Overview
The U.S. Department of Transportation (DOT) published in the Federal Register on February 28, 2022 a notice of proposed rulemaking (“Proposal”) to amend the transportation industry drug testing program procedures regulation to include laboratory based oral fluid testing, rely on now-proven technology, and implement some lessons learned from the last two years.
First and foremost, it is important to note that it is unclear in the Notice of Proposed Rulemaking as to whether there is an oral fluid testing device available in the marketplace which will comply with the stated expectations concerning the device and the process related to oral fluid split specimen collection.
Also, since the rulemaking is a notice of proposed rulemaking, once public comments are received there will be a period during which the public comments will be reviewed, followed by drafting and publication of the final rule in the Federal Register with an effective and implementation dates.
Additionally, the various DOT Transportation Agencies (FMCSA. FAA, FTA, FRA, PHMSA and the Coast Guard) will likely need to publish conforming rules. This will take some time and how much time that may be is not clear at this point in time.
The full text of the Proposed Rulemaking is available at:
https://www.govinfo.gov/content/pkg/FR-2022-02-28/pdf/2022-02364.pdf
Public comments on this notice of proposed rulemaking were initially to be submitted by March 30, 2022 but the comment period was subsequently extended to April 29, 2022.
https://www.govinfo.gov/content/pkg/FR-2022-03-22/pdf/2022-05972.pdf
Details for filing public comments are included in the Notice of Proposed Rulemaking and are also included as follows for your convenience should you care to file comments on this rulemaking by April 29, 2022.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
- Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/ DOT-OST-2021-0093/document and follow the online instructions for submitting comments.
- Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor Room W12–140, Washington, DC 20590–0001.
- Hand delivery: West Building Ground Floor, Room W–12–140, 1200 New Jersey Ave. SE, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329. Instructions: To ensure proper docketing of your comment, please include the agency name and docket number DOT–OST–2021–0093 or the Regulatory Identification Number (RIN), 2105–AE94 for the rulemaking at the beginning of your comments. All comments received will be posted without change to http:// www.regulations.gov, including any personal information provided.
Discussion:
There are well over forty separate requests for comments included in the Notice of Proposed Rulemaking. These requests span a large number of topics relative to both laboratory based oral fluid testing and 49 CFR Part 40 current regulatory requirements.
Following are the more impactful proposals subject to comment:
Permit Oral Fluid testing as an alternative drug testing method for DOT-regulated workplace testing
DOT is proposing to add oral fluid testing as an alternative to urine-based testing. DOT states that each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use, especially when windows of detection are taken into consideration. Specifically, DOT’s proposed rule states that the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection for marijuana is 3 to 67 days. DOT invites comments on the accuracy of these windows of detection. If accurate, oral fluid testing would provide employers with a method for detecting recent use of marijuana, which will be beneficial for reasonable suspicion testing and post-accident testing.
Oral fluid would need directly observation in all instances and DOT also seeks comment on whether oral fluid or urine should be mandated, or prohibited, for certain test reasons as well as comment on the content of the new oral fluid provisions, including whether it would be useful to address any additional differences between the urine and oral fluid testing procedures.
DOT also seeks comment on whether existing and/or new MROs should receive additional training specifically with respect to their role in oral fluid testing and, if so, what subjects it should cover.
Allow direct observation urine collections by any licensed or certified medical professional legally authorized to take part in a medical examination in the jurisdiction where the collection takes place.
The Proposal would also amend who may act as the observer in a directly observed urine collection. The proposed rule would retain the general requirement that the observer have the same gender as the employee, but make an exception for licensed or certified medical professionals or those who are legally authorized to take part in a medical examination in the jurisdiction where the collection takes place.
DOT seeks comment on whether there should be any limitations on the types of medical professionals who could perform this function. In addition, DOT is asking for comments on whether there are religious or other concerns that should be considered in the regulatory language proposed.
Allow MRO staff to contact pharmacies to verify a prescription that an employee provided.
DOT believes it would increase efficiency and assist MRO office workflow if MRO staff were able to make these inquiries to contact pharmacies to verify a prescription that an employee has cited as a potential legitimate medical explanation for a laboratory-confirmed positive test. The Department seeks comment on whether this change is advisable and what the estimated cost savings would be.
‘Un-cancel’ a test that was ‘cancelled’ by the MRO if circumstances dictate.
DOT is requesting comments on whether there are situations in which a test, once cancelled, should be “uncancelled” if circumstances dictate ( e.g., a test is cancelled because paperwork is missing or delayed, but the paperwork is later found and provided to the MRO). Or, alternatively, should a test, once cancelled, remain cancelled to ensure finality? DOT specifically seeks comment from MROs on the practicality of administering such a process, and from employers on the effect that an “uncancelled” test would have when administering their drug testing program.
Allow the use of options of official identification numbers issued by State or Federal authorities to be used instead of Social Security Numbers,
DOT is proposing to create a new definition “SSN or Employee No.” that will allow a collector, MRO, SAP, BAT, STT or other service agent or employer to utilize only the CDL number and State of issuance for FMCSA-regulated drivers tested under Part 382, and to allow the CDL number to be used as an option on tests conducted under the authority of the other DOT Agencies.
Allow Substance Abuse Professional (SAP) to conduct evaluations virtually.
To make remote evaluations or assessments a regular option for the SAP’s practice under Part 40, DOT is proposing amendments to several sections of the regulation. Consistent with guidance issued in the context of the COVID-19 public health emergency, this Proposal would give SAPs the option of choosing to conduct evaluations remotely in lieu of face-to-face meetings.
The SAP could do the evaluation either face-to-face or remotely. If the evaluation is to be done remotely, there would be three criteria that the process would need to meet, to ensure that the SAP can still objectively evaluate “non-verbals” and physical characteristics to a sufficient extent.
While DOT continues to believe that face-to-face interactions are the “gold standard” for the SAP evaluations, DOT also believes that the remote evaluation option may have considerable merit, seeks comment on the proposed approach, as well as on the specific technical parameters under which SAPs would perform remote virtual evaluations. DOT also welcomes comments regarding the experience of both SAP and employees under the COVID-19 guidance. DOT also seeks comment on whether remote virtual evaluations and assessments should be limited to certain circumstances, e.g., natural disasters, pandemic situations, and where there are few or no SAPs available.
