Present and Future Opportunities
Case law addressing alternative drug testing specimens is not well developed at this point.
ABOUT a year ago, on April 13, 2004, the U.S. Department of Health and Human Services' Substance Abuse & Mental Health Services Administration (SAMHSA) published a Notice of Proposed Rulemaking proposing revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Although the stated purpose of the proposal was to "establish scientific and technical guidelines for the testing of hair, sweat, and oral fluid specimens in addition to urine specimens; scientific and technical guidelines for using on-site tests to test urine and oral fluid at the collections site; requirements for the certification of instrumented and initially test facilities; and added standards for collectors, on-site testers, and medical review officers. . . ," the Notice of Proposed Rulemaking actually raised numerous questions. It essentially passed the "hot potato" to the scientific community and the drug and alcohol testing industry.
Drug and alcohol testing industry experts and government representatives have addressed the issues raised in the notice publicly at many industry meetings since the publication of the notice. In spite of all of the dialogue and the time that has passed, it is not possible to predict when the proposed rulemaking will be finalized or when the Department of Transportation will publish its perspective on alternative methodologies. It is very unlikely either will occur any time soon.
The Regulatory Quagmire
In understanding the impact of the Notice of Proposed Rulemaking on the drug and alcohol testing industry, it is important to note that the proposed rulemaking only applied to federal government employees and was optional to the various federal government agencies. The extent to which DOT is bound by the actions of the Department of Health and Human Services is highly debatable.
49 CFR Part 40, first published in 1988, incorporated the substance of the original DHSS Guidelines adapting the DHHS provisions to the transportation workplace. In 1991, Congress enacted the Omnibus Transportation Employee Testing Act, which recognized the close relationship between the DHHS Guidelines and Part 40. The statute requires DOT to "incorporate" the DHHS guidelines and amendments to them into the DOT testing procedures, while leaving DOT sufficient authority to tailor its own program. Because of this statutorily recognized relationship between the DHSS Guidelines and Part 40, any DHHS final rule resulting from the current Notice of Proposed Rulemaking, while not directly regulating transportation industry employers, must and is being considered by DOT in the context of potential future revisions to Part 40.
The practical interpretation of what "incorporate" requires DOT to do is the crux of debate over what the DOT will or must do. Although there have been some differences between the federal procedural guidelines (DHHS) for federal employees (splits, retest procedures, etc.) and the DOT procedural guidelines (49 CFR Part 40), the type of specimens permitted is a fundamental and major procedural consideration that goes way beyond the differences between the two sets of guidelines in the past. The ultimate resolution of this debate will likely be the result of political and market pressures. However, at the end of a very long day, DOT may not have any choice but to bend to those political and market pressures and revise its regulations to permit some, if not all, of whatever the DHHS ultimately permits.
It is also likely that what the government ultimately does may have only a minimal impact on what private sector/non-mandated employers do with respect to moving forward to incorporate the alternatives currently available in their programs. This is because there was significant interest and activity in the area of alternative methodologies on the part of non-mandated employers with drug-free workplace testing programs because of cost, convenience, and program improvement reasons, long before the federal government spoke by proposed regulation. In fact, over the past three years, even without government intervention or absolute scientific blessing, the private sector has been moving forward to maximize the various technologies as they have become available in the marketplace.
Although a number of states mention following federal guidelines in some form or fashion in their drug testing statutes, many more permit some or all of the alternative methodologies or specimens currently in the marketplace, with the exception of sweat testing. The front-running alternatives are on-site/point of collection (POC) urine testing, hair testing, and oral fluids/saliva POC or lab-based testing.
Alternative Testing in the Workplace
Employers need to ask themselves when and where they can use alternative specimens and why they want to do so. The "when can you test" question is dependant on 1) state and federal law, regulations, and case law considerations; 2) individual methodology and product considerations; and 3) employer program objectives and policy considerations.
This article originally appeared in the August 2005 issue of Occupational Health & Safety.