Feds expected to present modified hair testing proposal ‘sometime this summer’

In May, the U.S. Department of Transportation announced changes to the transportation workplace drug and alcohol testing programs, adding oral fluid collection as a means of testing. As the U.S. Department of Health and Human Services works to certify laboratories to conduct oral fluid collection, the possibility of another addition to those testing methods may be on the horizon.

According to the Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions, a supplemental notice of proposed rulemaking regarding the inclusion of hair testing in the program is expected to be filed by HHS and the Substance Abuse and Mental Services Administration as early as this month.

In September 2020, HHS released a notice of proposed rulemaking that would establish hair testing guidelines for Federal Workplace Drug Testing Programs. The initial proposal sought to “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 pre-employment and random testing.”

The comment period for the initial proposed rulemaking closed 60 days later, with stakeholders left to wait and wonder the fate of the proposal.

Jay Grimes, director of federal affairs for the Owner-Operator Independent Drivers Association, says the impending publication of a supplemental notice of proposed rulemaking indicates the wait for answers is still a ways off.

“The initial guidelines sought additional information on unresolved scientific and technical issues relating to hair testing and did not mandate the use of hair testing for federal agencies, including DOT,” Grimes told Land Line. “HHS has now announced they will reissue these guidelines as proposed rather than as final to seek further comment on these pending concerns and to ensure that any hair testing guidelines align with urine/oral-fluids procedures. This could delay DOT’s ability to formally implement any hair testing protocols until the guidelines are finalized.”

As far as when the notice will publish, the regulatory agenda estimates it to be filed before the end of June. Grimes says those projections are rarely met, and expects the notice to be published “sometime this summer.”

Once the supplemental notice has been published, a public comment period will follow to allow interested stakeholders to offer feedback on the proposal.

In November 2020, OOIDA filed comments opposing the inclusion of hair testing. The Association cited a number of concerns regarding hair testing, questioning its reliability due to contamination from the environment and the interference of cosmetic treatment on the analysis of hair. Furthermore, the Association says that variances in hair types can create issues when it comes to testing.

“Hair shape, size, color, texture, formation, etc., varies by race, sex, age, and position on the scalp. Differing portions of the scalp hair can even be dormant at any given time and do not reflect drug use,” the Association wrote in comments signed by president Todd Spencer. “There is no shortage of research illustrating these concerns. Hair tests can lead to false positive results because certain drugs can be absorbed into hair.”

Exactly what will change from the initial proposal to the supplemental version is still unclear. However, history is likely to repeat itself, with the Association expected to file comments in opposition to the modified proposal.

“Just because a small percentage of trucking companies opt to screen their drivers using hair testing does not mean the process should be mandated for the entire industry,” OOIDA wrote in its 2020 comments. “Companies that must resort to extreme measures to compensate for excessive turnover rates may find hair testing appropriate; however, that does not mean their methods, which are not standardized, should be mandated.” LL