laska employers with a drug and alcohol testing policy now have one more legally protected collection method available. Last July, Governor Mike Dunleavy signed Senate Bill 196 (SB196), which amended Alaska’s employer drug and alcohol testing, or “safe harbor,” law to include oral swab, or saliva, testing alongside urine and breath testing as permissible collection methods. The amendment went into effect on October 28, 2024.

The Alaska Power Association (APA), a statewide trade association representing Alaska’s electric utility companies, spearheaded the legislation, says Deputy Director Michael Rovito. Senators Click Bishop and Jesse Bjorkman worked together on the bill, which was ultimately sponsored by the entire Senate Labor and Commerce Committee.

“For us, we saw it as an advantageous change that would help with our members who want to implement this sort of drug testing and help them have protection under the existing law,” Rovito says. “Support was widespread, and the APA was happy to carry the bill and push it forward. Overall, it’s a win/win for Alaska.”

The Alaska legislature passed the employer drug and alcohol testing statutes, AS 23.10.600 – 23.10.699, in 1997. The law protects employers from actions for defamation, libel, slander, damage to reputation, or other damages related to a drug testing program, provided the policy is in writing and employers inform employees of its existence; testing is allowed for “any job-related purpose consistent with business necessity and the terms of the employer’s policy.” When the statute was first adopted, urine and breath testing were the only protected collection methods.

“Unfortunately, oral fluid testing did not exist when the safe harbor law was passed, so it was never included in the law as a protected testing method,” Barrow Utilities and Electric Cooperative Inc. (BUECI) Human Resources Manager Taihya Thomas testified at a March 8, 2024, Senate and Labor Commerce Committee hearing. The cooperative’s drug and alcohol testing policy includes mandatory pre-hire, random, and for-cause testing.

Lab-based oral fluid drug testing first emerged in the ‘00s; since then, an increasing number of employers in non-regulated industries have been utilizing the method. Drug testing consulting company Current Consulting Group conducted a nationwide survey in 2023 of drug testing professionals and found that the number of drug testing providers that offered oral fluid testing jumped from 39 percent in 2019 to 86 percent in 2023, a 154 percent increase.

The federal government also recently adopted regulations authorizing the use of oral swab testing. The US Department of Health and Human Services Substance Abuse and Mental Health Services Administration approved oral swab testing for non-regulated federal employees in 2019; in 2023, the US Department of Transportation (DOT) approved the testing for federally regulated industries, although implementation of those regulations is currently on hold. Still, some DOT-regulated industries utilize oral swab testing to make conditional employment offers.

“We do [oral swab testing], and there are non-federal clients that we have that do it,” says Jessica Roley, director of operations for MedPhysicals Plus. “Some companies under DOT do the instant oral fluid test so they know whether to invest in a new hire and maybe start orientation while they wait for the lab-based urine test, which can take three to five days for results.”

SB196, then, simply cured an inconsistency between Alaska law and the realities of workplace drug and alcohol testing programs, which Bjorkman pointed out in his sponsor statement.

“While an employer could already choose to collect an oral fluid sample instead of a urine or breath sample, adding the collection of oral fluid in this section of statute protects the employer from legal claims related to drug or alcohol testing and subsequent employment actions,” he wrote.

As amendments go, SB196 was succinct—it simply added “oral fluid” as a permissible collection method under Alaska Statutes 23.10.620(c) and 23.10.630(b) and in the definition of “sample” under AS 23.10.699(9). The bill enjoyed widespread support among Alaska’s trade organizations and chambers of commerce, and it passed with zero pushback from legislators.

“This one went pretty quickly in terms of legislation,” Rovito says. “It was filed at the beginning of the 2024 session, and it passed in the 2024 session, so it was one of those bills that went through at a pretty good pace. We were pretty happy that it passed unanimously in both the Senate and the House.”

Although the federal government approved oral swab testing for regulated employees, roll out of the testing is on hold pending the government’s creation of a testing kit and accreditation of laboratories to test the samples.

“I believe that once they get a lab accredited, it’s going to go quickly because everybody has been waiting for it,” Roley says. “But we don’t know when that is.”

The most obvious advantage of oral swab tests is the ease of collecting samples.

“What we heard from our members is that, from a business standpoint, oral fluid testing is just a lot quicker, a lot more secure, and a lot less invasive,” Rovito says.

The secure nature of oral swab testing makes cheating the test nearly impossible. Employees provide urine samples in the privacy of a bathroom stall, out of the collector’s sight. During an oral swab test, however, the employee is in the presence of the collector for the entire time.

“It’s a slighter chance of you cheating an oral test [compared to] a urinalysis,” explains Vernesia Gordon, a certified DOT specimen collector and breath-alcohol technician at MedPhysicals Plus. “For one, you’re going to check their mouth to make sure there’s nothing in it. Then you’re going to give them eight ounces of water, and they have to wait ten minutes to actually do the oral testing. Right there, you’d be able to see if they tried to cheat.”

The results of an oral swab test may also be more accurate, an important factor when employee and public safety is on the line.

“Oral fluid samples… can detect the presence of drugs within a shorter detection window,” Alaska Telecom Association Executive Director Christine O’Connor wrote in a February 23 letter supporting the bill. “This means that oral fluid testing is better suited for identifying individuals who may be under the influence of drugs while on duty, thereby reducing the risk of workplace accidents and injuries.”

Oral swab testing also has practical advantages. Like other industries, drug testing providers face staffing challenges, and the private nature of urine collection adds an extra layer; oral swab testing alleviates some of them.

“An observed collection has to have a same-gender collector,” Roley says. “Well, if you can imagine, especially with the employment shortage situation, that becomes a very, very, very hard feat to accomplish. Add to that gender fluidity, then the employers and really the industry is basically asking for a potential lawsuit.”

The increased ease of finding trained collectors is especially beneficial for employers in rural communities, particularly when no testing facility to collect a urine sample is available.

“In remote areas where there’s maybe no clinic, what happens is, we need a bathroom,” Roley explains. “Well, there are a lot of workers that are not anywhere near a facility, and that becomes a challenge. The male workers, all they have to do is turn around, but with females, it gets harder.”

Thomas testified that, when BUECI’s service provider closed with little warning, the company was left scrambling to find trained testers; during COVID-19, she said, it was “essentially impossible” to get individual drug and alcohol testers to travel to Barrow, leaving BUECI supervisors to collect, label, and ship the urine samples out for testing.

“They did a great job and so did our employees, but I’m sure you can imagine how uncomfortable and awkward this was for everyone involved,” she told the committee. “None of us signed up to be urine collectors, but that’s what we had to do to meet our legal responsibilities and maintain a safe workplace.”

Oral swab testing will make it easier for rural employers like BUECI, she said, because “it is flexible enough that it can be performed by a trained collector in the field or even in my office if needed.”

Thomas said BUECI was interested in amending its drug testing policy to allow for oral swab testing once it was added to Alaska’s safe harbor law; she said the company would “switch to oral fluid testing across the board” once the federal government fully approves the method for regulated employees.

Thomas said, “Not only will it be less gross and embarrassing for everyone involved to collect saliva instead of urine, we also think it will end up being significantly less expensive.”