On May 2, 2023, the U.S. Department of Transportation (DOT) published a final rule amending its regulated industry drug testing program to allow for oral fluid testing.

Quick Hits

  • The DOT’s new final rule gives employers the option of using a urine or oral fluid test.
  • The rule requires employers to use oral fluid testing for transgender or nonbinary individuals and when a direct observation is required but a same-gender technician cannot be found.
  • The new rule takes effect on June 1, 2023.

The new rule will become effective on June 1, 2023, but employers will have to wait to implement oral fluid testing until the U.S. Department of Health and Human Services (HHS) certifies two laboratories capable of processing the tests. Currently, the HHS has yet to certify any laboratories.

What Is Oral Fluid Testing?

Oral fluid testing is a type of drug test that uses the donor’s saliva to test for controlled substances. These saliva-based tests offer a variety of advantages over other types of tests such as urine or hair follicle tests. For example, oral fluid collection is directly observed by a laboratory technician, making the sample less susceptible to adulteration or tampering. Additionally, oral fluid tests detect recent drug use better than other forms of tests given that drugs take time to metabolize and show in a donor’s urine or hair. With oral fluid testing, drugs can be detected in a donor’s saliva immediately after they are used.

There are also some disadvantages employers might want to consider when deciding whether to add oral fluid tests to their testing policies. For example, drugs do not remain in oral fluids as long as they do in urine or hair follicles, so the detection window is shorter with oral fluid testing. Also, oral fluid testing is a newer test, so it has not been subjected to the same legal scrutiny as urine or hair follicle testing.

Other Changes

The rule also changed the procedure for “opposite gender obervers” and “transgender or nonbinary employees.” The rule now states that for all direct observation collections involving transgender or nonbinary individuals, employers must conduct an oral fluid test. The rule also requires the use of oral fluid tests in situations when a direct observation test is required but a same-gender lab technician cannot be found.

What Does This Mean for Employers?

The new rule gives employers the option to choose either a urine test or an oral fluid test for all DOT-regulated drug tests, including preemployment, random, reasonable suspicion, post-accident, follow-up, or return-to-duty tests. Employers may want to work with their collection sites to create a standing order detailing what kind of test should be performed and when. For example, an employer may want to use urine tests for all return-to-duty tests and use oral fluid tests for any follow-up tests.

If employers choose to use oral fluid testing, they may want to update their current DOT drug testing policies to incorporate the new tests and the new procedures for direct observation tests.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor DOT and HHS for guidance regarding oral fluid testing and laboratory certification and will post updates on the Drug Testing blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.


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Ogletree Deakins understands that employers face complex and nuanced issues when implementing and enforcing drug and alcohol testing and substance abuse policies. Drawing on decades of experience advising and defending drug testing laboratories, and public and private employers across the country and internationally, our attorneys provide highly responsive legal service

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