New Guidelines for Federal Workplace Drug Testing Proposed
May 2004
Currently, federal regulations allow urine
testing of federal employees in safety-sensitive and security-sensitive positions.
New guidelines for federal workplace drug testing—including hair, oral fluid,
and sweat testing—have been proposed for certain testing situations, such as
preemployment, random, reasonable suspicion/cause, post-accident, return-to-duty,
or follow-up testing.
by Paul
J. Siegel and Kathryn J. Russo
Jackson Lewis
LLP
On April 13, 2004, the U.S. Department of Health and Human Services (DHHS)
announced a proposal to revise its Mandatory Guidelines for Federal Workplace
Drug Testing Programs to establish guidelines for the testing of hair, oral
fluid, and sweat specimens for drugs, in addition to urine (the specimen that
must be used under the current regulations). In addition, DHHS is proposing
guidelines for using on-site tests to test urine and oral fluids at the collection
site, requirements for certification of instrumental initial test facilities
(i.e., local facilities that perform screening tests but not confirmatory tests),
and added standards for collectors, on-site testers, and medical review officers,
among other things.
The proposed rules would affect drug testing of approximately 400,000 federal
employees, mainly in safety-sensitive and security-sensitive positions. However,
they may impact private employers directly if they are adopted by the U.S. Department
of Transportation (DOT) for trucking and other regulated industries. The new
rules also could pressure service providers to lower the prices they charge
for laboratory tests, and give businesses greater flexibility in running their
testing programs.
Highlights of the proposed new rules follow.
Testing of Hair, Oral Fluid, and Sweat Specimens
DHHS's proposed guidelines for testing of head hair, oral fluids and sweat
articulate the procedures to be followed in collecting each type of specimen;
the cut-off concentrations to be used to establish positive test results for
each specimen type; the criteria to be used to establish adulterated, substituted
and invalid test results; and the requirements for validity testing on all specimens,
among other things.
Head Hair
DHHS is proposing that hair testing be included in the Federal Workplace
Drug Testing Program for preemployment, random, return-to-duty, or follow-up
testing. Hair testing generally can detect drug usage within the past 90 days—a
much longer period in comparison to urine, sweat, or oral fluid. Hair is easily
collected, transported, and stored, and is more difficult to adulterate than
urine.
Oral Fluids
DHHS proposes that oral fluids testing be permitted for preemployment, random,
reasonable suspicion/cause, or post-accident testing. Oral fluid is readily
accessible and its collection is perceived as less invasive than a urine specimen
collection. Oral fluid collections can easily be observed and, therefore, the
specimen is less susceptible to adulteration or substitution. Drugs can be detected
in oral fluids within one hour of use, making oral fluids useful in detecting
very recent drug use.
Because oral fluid tests appear to be less accurate when testing for marijuana,
DHHS proposes that a urine specimen be collected at the same time the oral fluid
specimen is obtained, for the purpose of testing for marijuana if the oral fluid
specimen is positive for marijuana.
Sweat
DHHS proposes that sweat testing be permitted for preemployment, random,
reasonable suspicion/cause, post-accident, return-to-duty or follow-up testing.
Sweat may be collected as liquid perspiration, on sweat wipes, or with a sweat
patch. Sweat collection is non-invasive, and commercially available sweat patches
may be worn for an extended period of time. Unlike urine, head hair, or oral
fluid, the use of a sweat patch detects drug use that occurred shortly before
the patch is applied and while the device remains applied to the skin. The window
of detection for the sweat patch is for as long as the patch remains on the
skin and is a cumulative measure of drug ingestion.
Additional Testing Locations
Proposed changes to current DHHS Guidelines and DOT drug and alcohol testing
regulations pertaining to the locations where such testing can be conducted
would make testing more convenient, timely, and economical, and would ensure
tests are conducted by qualified, well-trained personnel.
Use of On-Site Tests
Currently, DHHS Guidelines and DOT drug and alcohol testing regulations do
not permit employers to conduct on-site testing. DHHS is proposing guidelines
permitting the use of Point-of-Collection Tests (POCTs) for drugs. The main
advantage of using a POCT is that it can be used anywhere and can provide quick
negative test results (positive test results must be sent to laboratories for
confirmatory testing). POCT testing of oral fluid or urine is most suited for
situations requiring quick test results such as in emergency or crisis situations.
Use of Instrumental Initial Test Facilities
DHHS also proposes to include options for Instrumental Initial Test Facilities
(IITFs) in its guidelines. An IITF is basically the screening part of a screening
and confirmatory laboratory that is established in locations to meet special
local testing needs more quickly and economically. The Notice of Proposed Rulemaking
proposes that IITFs should: (1) be at a permanent location; (2) meet program
forensic standards; (3) participate in open and blind proficiency testing; (4)
have a rigorous quality assurance program; (5) be subject to site inspections;
(6) use instrumented immunoassay tests for drugs which meet FDA requirements
for commercial distribution; (7) conduct required specimen validity tests; (8)
use DHHS cutoffs; and (9) submit all non-negative specimens to a full service
DHHS-certified laboratory for required additional testing.
Medical Review Officer Certification Requirements
DHHS proposes that Medical Review Officers (MROs) be required to complete
specific training requirements and to successfully complete an examination administered
by a nationally recognized entity that certifies MROs, or by a subspecialty
board for physicians performing a review of federal employee drug test results,
which has been approved by the Secretary of DHHS. DHHS also proposes requirements
for nationally recognized entities that seek approval from the Secretary to
certify MROs, or for subspecialty boards for physicians performing a review
of federal employee drug test results, to submit their qualifications and sample
examination. Based on an annual review of the qualifications and content of
the examination, the Secretary will publish annually a list of those entities
and boards that have been approved in the Federal Register.
Individuals and organizations may submit comments on the Notice of Proposed
Rulemaking by July 12, 2004.
Kathryn J. Russo is an associate in the Long Island office of Jackson Lewis LLP, where her practice
includes employment litigation and workplace substance abuse issues. She has
appeared in federal and state courts, as well as before panels of the American
Arbitration Association and the National Association of Securities Dealers.
She has also second-chaired a number of jury trials and arbitrations. Ms. Russo
received her BA degree from Tufts University and her JD degree from the Fordham
University School of Law. She can be reached at (631) 247-4606 or via e-mail
at .
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