Hair testing request attracts public comment

The Trucking Alliance’s request regarding hair testing seems to be going nowhere as the Federal Motor Carrier Safety Administration lacks the authority to grant it.

However, that hasn’t dissuaded people in the trucking industry from weighing in on the topic.

In a notice that published in the Federal Register on Wednesday, Aug. 24, the Trucking Alliance asked the FMCSA to amend the regulations by requiring carriers with knowledge of a positive hair test to report the results to the Drug and Alcohol Clearinghouse. More than two dozen organizations and individuals have already submitted comments about the request.

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.

The 2015 FAST Act requested that the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration release guidelines on hair testing. In September 2020, the agency acknowledged the limitations of hair testing. For instance, the agency 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.”

FMCSA told the Trucking Alliance that it does not have the authority to grant the request but still allowed the public 30 days to provide comments.

The notice generated comments on both sides of the argument.

Truck driver Elvis Kaiser said that hair testing is an invasive procedure.

“I disagree with this method if checking for prior drug use,” Kaiser wrote. “I once joined Knight Transportation. Their safety director … cut my hair. She was a short female. She pretty much pull(ed) my head off my shoulders and cut a very large plug of my hair out.

“Good drivers who don’t use controlled substances shouldn’t be subjected to this discomfort. Have science improve their urine testing procedures. You say there’s a shortage of Class 8 drivers, yet you want to subject people like me this terrible method of testing. I tell you now, I won’t ever be subjected to this test ever again.”

Midwest Dairy Transport said it has been using hair samples for drug testing for six years.

“We fully support the efforts of the Trucking Alliance,” Midwest Dairy wrote. “For every positive urine test, there are eight or more positive hair tests. One individual applied to work here, was urine tested four times over the course of a year, passed all four urine but failed the hair tests. He was not hired. We have an obligation to use the most effective test methods to get to the truth of whether or not someone has a substance issue.”

The OOIDA Foundation has been critical of the lack of evidence supporting the need for 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.”

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 this alternative testing method 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.

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, US Xpress and May Trucking Co.

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. LL