Is Oral Fluid Drug Testing Legal Now?

Is Oral Fluid Drug Testing Legal Now?

– Guest Blog Writer: Bill Current
– Bill Current is the President and Founder of the Current Consulting Group, LLC
– Discussion of the legality of lab based oral fluid testing, is it legal, has DOT approved oral fluid testing?

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

DOT oral fluid drug testing is now allowed under DOT regulations, 49 CFR Part 40; this is effective June 1, 2023. See DOT Oral Fluid Drug Testing, Collections & Mocks

Is oral fluid drug testing legal now? The short answer is yes, but there’s more to the story.

For 30+ years, lab-based urine drug testing has been the preferred method of workplace drug testing by the vast majority of employers who conduct testing and the only method permitted as part of the U.S. Department of Transportation’s (DOT) regulations. Urine testing has successfully passed the test of time. It has proven to be scientifically accurate and legally defensible (all 50 states permit its use for workplace programs and some states actually require it for certain industries and as part of local incentive programs).

However, on October 25, 2019, the Substance Abuse and Mental Health Services Administration (SAMHSA), the federal agency that oversees workplace drug testing, published guidelines for lab-based oral fluid drug testing (OFMG). These guidelines make it possible for federal agencies to either switch to oral fluid testing or combine it with their existing urine testing program, using the testing method that best aligns with each testing circumstance. The OFMG does not apply to any other federal government-related drug testing regulations such as those mandated by DOT or the Nuclear Regulatory Commission (NRC). While DOT has already publicly signaled that it will begin the process that will eventually allow oral fluid testing, the OFMG only applies to federal workplaces at this time.

State Laws and Oral Fluid

Outside of federally mandated drug testing regulations, lab-based oral fluid testing has been permitted for many years in all but three states (Hawaii, Maine, and Vermont). However, there are 17 states that only permit the use of lab-based urine testing by private-sector employers in certain industries or with certain government contracts or of companies participating in state-sponsored incentive programs (e.g., workers’ compensation premium discount programs). Outside of specified industries and incentive programs in those states, employers have been free to choose lab-based oral fluid testing all along.

Generally speaking, oral fluid drug testing is legal. Employers are well-advised, however, to carefully review the drug testing laws and other laws that can affect workplace drug testing in each applicable state. Remember these simple guidelines when it comes to state drug testing laws:

  1. Federal regulations trump state drug testing laws (e.g., DOT-covered employers may only conduct urine drug testing in compliance with the DOT regulations at this time).
  2. Employers must comply with all applicable state laws, which means that if a company has business operations in more than one state, it must comply with each state’s law.
  3. Lab-based urine drug testing is permitted in all 50 states and lab-based oral fluid drug testing is permitted in 47 states.
  4. Always check State laws for non-DOT drug testing programs
  5. DOT regulations effective June, 1 2023 will allow oral fluid drug testing as an option for all transportation regulated industries.

Oral Fluids and Marijuana

Some legal marijuana laws contain strong workplace-related language that typically prohibits employers from overtly discriminating against legal users of marijuana or taking adverse employment action against employees who test positive for marijuana. However, these marijuana laws do not dictate how drug testing can be conducted. Oral fluid drug testing with its comparatively shorter window of detection and ability to detect recent drug use may be considered a more compatible testing method in marijuana-friendly states.

When it comes to choosing a drug testing method, it may not be a matter of one or the other, but rather how to realize the advantages of each method—urine, oral fluid, and hair—to maximize your return on investment from drug testing.

© 2010-2021 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder are required.

Bill Current
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