‘Inconsistencies and inaccuracies’

The Owner-Operator Independent Drivers Association and the Sikh Coalition aren’t backing down in the fight to prevent hair testing results to be included in the Drug and Alcohol Clearinghouse.

In response to a petition from the Trucking Alliance, both groups filed formal comments against requiring carriers with knowledge of a positive hair test to report the results. Urinalysis satisfies the current drug and alcohol testing requirements. 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.

On Sept. 23, OOIDA told the Federal Motor Carrier Safety Administration that the proposal leans on testing that 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 in comments signed by President Todd Spencer. “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 Association cited a number of concerns regarding that form of testing, questioning its reliability due to contamination from the environment and the interference of cosmetic treatment on the analysis of hair.

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.”

“The Trucking Alliance’s exemption request does not ameliorate concerns of the discriminatory disparate impact of hair testing,” the Sikh Coalition and the North American Punjabi Trucking Association wrote in joint comments filed on Sept. 22. “The group asserts at length in its written request for an exemption that hair testing is more reliable than other forms of drug testing and argues that Congress’s desire that the federal government regulate hair testing compels FMCSA to grant its requested exemption.

“Notwithstanding, congressional intent does not negate research indicating that black and brown hair submitted for testing may be subject to a higher rate of false positives as discussed in the Jones federal appellate case and by Health and Human Services.”

The groups also raised concerns regarding racial and religious discrimination.

“Sikhs, Punjabis and other South Asians typically have brown or black hair and are already disproportionately subject to high rates of bias, such as employment discrimination and hate crimes,” the groups wrote. “Our organizations cannot support initiatives that potentially subject our already vulnerable communities to a greater likelihood of discrimination – particularly given that so many Sikhs and South Asians derive their livelihood from commercial trucking.”

The groups also noted that practicing Sikhs do not cut their hair for religious reasons and that companies would be required to offer religious accommodations.

Additionally, OOIDA said that while that form of testing has the ability to determine drug use over a period of time, it lacks the ability to determine the time of use – most importantly if the use occurred while operating a commercial vehicle.

“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,” the OOIDA wrote. “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 implemented.

“OOIDA agrees that FMCSA lacks the statutory authority to grant the alliance’s exemption request, and we maintain our opposition against the advancement of any hair testing mandate.” LL

Senior Editor Mark Schremmer contributed to this report.