More Than A Year After Feds OK’d Saliva Drug Tests For Truckers And Pilots, They Have Yet To Certify A Single Testing Lab

Nearly a year and a half after the U.S. Department of Transportation (DOT) adopted a rule change allowing the use of saliva as an alternative to urine drug testing of commercial truckers, pilots and transit workers, federal officials have yet to set up the infrastructure necessary to allow the new testing procedure to be used.

Proponents of the change, which took effect in June 2023, had welcomed the use of oral fluid as a less-intrusive way of testing for substances than urine-based screening—as well as a method that’s more indicative of recent use of marijuana and other drugs, which they say will reduce positive screens for use that occurred days or weeks earlier.

The problem is that so far, no testing laboratories have been certified by the Department of Health and Human Services (HHS) to actually test saliva samples.

“Because no oral fluid laboratories have been certified, it is not yet possible to comply with this provision,” DOT said in a notice in the Federal Register earlier this month.

Saliva testing was specifically approved as an option for screenings that were required to be “directly observed” by a testing administrator. Rather than urinate in front of another person, workers would only need to provide a saliva sample.

But because those saliva samples still can’t be properly tested, urine tests will continue to be used even in cases where direct observation is required.

Preparations for the switch to saliva-based testing nevertheless appear to be moving forward, albeit slowly.

At a regulatory update meeting of the Substance Abuse and Mental Health Services Administration’s (SAMHSA) Drug Testing Advisory Board earlier this month, officials said they’d received the first application from a laboratory to conduct oral fluid testing. That’s according to comments from Jay Grimes, director of federal affairs at the Owner–Operator Independent Drivers Association (OOIDA), to the organization’s media arm, Land Line.

There’s still no available timeline on the expected approval of that application however, the publication reported.

Officials already came under fire nearly more than a year ago for having failed to certify any testing labs capable of screening saliva specimens. In October 2023, 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, 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,” APTA president and CEO Paul P. Skoutelas wrote at the time.

The advocacy group NORML has described saliva testing as preferable to urine testing, though it asserts that neither the presence of THC nor its metabolites are necessarily evidence of impairment.

“While oral swab tests do not necessarily correlate with impairment from cannabis, they are a better predictor of recent use than are urine tests, which can pick up inactive THC metabolites days or weeks after use,” Ellen Komp, deputy director for NORML’s California chapter, said last year when the new testing rule was approved. “This long-awaited move by DOT should help with the country’s supply-chain issues, while advancing employment rights for legal and responsible cannabis users without jeopardizing roadside safety.”

NORML said in a blog post last week that since 2020, almost 140,000 truckers have tested positive for cannabis exposure.

“Those who fail their test are required to enter a ‘return to work’ program, which includes passing a drug test, to have their license reinstated,” the group noted. “However, only about one-quarter of those with drug test failures have done so, resulting in an industry-wide labor shortage.”

Separately, the U.S. Supreme Court heard oral arguments earlier this year in the case of a trucker who sued a cannabis company after he was fired over a positive THC test that he said was caused by consuming a hemp-derived CBD product.

In a separate case that was settled in January, the Drug Enforcement Administration (DEA) rehired and is providing back pay to a special agent who was fired after testing positive for THC that he attributed to CBD he was taking as an opioid alternative for chronic pain, with the agency reaching an agreement in a lawsuit challenging the termination.

In July, meanwhile, the National Transportation Safety Board (NTSB) warned that marijuana rescheduling could create a “blind spot” with respect to drug testing of federally regulated workers in safety-sensitive positions—despite earlier assurances from U.S. Transportation Secretary Pete Buttigieg that the cannabis rescheduling proposal “would not alter” the federal drug testing requirements.

As more states legalize marijuana, a federal report published earlier this year showed that the number of positive drug tests among commercial drivers fell in 2023 compared to the year before, dropping from 57,597 in 2022 to 54,464 in last year. At the same time, however, the number of drivers who refused to be screened at all also increased by 39 percent.

Another question found that 65.4 percent of motor carriers believed current marijuana testing procedures should be replaced with methods that measure active impairment.

At the time, the report from the American Transportation Research Institute (ATRI) noted a 65,000-driver deficit in the country and said the fear of positives over marijuana metabolites—which can remain in a person’s blood far long after active impairment—may be keeping would-be drivers out of the industry.

The record-high number of refusals came as the transportation industry faces a nationwide shortage of drivers, which some trade groups have said has only been made worse by drug testing policies that risk flagging drivers even when they’re not impaired on the job.

Current federal law mandates that commercial drivers abstain from cannabis, subjecting them to various forms of drug screening, from pre-employment to randomized testing.

In June of last year, meanwhile, a American Transportation Research Institute (ATRI) survey of licensed U.S. truck drivers found that 72.4 percent supported “loosening” cannabis laws and testing policies. Another 66.5 percent said that marijuana should be federally legalized.

Cannabis reform advocates, meanwhile, have also called on federal officials to change what they call “discriminatory” drug testing practices around the trucking industry.

“Tens of thousands of workers are leaving the commercial trucking industry because the federal government refuses to update its antiquated marijuana policies,” Paul Armentano, deputy director of NORML, wrote in a Marijuana Moment op-ed earlier this year. “Fewer truckers on the road results in supply chain shortages and higher prices for the goods Americans rely on.”

A top Wells Fargo analyst said in 2022 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.

Rep. Earl Blumenauer (D-OR) sent a letter to the head of DOT in 2022, emphasizing that the agency’s policies on drug testing truckers and other commercial drivers for marijuana are unnecessarily costing people their jobs and contributing to supply chain issues.

Last year’s ATRI report noted that research into the impact of cannabis use on driving and highway safety is currently mixed, complicating rulemaking to address the issue. A separate 2019 report from the Congressional Research Service (CRS) similarly found that evidence about cannabis’s ability to impair driving is inconclusive.

Also last year, DOT finalized a rule permitting another alternative option to screening urine samples: saliva-based testing. Depending on frequency of use, THC is generally detectable in saliva anywhere from one to 24 hours after use, according to the agency.

In 2022, meanwhile, DOT proposed guidance warning commercial drivers who use CBD products that they are doing so “at their own risk.”

A newsletter from DOT’s Federal Transit Administration (FTA) published that same year 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.

Meanwhile the head of ATA told Congress a year ago that the state–federal marijuana policy conflict is creating a “litigious environment” for the trucking industry, contributing to the challenge of the labor shortage.

“Want to smoke weed at home? Smoke weed at home. If it’s legal, fine,” ATA President Spear said at the time. “Do not get behind the wheel of an 80,000-pound vehicle. We need to have strong standards, and we need to enforce the law.”

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