By Bill Current and Katherine Miller
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The addition of oral fluid as an approved specimen as part of the Substance Abuse and Mental Health Services Administration’s (SAMHSA’s) mandatory guidelines has changed more than the specimens that can be used in federal drug testing. While many states have drug and alcohol testing laws that regulate how drug testing must be conducted in their respective state, many states either require compliance with or simply defer to the SAMHSA guidelines and/or the Department of Transportation (DOT) regulations.
DOT signaled before the COVID-19 pandemic hit that it was in the process of developing regulations for lab-based oral fluid testing. Though delayed by the pandemic, DOT will eventually complete that project, and when they do it will, perhaps, have an even greater impact on state laws than SAMHSA’s oral fluid guidelines do.
This much we know: lab-based oral fluid testing is legal in 47 states. The three states that do not allow it—Maine, Vermont and Hawaii—likely will modify their regulations now that the federal government has endorsed lab-based oral fluid testing. Additionally, with the legalization of marijuana in nearly 40 states, there is growing pressure on employers to show proof of impairment in addition to a positive marijuana drug test result before taking adverse employment action. Oral fluid testing is the only recent-use detection drug testing method approved by the federal government, thus giving employers a much higher level of legal defensibility than any other drug testing method, especially those not approved by SAMHSA.
Why Are the SAMHSA Guidelines Important?
So, if DOT has not yet issued oral fluid testing guidelines, do the new guidelines matter for employers not mandated to drug test under the DOT regulations? The answer is a resounding—YES! Employers have always had options for how to conduct drug testing, but for 30+ years there has only been one method, lab-based urine testing, approved by the federal government. That is no longer true.
SAMHSA’s oral fluid guidelines do three things that every employer should understand and feel confident about:
- The SAMHSA guidelines elevate the credibility of lab-based oral fluid testing to the same level as lab-based urine testing. For years, many companies have relied on oral fluid testing, though some employers may have hesitated because there were no federal guidelines to provide a gold standard to follow. Of course, that is no longer the case. Employers testing under their own company authority in compliance with state laws can implement an oral fluid testing program now utilizing the SAMHSA guidelines and enjoy the same level of legal defensibility as companies that follow SAMHSA’s guidelines for lab-based urine testing.
- When issuing its final guidelines for lab-based oral fluid testing, SAMHSA listed numerous reasons for its decision, including that oral fluid tests are easier to collect, almost impossible to adulterate, and that the science behind it is sound in every possible way. “The scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been broadly established and the advances in the use of oral fluid in detecting drugs have made it possible for this alternative specimen to be used… with the same level of confidence that has been applied to the use of urine.”[i]
- Drugs are detectable in oral fluid almost immediately after usage because it detects the parent drug and not just a metabolite of a drug, which takes several hours to become detectable in urine. In the age of legal marijuana, SAMHSA’s endorsement of lab-based oral fluid testing gives employers an accurate, easy-to-use alternative testing method that is both employer- and employee-friendly.
Impact on State Laws
It is still essential for employers to understand if applicable state laws are impacted by the addition of oral fluid to SAMHSA’s mandatory guidelines. Following are just four examples of state drug testing laws that are affected in various ways by the SAMHSA regulations:
Kentucky has a voluntary drug and alcohol testing law, meaning that employers can comply, but are not required to do so. Employers that choose to comply with the voluntary law are eligible for a 5 percent credit on their workers’ compensation premium. Employers that choose not to participate in the voluntary program were already free to use oral fluid in the past, however, employers that chose to comply with the law have historically been unable to do so.
Kentucky’s law states;
“’Drug test’ or ‘test’ means a chemical, biological, or physical instrumental analysis administered by a qualified laboratory, for the purpose of determining the presence or absence of a drug or its metabolites or alcohol pursuant to standards, procedures, and protocols established by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA).” (Emphasis added.) 803 KAR 25:280(1)(5)
Kentucky’s law goes on to state that urine is the appropriate testing specimen for drugs, and breath is the appropriate specimen for alcohol. The addition of oral fluid to SAMHSA’s mandatory guidelines, in theory, would permit employers in Kentucky to test via oral fluid and still comply with the voluntary law.
Compliance with Maine’s mandatory law is required for all private employers in the state. Historically, Maine has only permitted oral fluid when used as a non-instrumented, rapid result, instant test. The addition of oral fluid to SAMHSA’s mandatory guidelines has changed this. Maine’s law states:
“Screening test’ means an initial substance use test performed through the use of immunoassay technology or a federally recognized substance use test, or a test technology of similar or greater accuracy and reliability approved by the Department of Health and Human Services…” (emphasis added) Maine Rev. Stat. 26-7-3A-682 7 A
As a subsidiary of the Department of Health and Human Services (HHS), SAMHSA’s addition of oral fluid effectively permits lab-based oral fluid testing for employers in the state. Maine’s laws contain extremely specific cut-off levels, and, as such, employers should review the law carefully prior to implementing an oral fluid testing program. Additionally, each drug-free workplace program must be approved by the Maine Department of Labor prior to implementation.
Puerto Rico’s mandatory law must be followed by all private employers in the territory. The law requires compliance with SAMHSA regulations in terms of specimens, however, the law is very specific when it comes to when alternative testing specimens can be used. The law states:
“The drug tests shall be made through a urine sample, except for those circumstances in which it is not possible to take the same and shall be administered in accordance with scientifically accepted analytical and sample custody chain procedures, so that the privacy of the employee may be protected to the maximum, and pursuant to the Mandatory Guidelines for Federal Workplace Drug Testing Program.” (Emphasis added.) Laws of Puerto Rico 29-8-161b(b)(8)(d)
Although compliance with SAMHSA guidelines is required, which would technically permit the use of oral fluid as an approved testing specimen, the law only specifically mentions urine making it the preferred specimen for drug tests. Check with local authorities in Puerto Rico for clarification.
Employers that choose to comply with Tennessee’s voluntary law qualify for a 5 percent discount on their workers’ compensation premiums. Under the voluntary law, employers are required to comply with SAMHSA’s mandatory guidelines, meaning that employers in the state are impacted by this update. Tennessee’s law states:
“If an employee is unable to provide a urine specimen when requested, the United States Department of Health and Human Services mandatory guidelines on fluid administration and for alternative oral specimen collection shall be followed.” (Emphasis added.) Tenn. Comp. Rules & Reg. 0800-02-12-.06(4)
Tennessee employers should check with local workers’ compensation officials for clarification.
It took more than 30 years for the federal government to endorse an alternative testing method, lab-based oral fluid. And it may be many years before another testing method receives SAMHSA’s approval, though the agency issued a Notice of Proposed Rulemaking (NPRM) in 2020 for hair testing. For companies not held back by a state law or not mandated by the DOT regulations, lab-based oral fluid testing has always been an option, but the new SAMHSA guidelines make it a legally defensible alternative to other testing methods.
The best advice is to carefully review all applicable state laws to ensure complete compliance when implementing any testing method.
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[i] SAMHSA “The Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG)”