Results are in on a plan to allow commercial motor carriers (and others) the option of using oral fluids instead of urine to test for drugs. Based on industry comments, trucking is generally in favor — with some caveats.
The U.S. Department of Transportation published the 119-page proposed rule on Feb. 28, giving the public 30 days (plus a 30-day extension) to respond. DOT received over 400 comments by the April 29 deadline, including responses from trucking associations, trucking companies and owner-operators.
Here’s what trucking is saying:
American Trucking Associations
ATA supports most of the provisions in the proposed rulemaking. It agrees with DOT’s reasoning that adding oral fluid as an option would provide cost benefits as well give employers more flexibility to determine which test method is best suited for their drug testing program. It would also help clamp down on employees’ ability to subvert a urine test with a falsified sample, ATA asserted.
“Additionally, unlike urine, the collection of oral fluid specimens can be conducted at any location or facility,” ATA stated. “If an employer does not currently self-collect because they do not have a facility qualified for urine collections, the addition of oral fluid to the DOT testing program would make self-collections a possibility for them.”
ATA also argued that the convenience of collecting an oral fluid specimen has the potential to save drivers several hours of “on-duty” time when they are required to complete a random drug test. “For example, the oral fluid specimen collection for a random test could be completed at the driver’s dispatching location instead of at a drug testing facility, which might be many miles away.”
However, ATA did not support reducing the specimen retention requirements from one year to 90 days, as DOT proposes. The association pointed out that drivers involved in crashes are required (in some circumstances) to submit to post-accident drug and alcohol tests. “Regardless of the results of this test, there is a possibility that the individual driver and their company might face legal action,” ATA reasoned. “Due to the nature of the legal process, however, it might be several months or a year before the defendant is notified of the case. In these instances, and in the event that a court order requires re-testing, it is imperative that all relevant evidence remains available.”
Owner-Operator Independent Drivers Association
OOIDA agreed with DOT that collecting an oral fluid specimen could require less time than collecting a urine specimen and could take place in more convenient locations, providing drivers with more flexibility and cost savings.
“The addition of oral fluid testing as an alternative to urine testing could provide more appointment options for drivers and help alleviate recent staffing and supply chain challenges,” OOIDA noted.
But OOIDA also asserted that if DOT finalizes an oral fluid testing rule, it must protect personal privacy when adopting testing guidelines.
“In recent years, the privacy rights of truckers have been obstructed by electronic logging devices that track their whereabouts, the growth of automated license plate readers that unfairly target drivers for enforcement, and a lack of cybersecurity protection from DOT’s National Registry of Certified Medical Examiners,” OOIDA stated. “Any new drug testing guidelines or regulations must prioritize privacy concerns of professional truckers.”
Truckload Carriers Association
In supporting the proposal, TCA agreed with DOT’s contention that relying solely on urine testing leaves more potential for cheating on tests — either by altering or substituting test samples — because of privacy rights that prohibit observing specimen collection.
Oral fluid testing, on the other hand, “provides a non-invasive, directly observable method which reduces the likelihood of cheating,” TCA stated.
TCA used much of its response, however, to encourage regulators to include hair testing as an option as well.
“The purpose of the system is to allow employers to know if a prospective driver has previously failed a drug test, but if hair testing remains unconsidered, the program information will not accurately flag illicit drug users who failed a hair test but were able to pass a urine or oral fluid test.”
The Trucking Alliance
Also a major supporter of hair testing for drugs in the trucking industry, the Trucking Alliance, which lobbies for safety reforms on behalf of a group of major trucking companies, focused its comments on the unreliability of urine testing. It cited a study it commissioned revealing that 90% of drivers who failed a hair test actually passed their urinalysis.
“The same results can be expected with an oral fluid drug test,” the group claimed. “Most habitual illegal drug users will pass either drug test because both testing methods have a short detection window for detecting harder drugs like cocaine, heroin, and other opioids.”
Despite that assertion, it still supports DOT’s oral fluid testing proposal because it maintains it is more effective than urine testing in certain situations.
“An oral fluid test is much less intrusive. An oral fluid test will make it more difficult for an employee to adulterate or substitute a specimen in the drug test. An oral fluid test is superior for reasonable suspicion testing purposes, as defined in FMCSA regulations. An oral fluid test can be administered at the scene of a serious truck accident for post-accident purposes.”
Werner [NASDAQ: WERN] — a member of both ATA and TCA — filed separate comments highlighting the benefits of hair testing, which it uses for both preemployment and random drug testing, over oral fluid testing.
“Oral fluid testing has a limited window of detection and does not give the employer a full picture of an applicant’s drug history,” the company stated.
It acknowledged, however, that oral fluid testing can be useful in limited circumstances, including at an accident site.
“Studies show that oral fluid testing can be conducted quickly and under observation, with manageable expense in a variety of physical environments. Although oral fluid testing cannot replace urine or hair follicle testing, Werner believes it can supplement a company’s drug testing program under the right circumstances.”
The Teamsters generally supported the proposal, noting that oral fluid testing provides direct observation of the specimen collection, “which should eliminate any concerns about efforts to defeat the testing process.”
In responding to DOT’s request for feedback on whether employers would train their own company personnel to become qualified collectors for oral fluid testing purposes, the union urged DOT to require employers to use external professionals to collect specimens.
“It would be prudent to prohibit motor carrier employers from allowing a supervisor to collect oral fluid specimens of an employee that he/she supervises,” the union said.
Responses from individual truckers varied from support to outright opposition to the proposal.
“It is a basic assault on privacy and civil liberties,” said one. “It is completely unnecessary, and without merit. This is a backdoor attempt at taking DNA samples, please don’t try to deceive us like this. You insult our intelligence by doing so.”
Another argued that DOT already has strict testing protocols “and now you want to upset all that by introducing more regulations that are less stringent all because of an unknown level of cheating on urine tests? If cheating is that big of a deal and has that big of an effect on things, (i.e. ‘safety’) then you should address how the testing is being conducted by the testing sites and their people.”
But one individual brought up another benefit of oral testing: It would allow those who suffer from paruresis — or “shy bladder” syndrome — to avoid being terminated from their jobs for not being able to produce a urine sample.
“I would consider going back into truck driving if the oral fluids testing was an option,” the commenter stated. “I don’t want to be sitting there being humiliated for three hours drinking 40 ounces of water because I can’t urinate on demand.”
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