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Part 40 - DOT Policies Notice

DOT Drug Testing: Employer DOT Policies – the Part 40 Changes

On May 2, 2023, the Department of Transportation (DOT) published a final rule in the Federal Register (88 FR 27596). This final rule, among other items, amends the DOT’s regulated industry drug testing program to include oral fluid testing.

The DOT Agencies & United States Coast Guard (USCG) have provided guidance to DOT-regulated employers about what their DOT policies will need to contain about the changes to 49 CFR Part 40, which are effective June 1, 2023.

  1. The Federal Transit Administration, Federal Motor Carrier Safety Administration, Federal Aviation Administration, Pipeline and Hazardous Materials Safety Administration[1], Federal Railroad Administration, and USCG take this position:

        There is no need for employers to make any changes if their current DOT policies refer to adhering to “... Part 40.” However, there are exceptions when an employer’s DOT policy lists the following optional information:

  • If the policy specifically states that ‘urine’ is the only specimen authorized for drug testing, then that text will need to be updated to read ‘urine and/or oral fluid’.
  • If the employer is authorizing oral fluid testing, the policy will need to state the testing events (e.g., pre-employment, random, follow up) for which an oral fluid collection will occur.  Similarly, the policy will need to state if oral fluid collections will be authorized for shy bladder situations and direct observation collections.
    • Employees do not have the option to choose what testing methodology will be used.
  • While these DOT Agencies and USCG suggest that employers provide written notice to employees about their updated DOT policies, doing so is an employer's prerogative.

This document replaces the previous Employer DOT Policies - Part 40 Changes notice from 2017.

[1] PHMSA regulations require a written anti-drug plan not a drug policy, so all references to “policies” in this notice apply to PHMSA written anti-drug plans, not to a drug policy.

May 2, 2023


NOTE:   This document informally summarizes some of the important effects of the rule, but it is not a substitute for the rule and should not be relied upon to determine legal compliance with the rule.  ODAPC encourages affected entities, including employers and service agents, to review the final rule.