If you have been waiting for news on the introduction of oral fluid drug testing into the Department of Transportation, this article is not good news.
Oral fluid testing
In May 2023, the U.S. Department of Transportation announced amendments to its drug testing programs that would allow for oral fluid collection as a means of testing. Despite the new regulations going into effect in June of that year, Health and Human Services still needed to certify laboratories to conduct oral fluid drug testing before employers could begin exercising the new option.
In fact, the agency needs to certify at least two laboratories before the collection method can be used – one to serve as a primary lab and a second to serve as a split-specimen laboratory. According to the most recent list of certified laboratories, published in September 2025, the agency has yet to certify a single lab to conduct oral fluid testing.
The slow crawl when it comes to certifying labs has been just one of the issues the DOT has faced when it comes to rolling out oral fluid testing.
The department said the implementation has also been slowed by “unforeseen circumstances rendering it impossible to comply with requirements” for training specimen collectors.
Creating another bump in the road was language in the May 2023 final rule that requires an oral fluid test to be conducted when an observed collection is required. Of course, a person would have to go to a certified lab to have this done – something that, as mentioned, is not yet possible.
Some instances that would require an observed collection include if the original sample were determined to be invalid without adequate medical explanation or if the test was for a return to duty.
The supplemental notice of proposed rulemaking expected to publish this fall aims to correct this factual impossibility. The proposal would provide interim provisions that would allow for a directly observed urine test to be conducted in instances where an oral fluid test is required.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
