A proposed rulemaking to make headlines recently was the DOT Office of Drug and Alcohol Policy and Compliance’s (ODAPC) proposal to approve the use of oral fluids to fulfill drug testing requirements. To many, the move came as a surprise because so much of the industry’s attention has been around hair testing recently. So, why oral fluids? Why now?
The answer will comfort only government watchers like STC and will likely frustrate many who see hair testing as a critical tool to safeguarding America’s highways. You see, while the DOT knows a lot about transportation, it has little scientific expertise in drug testing. For this, it must rely on the Department of Health and Human Services (HHS) to write the drug testing guidelines DOT can then apply to the transportation modes, over which HHS has no authority.
For its part, HHS has been investigating possible alternative drug testing specimens, including hair, oral fluids, and sweat, for a long time. Eventually, it concluded that if it were to create guidelines for these specimens, distinct rules would be needed for because each method requires fundamentally different collection and testing procedures. In 2015, it decided to start with oral fluids because it was less controversial than the others, most notably hair (and apparently, walking and chewing gum at the same time is difficult).
So, while trucking has been blazing a path forward on hair testing in pursuit of weeding out lifestyle drug users (puns intended), HHS has been reaching for low-hanging fruit at a sloth’s pace. In 2019, four years after publishing its proposal, HHS finally finished its oral fluid guidelines, allowing ODAPC to begin work on its transportation-related rules. Last year, HHS published its proposed hair testing guidelines, which were panned as unworkable by much of the trucking industry. If hair testing follows the same path as oral fluids, trucking shouldn’t expect to see a proposal from ODAPC until 2028, with a final rule coming much later.