Are you curious about what’s up-and-coming with drug testing? We are too. We met with Scott Mogensen, the Director of Drug & Alcohol Compliance here at Foley to find out. Scott joined the Foley team in 2005 and has plenty of industry experience. Staying on top of rulemaking proposals, recent announcements, and regulation updates, he’s the compliance guru who’s always in the know.
Here’s what we covered in our conversation:
Oral Fluid Testing
Hair Testing
Drug Test Refusal Appeals Process
Additional Electronic Testing Forms
There’s always something new to talk about in the world of federally mandated drug testing. Scott gave us numerous helpful insights into what we can expect to see in the future.
Oral Fluid Testing
The first hot topic of our conversation was the DOT’s proposed rulemaking that was announced in the Federal Registrar on Feb 28th. If you haven’t heard about it yet, take a glance at our article, New Proposal for Oral Fluid Testing for more details.
“Saliva testing has been in the works for a while,” Scott said. “Most carriers have been asking and waiting for oral fluid testing. The DOT must use Department of Health-approved testing methods, but they established a rulemaking for proposed oral fluid testing in 2020 to address the suggestion.”
Scott believes eventually, it’s likely that oral fluid will replace urine as the most-performed testing specimen because of the clear advantages:
- Easy supervision
Observed tests nearly eliminate the ability to replace a specimen and “cheat” to get a passing result. Supervised mouth swabs also do not have the same privacy implications as observed urine tests. It’s easy to administer a face-to-face test anywhere and at any time.
- Time saved
With urine testing, an employee needs to take time out of their day to drive to a lab, fill out paperwork, and even with advanced notice, they cannot always produce a specimen. Hours of time can be lost from an employee’s productivity as a result. Employers can self-collect oral fluid and samples are readily available, avoiding the issues mentioned.
- Freedom of choice
Employers would not have to depend on labs for the administrative portion of saliva testing. In-house professionals who have been professionally trained can perform the test whenever it fits into their daily schedule and workload. They can also use oral fluid or urine testing based on the circumstances requiring the need for a test.
Hair Testing
Some trucking companies have submitted proposals for this alternative testing method, Scott pointed out. He also stated, “Studies have found that hair testing has a much higher likelihood of finding usage in comparison to urine testing. The detection period is 90 days to 6 months, making it more of a lifestyle test.” Opting for hair testing would allow carriers to see if employees regularly use drugs, as opposed to the 5–10-day detection time of urine tests.
Scott mentioned one drawback of hair testing: the detection window starts around 30 days after use, due to hair growth speed. It’s not ideal for random, post-accident, or return-to-duty drug testing.
Hair testing is currently used for non-federal compliance companies, but the Department of Health and Human Services (DHHS) and the Substance Abuse and Mental Health Services Administration (SAMHSA) need to regulate how the testing method would be used before DOT can put it in place for federally mandated companies.
Hair follicle drug testing was approved for pre-employment and random drug tests by Congress in 2015, in which they referred to it as “an acceptable alternative to urine testing.” In 2020, the SAMHSA also issued guidelines for hair testing; however, there was industry backlash to the proposal that suggested it be paired with urine testing as a “back-up” method if the hair follicle test came back positive.
The DHHS has confirmed that they are still working on the proposed rule, but neither a timeline nor additional updates have been released.
More testing methodologies mean added flexibility for employers and better safety for the general public. The DOT has recently reported an unfortunate uptick in fatal accidents. The top reason for them? Impaired drivers who are under the influence. The sooner and easier it is to get these drivers off the road with streamlined drug testing processes, the safer everyone will be.
Read: Highway Fatalities Increased in 2021
Drug Test Refusal Appeals Process
As for what is in the pipeline of rulemaking, Scott shared there is an appeals process for employees facing refusals for drug tests that were unfairly deemed by their employers. The DOT is looking to create a process where an employee can provide evidence that their employer is being unreasonable with their determination. The plan is to provide the employee with some sort of recourse to avoid this mark on their record, which can affect them for years.
Right now, if an employee refuses a drug test, the employer is required by DOT regulations to enter that as a violation into the FMCSA Clearinghouse. Refusing to take a drug test has the same consequences as failing a DOT drug test as well:
- The employee is removed from safety-sensitive duties
- The employer determines whether their employment is terminated in accordance with the company’s policy
- The employee may not resume their regular job responsibilities until they have completed the DOT Return-to-Duty process (RTD) with a qualified DOT Substance Abuse Professional (SAP)
Even though it is only in the pre-rule stage, the appeals process would aid employees in need of support during unfair refusal rulings.
Additional Electronic Testing Forms
Using electronic Custody and Control Forms (eCCFs) has clear benefits, and Scott informed us that more electronic forms may soon be available for other aspects of drug testing. Today, only eCCFs are DOT-approved for use – other forms must be completed on paper with wet signatures – which can be burdensome.
The transfer of alcohol test results or affidavits that need to go back and forth between laboratories may also soon be electronic. This proposal is still in a pre-rule state for now, but we will keep you informed if anything changes.
Scott’s expertise in the drug and alcohol testing industry helps keep Foley on top of recent updates. Make sure to check back with us to stay up to date on new compliance regulations or rulemakings. And as always, if you need support with DOT compliance screening, get in touch with us!
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