HHS releases federal hair testing guidelines, but a rulemaking would be required to adopt them.
After years of waiting, the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration released its guidelines regarding the use of hair testing in federal workplace drug testing programs.
The notice of guidelines published in the Federal Register Sept. 10, kicking off a 60-day public comment period.
The guidelines will allow federal executive branch agencies to collect and test a hair specimen as part of their drug testing programs with the limitation that hair specimens be used for preemployment and random testing. However, a federal agency choosing to test hair specimens must authorize collection and testing of at least one other specimen type, such as urine, that is authorized under the Mandatory Guidelines for Federal Workplace Drug Testing Programs. In addition, the agency must provide procedures for how the alternate specimen can be used “in the event that a donor is unable to provide a sufficient amount of hair for faith-based or medical reasons, or due to an insufficient amount or length of hair.”
According to HHS, the guidelines “provide flexibility for federal agency workplace drug testing programs to address testing needs by allowing hair as alternative specimen type.”
The request for hair testing guidelines was part of the 2015 FAST Act. The American Trucking Associations and the Trucking Alliance have pushed for the Federal Motor Carrier Safety Administration to require hair testing as a method for detecting the use of a controlled substance.
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.
“The HHS guidelines make it clear that hair testing should not be used exclusively for Federal Workplace Drug Testing Programs,” said Jay Grimes, OOIDA’s director of federal affairs. “The guidelines acknowledge the concerns OOIDA and others have shared regarding hair testing, including color and texture bias, higher costs, faith-based and medical reasons, or simply having an insufficient amount of hair. Given these issues and the lack of scientific evidence that hair testing will reduce crashes, we will continue opposing the pursuit of any hair testing mandates.”
The OOIDA Foundation has been critical of the lack of evidence supporting the need for mandatory hair testing.
“The Trucking Alliance has yet to demonstrate that they have experienced a reduction in crash rates since their voluntary adoption of hair testing,” the OOIDA Foundation wrote in its one-page brief on the topic. “Neither have they presented evidence showing that their hair testing labs meet the rigorous standards of scientific methodology for testing or that their hair testing equipment and protocol has been consistent and unbiased.”
The Lawyers’ Committee for Civil Rights and Economic Justice has called hair testing “unreliable and discriminatory.”
According to HHS, the “two-test approach is intended to protect federal workers from issues that have been identified as limitations of hair testing.”
HHS 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 legal challenge.” The HHS is specifically requesting comments regarding the advances in the science of hair testing that could adequately address limitations involving hair color, hygiene and other factors that could affect the results. Once the notice is published in the Federal Register, comments will be able to be made at the regulations.gov website by using Docket No. SAMHSA-2020-0001.
ATA called the guidelines “weak.”
“As currently written, today’s proposal by HHS on hair testing is a tremendous disappointment for the trucking industry,” ATA President Chris Spear said in a news release.
“The administration allowed HHS to deliver a weak and misguided proposal more than three years late. Sadly, the positive impact this rule could have had to make both highways and truckers safer will have to wait. ATA will be working again with Congress to fix what HHS has failed to do – its job.”
While HHS has issued guidelines, FMCSA will still have to go through a rulemaking process before they could apply the guidelines to truck drivers. LL