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Legislative changes are being proposed and passed at lightning speed in today’s day and age. With the breakneck speed at which laws and regulations are changing, is your workplace drug and alcohol testing program up to date and compliant with all applicable laws and regulations?

Changes to Federal Regulations

Recent years brought about several changes for federally regulated employers, with both the Substance Abuse and Mental Health Services Administration (SAMHSA) and the federal Department of Transportation (DOT) recently releasing guidelines pertaining to the use of laboratory-based oral fluid for workplace drug testing purposes. SAMHSA originally issued Oral Fluid Mandatory Guidelines (OFMG) in 2019, with an anticipated effective date of January 2020 and 12–18-month implementation date following the 2020 effective date. 2023 brought about updates to SAMHSA’s OFMG and Mandatory Urine Gudelines (UrMG).¹

Updates to the UrMg included, but were not limited to:

• Required annual publication of an authorized biomarker testing panel in the Federal Register;
• Required semiannual reports from Medical Review Officers (MROs) detailing verified negative specimens and their reasons; and
• Clarification that passive exposure to all drugs cannot be used as an acceptable explanation for a positive drug test.

Updates to the OFMG were more extensive and included, but were not limited to:

• Required annual publication of an authorized biomarker testing panel in the Federal Register;
• Required semiannual reports from MROs detailing verified negative specimens and their reasons;
• Updated requirements pertaining to oral fluid specimen devices;
• Updated oral fluid collection instructions;
• New guidance for laboratories pertaining to expiration dates on specimen collection tubes; and
• Clarification that passive exposure to all drugs cannot be used as an acceptable explanation for a positive drug test.

As of 2025, there are still no laboratories that have been approved to process laboratory-based oral fluid tests for SAMHSA.

The DOT published a final rule adding lab-based oral fluid as an approved test specimen in May 2023.² The rule is effective as of June 2023; however, oral fluid is not available for use until such a time as the Department of Health and Human Services (HHS) certifies two laboratories for oral fluid testing. Similar to SAMHSA, once laboratories have been certified, employers will be able to choose between using urine, oral fluid, or a combination of both.

DOT’s final rule is extensive, containing a plethora of information on the following topics:

• Why employers should consider oral fluid as an alternative to or in addition to urine testing;
• General information on oral fluid collections;
• Specific oral fluid device requirements;
• Oral fluid collector requirements;
• Requirements for oral fluid collection sites;
• A detailed overview of the oral fluid collection process;
• Oral fluid cutoff levels;
• MRO and Substance Abuse Professional (SAP) specific guidance; and
• Information on when oral fluid is not permitted for DOT-regulated employees.

Again, it is important to note that prior to the implementation of DOT’s oral fluid rule, HHS must certify at least two laboratories for oral fluid testing. As of 2025, this requirement has not yet been met.

Recent Changes to State Laws

The past year brought about a number of significant changes to state laws that employers should be aware of, as well as comply with. An overview of a few recent changes is as follows:

• Alaska adds oral fluid testing³
  • Employers that choose to comply with the voluntary law now can now use oral fluid broadly in all circumstances where urine and breath were already permitted.
• Minnesota adds rapid oral fluid testing⁴
  • Employers may now choose to perform oral fluid testing that is exempt from the state’s laboratory testing requirements.
  • Results must be given at the time the test occurs.
  • A donor has 48 hours after a positive, inconclusive, or invalid oral fluid test to request a laboratory -based drug, alcohol, or cannabis test.
• Nebraska medical cannabis⁵
  • Authorizes qualified patients to treat medical conditions or their symptoms with medical cannabis.
  • Establishes the Nebraska Medical Cannabis Commission to oversee the program.
• Ohio voluntary drug and alcohol testing law updates⁶
  • A complete overhaul of the state’s voluntary testing program.
  • Employers who choose to comply are eligible for certain benefits from the state depending on compliance level.
  • Four levels offered (advanced, basic, comparable, and reimbursement only).
  • Programs must include specific test circumstances (depending on compliance level), policy requirements, and more.
  • Generally urges all employers to follow the federal drug testing model.
• Pittsburgh medical cannabis patient discrimination⁷
  • Prohibits discrimination because of an individual’s status as a medical cannabis patient.
  • Employers cannot (generally) require pre-employment or post-hire cannabis testing.
  • There are certain safety-sensitive carve-outs for specific positions and/or general job duties.

Other Reasons to Update Your Screening Program

Employers that don’t review and update their screening programs regularly run the risk of having out-of-date information and practices implemented in their workplace. A regular policy and program review can ensure that your workplace is testing for the most relevant drugs – prescription drugs, for example, are currently a trending drug of abuse, and employers that don’t include them in their testing panel risk opening themselves to safety risks from prescription drug abusing employees.

A regular policy and program review can ensure that your workplace is testing for the most relevant drugs...and employers that don’t include them in their testing panel risk opening themselves to safety risks.

Additionally, an out-of-date program misses out on relevant social factors. In 2025, those could include, but are not limited to, the continued opioid epidemic, the rising trend of marijuana use, newly developed synthetic drugs, etc. Social trends directly impact which drugs an employer should test for, and employers not tracking trends are likely out-of-date on their policies and could have drug abusers in their workplace.

If you haven’t updated your panel recently, you are likely testing employees and applicants for propoxyphene and methaqualone, both of which have been staples of the standard expanded panel for a number of years. Neither drug is still produced or widely available – employers that continue testing for these out-of-date drugs close themselves off to testing methodologies such as instrumented point of collection testing (POCT), which offers panels that include more relevant drugs for today’s day and age.

Staying Compliant and Up to Date

Staying compliant in today’s era of quickly changing laws can be difficult and near impossible if you don’t have the right toolkit. Stay alert to pending/progressing legislation in your state(s) of business so that you are prepared for what might be immediately required changes. Work with a state law expert to ensure that you fully understand newly passed laws and regulations and know what is needed in order to keep your program compliant.

Updating your policy is perhaps the most important step to staying up to date. Rather than having a “uniform” policy that covers operations in all 50 states, create a custom policy that has addenda for each state, permitting total compliance and easy updates. Review your policy at least annually to ensure that it is compliant with all applicable laws. Monitor legal marijuana legislation that has workplace-specific language in it and be prepared to update your policy as these bills become law. Re-train supervisors and managers any time you make significant changes to your policy.

Employers that are not aware of changing laws and regulations risk legal action as a result of their non-compliance. Lawsuits are costly and can easily be avoided simply by taking steps to remain compliant.

Conclusion

Compliance is key when it comes to workplace screening programs. Companies should remain up to date on changing laws, regulations, and best practices in order to stay complaint.