OOIDA maintains opposition to hair testing mandate

September 26, 2022

Ryan Witkowski

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The Owner-Operators Independent Drivers Association is doubling-down with its stance on hair testing.

In a notice published in the Federal Register on Wednesday, Aug. 24, the Trucking Alliance asked the Federal Motor Carrier Safety Administration to amend regulations to allow hair testing results to be included in administration’s Drug and Alcohol Clearinghouse. Under the proposed amendment, carriers with knowledge of a positive hair test would be required to report the results to the Clearinghouse.

On Sept. 23, OOIDA filed public comments regarding the proposed amendment. The Association 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 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 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.”

In addition to opposing the amendment, OOIDA questioned why FMCSA even published the exemption request to begin with.

In August 2020, the Trucking Alliance submitted an exemption from 49 CFR 382.1 05, 382.301 and 382.305 with specific authorization for the release of and obtaining hair test results to comply with 49 CFR 391.23. At that time, FMCSA denied the exemption, citing their lack of any statutory authority. OOIDA said that since nothing has changed since the last time FMCSA denied the exemption, the outcome this time around should be a foregone conclusion.

“Since the denial in July 2021, we are not aware that FMCSA’s statutory authority regarding this type of exemption has changed in any way, and publishing the Alliance’s exemption request for 49 CFR 382.07 needlessly creates confusion for industry stakeholders,” the Association said.

Additionally, OOIDA said that while hair 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 Association 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