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The U.S. Department of Health and Human Services (HHS) is being urged by public transit groups to quickly build out a system that would allow the use of saliva tests for marijuana and other drugs—a method proponents say will be less intrusive than typical urine-based screenings and more indicative of recent consumption so that people aren’t punished for smoking a joint as much as a month prior to testing.
The Department of Transportation (DOT) adopted a rule change earlier this year to allow testing of oral fluid as an alternative to urine drug testing for truckers, commercial drivers, pilots and other federally regulated transit workers. But HHS has yet to certify testing laboratories necessary to begin saliva screening or approve a suitable device to collect saliva in the field.
Late last month, the American Public Transportation Association (APTA) sent a letter to HHS Secretary Xavier Becerra urging the department to certify testing labs. Others, including a transit advisory board in Albuquerque, New Mexico, have also joined the call.
“Although DOT has authorized oral fluid testing under its drug testing program, it cannot be implemented until HHS certifies at least two laboratories to conduct oral fluid drug testing,” wrote APTA president and CEO Paul P. Skoutelas.
Earlier this month, HHS acknowledged in a Federal Register notice that that “at this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.”
The Food and Drug Administration, a division of the HHS, will also need to approve at least one oral fluid collection device, APTA said, in order “to ensure the oral fluid testing ‘system’ (collection device and laboratory) is implemented as specified” by the DOT rule.
“Under DOT’s final rule,” the letter notes, “an oral fluid collection device will not be permitted to be used unless HHS has approved a certified laboratory to deploy a particular device.”
Among the benefits that oral fluid drug testing provide, wrote APTA, which represents public and private organizations that employ nearly 430,000 people, are that they offer a “less invasive specimen collection option for regulated employers and covered employees” that’s gender-neutral and eliminates the need for a secured bathroom.
The letter also says saliva-based drug testing allows regulated employers “to identify more recent use of a substance, which is particularly important in post-accident and reasonable suspicion testing situations.” Further, the fact the collection process is easily observed “may reduce a donor’s ability to tamper with the specimen, or otherwise thwart the testing process.”
As DOT said in adopting its new rule earlier this year, “Oral fluid testing can detect the recent use of some drugs, including marijuana and cocaine, while urine drug testing has a longer window of detection.”
A similar set of benefits was highlighted recently by the Albuquerque city Transit Advisory Board, including that the oral fluid collecting process is neutral regarding the genders of both the tester and the employee being tested. Saliva testing also “identifies recent cannabis use (5-72 hours prior), which is especially important after an accident,” compared to urine testing, which “identifies use in the last 30 days.”
Neither test definitively indicates current impairment, however.
At its meeting last month, the Transit Advisory Board adopted a resolution asking New Mexico’s congressional representatives to urge HHS to certify at least two labs for oral fluid testing. It also urged the city of Albuquerque to update its policies to include oral testing and to “comply with federal rules requiring oral fluid testing be used for direct observational testing for transgender and non-binary employees.”
The board also sent a letter to Becerra, the HHS secretary, asking him to expedite the laboratory certification process “to help address the shortage of bus drivers in the country and enable our agency to retain and hire more operators and mechanics.”
The letter applauds the new DOT rule and notes that saliva testing “detects cannabis use in the last 72 hours or less.”
“While this is still not a sobriety test,” the board said, “it is much closer and much fairer than the Urine Test which can detect cannabis use for as much as 30 days.”
Nearly half of all states have legalized adult-use cannabis, and most allow medical marijuana. “We must continue to ensure that operators are not impaired while they are in charge of a bus or train, while accommodating this legal and cultural shift.”
Meanwhile, DOT also proposed guidance last year warning commercial drivers who use CBD products that they are doing so “at their own risk.” The proposed handbook update is meant to advise medical examiners as they carry out physical exams for commercial drivers whose jobs require interstate travel.
The handbook would direct examiners to an earlier DOT notice stipulating that the department “requires testing for marijuana and not CBD” and provide other information about cannabis-related policy and compliance rules.
A newsletter from DOT’s Federal Transit Administration (FTA) that was published in July 2022 included two sections on cannabis issues: one that again reminded employees that they’re barred from using marijuana and another that similarly warned that CBD products remain unregulated and could contain THC levels that are detectable in a drug test.
In a letter sent to Transportation Secretary Pete Buttigieg last year, Rep. Earl Blumenauer (D-OR) argued that DOT’s overall cannabis testing policies are unnecessarily costing people their jobs and contributing to supply chain issues. He urged a review and administrative reform of the guidelines.
A top Wells Fargo analyst said last year that there’s one main reason for rising costs and worker shortages in the transportation sector: federal marijuana criminalization and resulting drug testing mandates that persist even as more states enact legalization.
To those points, DOT data released in January showed that tens of thousands of commercial truckers have tested positive for marijuana as part of federally mandated screenings. And a significant portion of those truckers have declined to return to work, contributing to a labor shortage.
Last month a safety-sensitive worker at Alaska Airlines who was fired for a positive THC test was reinstated to his job by an arbitrator after he claimed he did not intend to consume cannabis and wasn’t sure how it occurred. The airline has since challenged that result.
In a separate advisory last month, officials within HHS clarified that state-legal use of medical marijuana is no excuse for a positive THC test under new federal workforce guidelines.
Photo courtesy of Mike Latimer.
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