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New Drug Testing Technologies and State Drug Testing Laws

New Drug Testing Technologies and State Drug Testing Laws

Blog written by Jessica Polk and eMed Staff

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein. 

This is an exciting time to be either a provider or user of drug testing. Consider the following:  

  • On May 1, 2023, the U.S. Department of Transportation (DOT) issued final regulations for oral fluid drug testing, endorsing a drug testing method other than urine for the first time in 30+ years. 
  • The industry is finding innovative ways to address and overcome its biggest threat in three decades—marijuana legalization. It turns out that testing for marijuana is still legal in virtually every state. 
  • New collection methods, such as proctored tests utilizing telehealth apps, are making it possible for employers to get specimens collected even when traditional methods are unavailable. 
  • And there are some new and intriguing screening methods, including fitness-for-duty testing, that could someday change how both providers and employers address substance abuse in the workplace.  

In 1999, the first edition of ‘Why Drug Testing’ was published by the Current Consulting Group. In this book, various statistics illustrate the benefits of implementing a workplace drug testing program. Among the reasons included were safety concerns many employers face that affect productivity, employee turnover, and return on investment. As we begin a new year, we find that the issues associated with workplace drug use and abuse are constant.   

Whether it is the aftermath of the COVID-19 pandemic or the increased legalization of marijuana and decriminalization of narcotic drugs in some states, employers are still facing the challenges of finding qualified applicants and maintaining a safe and productive workplace. In addition, many workplaces are revisiting the practice of occupational health and wellness as part of their workplace safety program. Inclusive drug testing policies that influence worker productivity go hand in hand with health and wellness programs. As a result, the drug testing industry is focused on answering the call with new and innovative technology. 

As new products come on the market and we look for the next “big” thing in drug testing, we ask: Does the hype match the reality? If you consider lab-based urine drug testing as “square one” for drug testing technology and everything else as the next big thing, some products that were once new to the industry are now commonplace. For instance, rapid-result devices for both urine and oral fluid were once on the “cutting edge,” and today they are cutting into lab-based testing’s market share. Hair testing was once hailed as the next big thing and today it’s the real thing. 

Without a doubt, the biggest winner is oral fluid testing. Today, it is the only recent-use detection method endorsed by the federal government. DOT’s regulations for lab-based oral fluid testing are by far the most significant development in drug testing since the enactment of the Omnibus Transportation Employee Testing Act of 1991. 

There are many things that can make or break a new testing methodology. Chief among these factors is what state drug testing laws say. Most state drug testing laws were enacted long before today’s newest testing methods were even imagined. Drug testing providers and employers can apply a simple six-question test with a nod to state drug testing laws (as well as federal government regulations) to determine if a new product is a legitimate contender or just another pretender.  

  1. Does the product actually exist?  
  2. Does the product actually work?  
  3. Does the product have approval from the federal government?   
  4. Is the specimen legal to use for workplace drug testing? 
  5. Are there satisfied customers already using the product?  
  6. Is it practical? 

49 CFR Part 40 

The gold standard of drug testing is the federal government's 49 CFR Part 40. All employers mandated to conduct workplace drug testing, including government agencies, must comply with Part 40. It contains very detailed guidance on the drug-test process. Even in non-government-mandated situations, Part 40 can serve as a guide to help employers develop the most legally defensible program possible. 

A number of states with either mandatory or voluntary drug testing laws defer to Part 40 and require employers to follow many parts of those regulations when conducting drug testing in their states. Various aspects of Part 40 can be applied to non-government endorsed testing methods, such as point-of-collection or rapid-result testing, which is currently not permitted by DOT but is completely viable and beneficial in many non-government testing programs. 

Drug testing is necessary for many reasons. Drug testing the right way is critical. Employers should consider Part 40 when designing their program.   

What the Industry is Saying 

The results of three drug testing industry surveys conducted in 2023 by the Current Consulting Group give insight into the perspectives of providers, employers, and industry experts that help predict the future of drug testing. 

In the first survey, when drug testing providers were asked, “In the future, what drug testing specimen will be used the most?” 46% said urine (down from 50% in 2022) while 46% also indicated it would be oral fluid (up slightly from 45%). About 7% said it would be hair, up from 4.2% in 2022.  

In the second survey, when employers were asked if they were planning to add a testing methodology to their program in the next 12 months, 22%, the highest response, said yes to oral fluid testing.   

When asked if they were willing to try a new method they had never tried before, 77% of employers were open to the idea. Several factors, however, would influence their decision to try new methods, including accuracy, cost, DOT and/or SAMHSA status, legality, provider support, ease of use, employee response, and training needs.   

The third survey included responses to interviews with industry experts to assess their position on emerging technology. When these experts were asked which emerging technology impressed them, their answers included:  

  • Telehealth/Proctored/Remote testing, especially when paired with POCT oral fluid testing. 
  • Technology that allows quicker but still defensible results. 
  • Anything that can show parent THC rather than metabolites of cannabis. 
  • Advancements with oral fluid testing continue to impress me. 
  • Roadside drug and alcohol testing happens today across the globe and those advances could quickly come to the states soon enough, as we see the platform for breath THC come to life. 
  • Ocular testing, anything having to do with impairment testing. 
  • Fingerprint testing and cognitive impairment testing. 

Final Point 

In the end, employers must do their own research. There is too much riding on each drug test to rely wholly on what someone else says. Here’s a quick three-question test you can apply to help you decide about using any new technology: 

  1. Is it legal in the states where you have business operations or could it be in the near future?  
  2. Is there empirical data to support all accuracy claims? 
  3. Is it a practical fit for your company or, in other words, will it make drug testing more efficient and cost-effective, and will your employees support it? 


      This is a unique time in the history of workplace drug testing. There is so much to look forward to for both providers and employers. The old adage “look before you leap” is good advice for these times… but be ready to leap. Oral fluid testing, proctored testing utilizing telehealth collection apps, and fitness-for-duty screening may be just the beginning of a brave new world for employee screening. 

      To learn more about our virtual drug screening services visit our website:

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