Hair testing comment period closes Sept. 23

The Trucking Alliance wants FMCSA to allow motor carriers to report the results of a positive hair test to the Drug and Alcohol Clearinghouse.

Several dozen truck drivers have already submitted comments in opposition of the request, and a couple of days remain for others to do the same. FMCSA will accept comments through Sept. 23. To make a comment, click here or go to the Regulations.gov website and enter Docket No. FMCSA-2022-0127.

In a notice that published in the Federal Register on Aug. 24, the Trucking Alliance asked the FMCSA to amend the regulations, requiring carriers with knowledge of a positive hair test to report the results to the Clearinghouse. The FMCSA already acknowledged that it lacks the authority to grant the exemption, but the agency still opened the notice to public comment.

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 Trucking Alliance has been advocating for industrywide use of hair testing for years.

Even though it appears the request isn’t going anywhere, many truck drivers decided to let the agency know why it opposes hair testing.

“It’s invasive and shouldn’t even be allowed,” Robert Cole wrote. “A urine test is fairly noninvasive. Now we have to let them rip out our hair? No. They want to waste their money doing this – fine. These are carriers trying to find new and creative ways to squeeze smaller carriers by arbitrarily disqualifying drivers using a federal agency to give them an advantage of size. This should not be allowed at all.”

The Lawyers’ Committee for Civil Rights and Economic Justice has called hair testing “unreliable and discriminatory.”

Hair testing reveals that a person was in the environment of a substance, but it doesn’t prove that a person used the substance. As more states legalize marijuana and its use becomes more prevalent, it is reasonable to theorize that a truck driver could fail a hair test for being near someone who is legally using the drug and without ever personally ingesting the substance.

Another issue with hair testing is that a substance can remain in the follicles for months, so a positive test does not mean a truck driver is navigating the highways under the influence of a controlled substance. It only means that they were likely exposed to the substance – directly or indirectly – in the past few months.

“Why do these large trucking companies find it necessary to punish drivers for their PAST mistakes? That’s exactly what a hair follicle test does,” Justin Boring wrote. “It looks into a driver’s past drug use, not his current drug use. I can tell you with absolute certainty that if a driver is using drugs while being employed by a lawful trucking company or he is part of a drug consortium, that driver will fail. The current system is sufficient and effective to root out drivers that are actively using it.”

The Trucking Alliance argues that the exemption would improve safety and that FMCSA does have the authority to grant it.

“This exemption will reduce the likelihood of truck drivers who use illegal drugs from operating commercial motor vehicles until they complete rehabilitation,” the Trucking Alliance wrote in its comments submitted by Managing Director Lane Kidd. “The industry and public’s benefit will be a reduced risk of large truck accidents. FMCSA has the authority to grant this exemption, and the current definition of actual knowledge requires reporting under these circumstances.”

The OOIDA Foundation has been critical of 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 nor that their hair testing equipment and protocol has been consistent and unbiased.” LL