Hair loss

The Trucking Alliance has been denied again, but the fight is expected to continue.

For years, the trucking group has pushed to get hair testing results included in the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse. And for years, the Trucking Alliance has been told no.

The most recent rejection published in the Federal Register on Dec. 23. In the notice, FMCSA 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.

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.”

In the denial notice, FMCSA 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. “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 OOIDA Foundation contends that hair testing, with its flaws and potential bias, should not brand a driver as a drug abuser any more than defining a driver that drinks alcohol on their days off as an alcoholic.

The Sikh Coalition also 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.

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.”

Despite being denied again, expect this fight to continue. If Health and Human Services completes a final rule regarding hair testing, the Trucking Alliance will likely file another petition with FMCSA. LL

Land Line’s Ryan Witkowski contributed to this report.