On May 11, the Department of Transportation (DOT) published a final rule amending its drug and alcohol (D&A) requirements under 49 CFR Part 40. In 2023, DOT amended regulations to add oral fluid testing as an additional drug testing method, and in certain situations, to require a directly-observed collection to be an oral fluid test as opposed to a urine test. However, because there are currently no Department of Health and Human Services (HHS) certified laboratories available to perform oral fluid testing, employers cannot yet utilize this testing method.
Therefore, DOT made the following changes:
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Employers are permitted to use directly observed urine collections in situations where oral fluid testing would otherwise be required, so long as oral fluid testing is not available.
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Oral fluid testing will be considered “available” only if at least two HHS-certified oral fluid laboratories are available, a qualified oral fluid collector is available, and a conforming oral fluid collection device is available at the collection site.
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The proposed transition period has been extended and an 18-month grace period following HHS’s announcement of a second certified oral fluid drug testing laboratory has been adopted.
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The term “gender” is replaced with “sex” in certain provisions of Part 40 to conform with E.O. 14168 and a prior drafting error referencing “observer” versus “collector” in § 40.67(g) has been corrected.
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Language reminding collectors to consult the employer’s standing orders or contact the Designated Employer Representative for directions in specified collection scenarios under § 40.65 has been added.
The APGA Security & Integrity Foundation will be updating their new Anti-Drug & Alcohol Tool to address these changes. Learn more about that tool at https://apgasif.org/anti-drug-alcohol-plan-development-tool/