February 18th, 2022 | Sterling

Should Employers Consider Oral Fluid Drug Testing

Though most private employers are not mandated by regulation to drug test their job candidates or employees, many do.  And this is for good reason.  Employers are responsible for maintaining a safe workplace for their employees, as well as ensuring safety for the public that their employees may interact with. 

Employers drug test to:      

• Avoid legal liability in the event an impaired employee causes an accident or harms someone while working.   
• Maintain workplace productivity by preventing the potential effects brought about by employee substance abuse.   
• Qualify for workers’ compensation premium discounts or credits in states that offer incentives to employers that maintain a drug-free workplace policy.        

The Early Days of Workplace Drug Testing     

After the 1980s when drug-free workplace testing programs began to take hold, drug testing proved to be a necessary strategy for American employers to help prevent serious accidents and improve workplace productivity.     

During these early years, laboratory-based urine drug testing was the predominant sampling and collection method used for workplace testing. With lab-based urine drug testing, a job candidate or employee would be instructed to visit a collection site and provide a urine specimen to be analyzed for specific drugs included in the employer’s testing panel.  The collector would manually prepare a paper chain of custody/control form (CCF), seal the collected specimen and package it with the CCF, and set it aside for a courier to pick up later in the day for transport to a qualified laboratory for analysis. 

Following analysis of the specimen, the lab would report the result and, if the result wasn’t negative, an MRO (medical review officer) would contact the specimen donor to determine if a valid medical reason prevented a negative result. If no valid medical reason could be established by the MRO, the employer would then learn that the donor was positive for illegal drug use, either due to using a substance without valid medical authorization or using an illicit substance (one that had no valid medical purpose for use).     

If this type of testing process sounds familiar that would be because it remains the most common method for workplace drug testing.  Several innovations, however, have been made since these early years, including electronic CCF, use of oral fluid (saliva) or hair sampling rather than urine, and use of employer-administered testing devices offering “instant” or “rapid” screening results.  Still, most of the workplace drug testing today employs lab-based urine drug testing.    

Some of these innovations may, however, offer notable advantages for employers that simply haven’t been considered. For example, are you aware that use of electronic CCF could help in significantly reducing result turnaround delays that exist with use of paper forms? Or that sampling methods other than urine exist that could identify more recent use of an illicit drug by an employee?     

In particular this article will explore attributes of lab-based oral fluid sampling, and why it may make sense for an employer’s testing program.    

Lab-Based Oral Fluid Drug Testing     

Lab-based oral fluid drug testing for the workplace has existed since the 2000’s. However, there are some differences between oral fluid and testing using urine, hair and blood.  We will explore the main differences and similarities to help you decide if oral fluid testing is a good fit for your testing program.    

How is Oral Fluid Different?

To start with, in comparison with urine, hair, and blood sampling, oral fluid is a less- intrusive option.  For example:      

• Unlike urine, the donor doesn’t need to be given privacy in a bathroom, where opportunity to cheat the testing process exists.           
• Unlike hair, oral fluid helps avoid complications associated with insufficient hair being available to collect.    
• Unlike blood, oral fluid doesn’t require use of syringe and needle by a trained phlebotomist to draw blood from a donor’s arm.       

How is Oral Fluid Similar?

Oral fluid testing is very similar to traditional urine sampling in many ways:      

• Oral fluid testing is scientifically accurate and legally defensible.   
• Chain of custody and specimen retention by the lab is modeled after federal guidelines.         
• Oral fluid testing can be used for detecting the most common drugs tested today, including marijuana, cocaine, opiates, amphetamine, methamphetamine, phencyclidine (PCP), oxycodone, barbiturates, benzodiazepines, and methadone.   
• Result turnaround is very comparable to urine testing.   
• Testing cost is comparable to urine, and even less expensive if the employer performs the specimen collection directly.  Hair and blood testing are significantly more expensive than oral fluid and urine testing.       

Advantages of Oral Fluid Testing:

There are several unique benefits of oral fluid testing:      

• Depending on substance ingested, oral fluid can detect more recent use than is the case with urine, typically within 1 – 6 hours of ingestion.         
• Oral fluid has shown to be more sensitive in detecting marijuana use.   
• An oral fluid collection can easily be performed directly by the employer, thereby avoiding lost employee time traveling to a collection site.   
• An oral fluid collection is performed with the donor under continuous supervision and observation of the collector or employer, thereby essentially eliminating donor ability to tamper with the specimen.   
• An oral fluid collection will not be interrupted or delayed due to a donor’s inability to provide sufficient specimen, as may be the case with urine on occasion (“shy bladder”).       

Possible Disadvantages of Oral Fluid Testing:

There are some attributes of oral fluid testing that some may view as a disadvantage, including:        

• Federally mandated testing.  As is currently the case with DOT (Department of Transportation) testing, lab-based urine testing is required for federally mandated testing.  However, SAMHSA (the Substance Abuse and Mental Health Services Administration) published guidelines in October of 2019 authorizing lab-based oral fluid drug testing that will eventually make it possible for federal workplaces to begin using lab-based oral fluid testing as an alternative to lab-based urine testing (at this time, lab-based oral fluid testing is expected to be adopted by the DOT by the end of 2022, after which testing can begin following federal certification of laboratories).       
• Shorter detection window.  Depending on substance ingested, amount of ingestion, and an individual’s metabolism, most substances can generally be detected in oral fluid within a 5 – 48-hour period following use.          
• Detection in urine generally falls into a 1 to 7-day period following use (or longer for chronic users).          
• Detection in hair generally falls into a 7 to 90-day period following use provided an inch and a half of hair length is available to be collected (essentially every half inch of hair from the skin can provide a 30-day window of detection).         
• U.S. state restrictions.  All states permit use of lab-based urine drug testing for all testing scenarios.  In the case of lab-based oral fluid testing, most states have no restriction for use, but there are a handful that require lab-based urine testing in certain scenarios or to qualify for workers compensation premium discounts.       

Oral Fluid testing is also increasing in popularity amongst employers interested in obtaining a rapid screening result.  As a point-of-collection testing device, an employer can directly collect a specimen for testing rather than sending an employee to visit a collection site, which may result in two or more hours before the employee can return to work.  Generally speaking, at least 90% of the time employers will receive a negative screening result¹, thereby allowing the employer to immediately proceed with an employment decision.     

In Conclusion     

Lab-based oral fluid testing offers some notable advantages for employers to consider.  Its ability to detect recent use sooner following ingestion than is the case with urine or hair, makes it a preferred sampling method for reasonable suspicion and post-accident testing scenarios.       

Recent surveys have also shown that more and more employers are turning to oral fluid testing.  According to the Current Consulting Group, 13% of drug testing providers and employers reported in a mid-year 2020 survey that 13% of their clients switched to or added oral fluid testing.  In the year-end survey, the percentage increased to 15%. Prior to the onset of the Covid pandemic, most experts believed that oral fluid represented about 8% of the workplace testing market share.     

Furthermore, with the October, 2019 publishing of federal guidelines for oral fluid testing, SAMHSA projects about 7% of federally-mandated drug tests will transition from urine to oral fluid in the first year, and increase further to 25% – 30% within 4 years.    

So, there is clear expectation from federal regulators as well as private industry that the advantages of oral fluid testing offer notable benefits to workplace safety and drug-free testing programs.   

1 Quest Diagnostics, 2021 (https://blog.employersolutions.com/ask-the-experts-the-life-of-a-drug-testing-specimen/#:~:text=Quest%20Diagnostics%20uses%20state%2Dof,of%20ten%20tests%20screen%20negative.) 

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.