Reported by Shelley Byrne for The Waterways Journal.
Amid reported difficulty recruiting employees who can pass drug tests, the American Waterways Operators (AWO) is one of the organizations hoping a new testing method gains approval for transportation workers.
Oral fluid testing was approved as scientifically valid by the U.S. Department of Health and Human Science in 2019 and is under consideration by the U.S. Department of Transportation (DOT), which issued a proposed rulemaking last year. A final rulemaking, initially expected in December 2022, was never issued.
If approved by the DOT, the Coast Guard would also have to approve the testing for it to be valid on the nation’s waterways.
With oral fluid testing, those being screened place a swab inside their mouths, sometimes rubbing it against the inside of the cheek, allowing it to absorb saliva. Already approved for some workplace testing inside the United States, the test detects marijuana use within roughly the past 24 hours, with some testing companies saying some results may be detectable as long as 72 hours.
Patrick Parsons, counsel for AWO, said members are reporting that it is becoming more and more challenging to find employees who can pass a drug test.
Members have generally reported that about 10 percent of employees can’t pass a test, with some members reporting up to 80 percent can’t pass, Parsons said.
“Regardless of the number, it’s a huge impact on our industry when we’re already having trouble recruiting new mariners,” he said.
Currently, the only approved drug testing method for U.S. transportation workers is a urine test, which can potentially detect marijuana use as long ago as 67 days.
“That’s a really long period of time to look at any kind of drug use,” Parsons said.
He noted that in the inland waterways sector, where crews may be off-duty for 28 days at a time, it means tests are flagging marijuana use by crewmen in their off time, even when they live in states where medical or recreational marijuana use may be legal.
Federal Vs. State Laws
According to the Marijuana Policy Project, the nation’s leading cannabis policy reform organization, as of March 31, 38 states have legalized medical marijuana use for patients with debilitating medical conditions. Kentucky was the latest state to do so.
At least 22 states, plus Washington, D.C., now legalize recreational marijuana use, according to a March article in “U.S. News & World Report.”
However, marijuana remains classified as a Schedule I drug under the federal Controlled Substances Act, meaning the government believes it to have no medical use and a high potential for abuse. Since the inland waterways system is federally regulated, it falls under this statute, and those seeking to gain or retain employment within the industry must show no detectable marijuana use during screening.
That difference between state and federal law can be confusing to prospective employees, Parsons said.
Mariners may also be unaware that CBD oils and products containing them, legal in some states even where marijuana use is not, can cause a positive test for marijuana on urine testing, Parsons said.
“Federal drug tests can pick up use of CBD oil because those products are completely unregulated,” he said. “What you might think is a muscle cream to ease a muscle ache could have far more CBD oil in it and be enough to trigger a federal test.”
Focus On Testing
Rather than focusing on whether marijuana should be legalized or for what use it might be permitted, AWO has instead focused on revisions to testing because the period marijuana is detectable in an oral fluids test is much more closely aligned with the period in which it may cause impairment in a mariner’s abilities to carry out his or her job duties, Parsons said.
In a letter to Secretary of Transportation Pete Buttigieg in April 2022, in response to the DOT’s proposed rulemaking allowing oral fluids testing, AWO President and CEO Jennifer Carpenter said AWO “fully supports the addition of oral fluid testing” to the Procedures for Transportation Workplace Drug and Alcohol Testing Programs.
“AWO members are deeply committed to safe operations and to maintaining a drug-free workplace for the safety of their crews, the waterways, and the public,” she said in the letter. “The option of oral fluid testing is critically needed to provide operators with additional flexibility to continue upholding that safety imperative.”
While AWO did not believe oral fluids testing should replace urine screening, instead supporting using either option, Carpenter said in the letter that having the oral fluids option could help address workforce challenges.
“The transportation industry increasingly faces challenges in navigating uniform, unequivocal federal drug testing requirements and a growing patchwork of state drug legalization decisions,” she said. “The challenges are particularly acute when hiring new workers into federally regulated transportation industries who are often unaware of the incongruence between federal and state rules.”
Additionally, Carpenter added, while not a primary driver of support for added oral fluid testing, such tests would result in savings to employers as they are less expensive than urine testing.
Oral fluids testing is also less invasive and less time-consuming, and the ability for employers to train qualified collectors could also result in further operational cost savings, Carpenter wrote, noting, “The transient nature of transportation workers often creates logistical challenges in obtaining and securing collections. However, the use of oral fluid testing coupled with internal qualified collectors can significantly mitigate those challenges and lead to additional cost savings for the transportation industry.”
Other Transportation Industry Voices
Those who wished to make comments on the proposed DOT rulemaking could do so via an internet portal at regulations.gov, choosing to post either publicly or anonymously on a docket for the proposed rulemaking. During the comment period, which closed April 29, 2022, 417 comments were accepted. In addition to AWO, among those signed as supporting an option for oral fluid testing were the Association of American Railroads and the American Short Line and Regional Railroad Association, Airlines For America, The Truckload Carriers Association, the Towing and Recovery Association of America, The Transportation Trades Department of the AFL-CIO and the Passenger Vessel Association (PVA).
“PVA is supportive of the regulations for oral fluid testing as published in the NPRM,” said an uploaded letter signed by Bob Bijur, PVA president for 2022. “We believe the flexibility afforded by oral fluid testing and the projected lower cost will benefit our operators. We also believe that having every collection observed will eliminate the need for private rooms and same-gender collectors and will help improve compliance with the program.”
Support for the amended rulemaking was not unanimous, however, with organizations such as Impairment Science Inc. noting that blood, urine and saliva testing, while indicating the presence of THC—the substance in marijuana that can cause impairment—do not functionally test the level at which a user is impaired.
The National Drug and Alcohol Screening Association, while supporting the inclusion of oral fluid testing as an additional tool to eliminate limitations of urinalysis, such as direct observation collections, ability to subvert the test and “shy bladder,” cautioned that oral fluids testing may not be less expensive than urinalysis, although it will save on time for the employer, donor and collector.
Laboratory Corporation of America Holdings (Labcorps) agreed that employers should have the option to select oral fluids drug testing, but wrote that if DOT-regulated employers continue to utilize external testing providers, the potential savings in overall test costs will not be realized.
Parsons said AWO’s goal for approving oral fluids testing is clear moving forward.
He said, “Our goal is to get the DOT to approve it as quickly as possible and to work hand-in-hand with the Coast Guard to implement it for the maritime industry as quickly as possible.”
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