 4.5 million CDL-holders were queried within the first three years; more than 170,000 drivers were cited for violations. After a positive test, a truck driver goes into return-to-duty (RTD) status and can't get behind the wheel until they've cleared that status, which includes a regimen of counseling and more testing that can go on for months or even years. Around 90,000 drivers haven't completed this process, meaning they've given up on using their CDLs or are driving illegally.
Details of the new oral-fluid testing rule
The newly finalized oral fluid-testing rule does provide an alternative to urine testing and, as both Heller and DOT noted in its synopsis of the rule, makes cheating on drug tests harder and provides testing that is less intrusive than urinalysis because a simple mouth swab is all that is required. Oral-fluid testing will be handy for post-accident screening of drivers at the roadside, Heller noted in his interview with FleetOwner.
According to the new DOT rule, drivers could be subject to either an oral fluid collection or a urine collection for any DOT-regulated test in pre-employment, randomly, under reasonable suspicion and for cause, after an accident, or for return-to-duty and follow-up screening as part of the clearinghouse RTD process.
If there is a reason a second collection is needed during the testing event, (for example, the initial temperature is out-of-range for a urine specimen, or an insufficient quantity for either an oral fluid or a urine specimen), the employer may choose to change to the other type of collection to finish the testing event, according to DOT. The choice of whether to conduct an oral fluid or a urine test is entirely up to the employer, according to the DOT rule. DOT also has said that oral-fluid testing is generally less expensive for fleet operators or owner-operators (by $10 or $20) than urine testing.
