Another hair testing proposal bites the dust

The Trucking Alliance’s latest attempt to get hair testing results included in FMCSA’s Drug and Alcohol Clearinghouse has been denied.

The most recent rejection is set to publish in the Federal Register on Friday, Dec. 23. In the notice, the Federal Motor Carrier Safety Administration again informed the Trucking Alliance that it didn’t have the authority to grant the group’s request.

In August, the Trucking Alliance asked the agency to amend the regulations, requiring carriers with knowledge of a positive hair test to report the results to the Clearinghouse.

Motor carriers in the Trucking Alliance include Cargo Transporters, Dupre Logistics, Frozen Food Express, J.B. Hunt Transport, KLLM Transport Services, Knight Transportation, Maverick Transportation, Schneider, Swift Transportation, U.S. Xpress and May Trucking Co.

Urinalysis satisfies the current drug and alcohol testing requirements by the FMCSA. However, many large fleets require their employees to undergo hair and urine testing. Through its request, the Trucking Alliance wanted to pass on information about a failed hair test to other motor carriers. However, the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration cited legal cases that “indicate an employment action taken on the basis of a positive hair test alone, without other corroborating evidence, may be vulnerable to a legal challenge.”

At the time of the Trucking Alliance’s request, FMCSA said it didn’t have the authority to grant it but still opened the application to public comment.

In the denial notice, FMCSA again said it “lacks the statutory authority to grant the exemption request to amend the definition of actual knowledge to include the employer’s knowledge of a driver’s positive hair test.”

Trucking Alliance also made a similar request to FMCSA in 2020. FMCSA formally denied that request in May 2021, noting that it lacked the statutory authority to do so.

Opposition to request

FMCSA received 113 comments on the Trucking Alliance’s request, with 70 filed in opposition.

The Owner-Operator Independent Drivers Association, International Brotherhood of Teamsters, the National Association of Small Trucking Companies and the Sikh Coalition were among the organizations asking FMCSA to deny the application.

OOIDA told FMCSA that hair testing is unreliable and creates unneeded concerns for drivers.

“The Clearinghouse should not accept the results of any hair follicle testing considering the inconsistencies and inaccuracies involved,” OOIDA wrote in comments signed by President Todd Spencer. “Even under current Clearinghouse regulations, drivers are not always assured of due process. Not surprisingly, drivers have shared legitimate concerns about their employment status following false positives and other contentious results.”

The Sikh Coalition raised concerns about false positives and faith-based accommodations.

The denial

The Trucking Alliance argued that the FMCSA possesses the authority because of a provision that “requires FMCSA adopt regulations permitting pre-employment hair testing for controlled substances as an alternative to urine testing for commercial motor vehicle operators and for random testing if the operator was subject to pre-employment hair testing.”

FMCSA said that the Trucking Alliance’s argument ignores the requirement that FMCSA follow the Department of Health and Human Services mandatory guidelines for hair testing.

“This approach disregards an accepted standard of statutory construction, which provides that statutory text must be construed as a whole,” FMCSA wrote.

The agency added that nothing in the provision authorizes the use of hair testing as an alternative to urine tests until Health and Human Services establishes federal standards for hair testing.

OOIDA applauded the decision.

“FMCSA’s swift denial of another Trucking Alliance exemption request highlights the unanswered questions and validity concerns with hair testing,” said Jay Grimes, OOIDA’s director of federal affairs. “Just because a small percentage of trucking companies opt to screen their drivers using hair testing does not mean the process should be used for the entire industry. OOIDA maintains our opposition to any hair testing mandate.” LL

Land Line’s Ryan Witkowski contributed to this report.