By Yvette Farnsworth Baker, Esq., Senior Legal Consultant
By Jessica Polk, Senior Director of Marketing Services
Oral Fluid Testing and a New Direction for Drug Testing Policies
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The Department of Transportation (DOT) recently announced its guidelines for oral fluid drug testing and has set the workplace drug testing industry in a new direction. While these changes will primarily impact drug testing guidelines for DOT-mandated professions involving trucks, planes, and trains, etc., many state lawmakers, who look to the DOT guidelines for a road map, will be influenced by this decision over the coming years. Though oral fluid drug testing is legal in all but a few states, having the stamp of approval from the DOT will greatly impact employers’ drug testing policy decisions in the coming months and years.
For many companies the guidelines that would allow for oral fluid drug testing are currently determined by their state’s drug testing laws. This means that if your company is not mandated by DOT regulations or you hire non-DOT employees, you would most likely be able to use oral fluid drug testing as a viable option for your employees, if you choose to do so. No matter what, implementing drug testing in your workplace should always take into consideration what state laws say.
Restrictions on lab-based oral fluid testing:
There are very few state law restrictions on lab-based oral fluid testing, especially now that the federal guidelines include oral fluid. One state with some restrictions on oral fluid testing is Vermont. Vermont’s mandatory drug testing law refers to workplace drug testing as “urinalysis procedure,” and frequently mentions “urine samples” without mentioning any other sample types. While it does not explicitly prohibit other sample types, it may be problematic to read other sample types into the law with that language. Additionally, Vermont requires that a non-employee be the one to conduct sample collections from employees, though an employee is permitted to conduct collections of applicants. This does not prohibit oral fluid collections but would require employers to take the additional step of hiring outside collectors.
Hawaii is another state with an unclear state law regarding oral fluid testing. Hawaii’s mandatory drug testing law defines “specimen” as urine, blood, “or any other bodily substance that the department [of health] determines to be appropriate for substance abuse testing.” While oral fluid is not prohibited as a specimen, the state Department of Health has not published any guidelines on what qualifies as a bodily substance that is “appropriate for substance abuse testing.” It is easy to assume that oral fluid is an appropriate sample for testing; however, the Hawaii Department of Health has not made that determination clear.
Restrictions on point-of-collection testing:
Point-of-collection testing is more restricted across the country than lab-based testing. The states of Vermont and Minnesota, for example, prohibit point-of-collection testing in their mandatory laws, which apply to all employers in the state.
Several voluntary state laws prohibit use of a point-of-collection device for employers seeking the voluntary workers’ compensation premium discount. States with voluntary laws that prohibit point-of-collection testing include Alabama, Arkansas, Kentucky, and Ohio. However, point-of-collection testing in these states is allowed for testing outside of the voluntary program.
Other states’ policies allow point-of-collection testing only for pre-employment testing but do not allow it for testing employees. These include Maryland and North Carolina’s mandatory laws as well as Tennessee’s voluntary law.
Several states have laboratory licensing laws that restrict where chemical tests can be performed and by whom. These laws seem to restrict all drug testing to laboratory facilities. However, these laws do not specifically mention workplace drug testing, and often were not intended to apply to workplace testing. In such cases, it is unclear whether point-of-collection testing is permissible in the workplace or not. States with laboratory licensing laws like these include California, Kansas, Nevada, and New York.
Conclusion:
Oral fluid testing will certainly be spiking in use in the upcoming months and years, and for good reason. Employers can absolutely benefit from the advantages of oral fluid testing. There are very few barriers to oral fluid samples in state law, particularly lab-based oral fluid testing, and the federal government has now opened the door to oral fluid testing for federally regulated employers.
For more on policy writing and review, consult with a policy expert at Current Consulting Group.
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