Trucking Industry Group Seeks to Conduct Drug Screening Utilizing Hair Testing
The Federal Motor Carrier Safety Administration (FMCSA) has requested public comment on an application for exemption submitted by The Trucking Alliance that would allow trucking companies to use hair testing in addition to urine testing for random drug tests and pre-employment screenings. The exemption also asks that carriers be allowed to publish the results of those tests into the FMCSA's Drug and Alcohol Clearinghouse, a database that employers must review when hiring a driver and annually during a driver's employment.
The request for public comment is interesting both substantively and procedurally. The Trucking Alliance, whose members include major trucking companies, filed for a similar exemption in 2020, which the FMCSA denied because it lacked statutory authority to grant the relief sought. Drug policy matters fall under the jurisdiction of the U.S. Department of Health and Human Services (HHS), and the FMCSA is required to follow HHS's Mandatory Guidelines regarding testing. Currently, urine testing is the only permitted method for screening truck drivers and other federal employees. The FMCSA does not appear to have changed its opinion about its lack of statutory authority to grant the relief sought or be motivated by a desire to better publicize a safety concern. Rather, the FMCSA seems to have determined that it has a statutory obligation to seek public comment even when it believe it does not have the authority to grant the request.
In 2015, HHS, through the enactment of the Fixing America's Surface Transportation Act (FAST Act), was tasked with issuing guidelines on hair testing for drugs. In 2020, HHS issued proposed guidelines addressing hair testing, which were widely criticized by the trucking industry due to a requirement that if an employer were to elect to do hair testing, it must also collect one other specimen, e.g., urine or oral fluid. HHS is currently working on revising its proposed guidelines, but it remains unclear whether it will eliminate the need for secondary testing. Citing Jones v. City of Boston, 845 F.3d 28 (1st Cir. 2016) and Thompson v. Civil Service Com'n, 90 Mass.App.Ct. 462 (Oct. 7, 2016) in the proposed guidelines, HHS expressed concern that employment based on hair testing alone, without other corroborating evidence, may be vulnerable to legal challenge. In both cases, the Courts found that reliance on hair testing alone was not sufficiently reliable to be the sole basis for termination. One of the primary issues with hair testing is that a person may test positive if they were in an environment where a substance was present, but it does not necessarily mean that they have used the substance.
The trucking industry, however, has been utilizing hair testing for employment for several years and contends that hair testing is more reliable and accurate in detecting regular drug use as opposed to urine testing. It also eliminates certain vulnerabilities in collecting samples, i.e., urine testing does not allow the person collecting the sample to observe the supply of urine. Trucking companies may use hair testing to make their own determination as to whether a driver is fit to drive, but a hair test alone does not subject the driver to the FMCSA regulatory processes that apply to a positive urine test, such as being disqualified from driving until a return to duty protocol has been completed. Positive hair tests may also not be reported to the drug and alcohol clearinghouse, so if a company fires a driver based upon a hair test, the prospective employer would not be able to tell from the clearinghouse that the driver had a positive drug test. This reduces the effectiveness of the clearinghouse, which was intended to aid in information sharing between employers.
Potential Effects Unclear
The deadline for comments closed Sept. 23, 2022. It remains unclear what, if any, impact the comments could have to change drug testing requirements in the future. HHS's initial proposed guidelines show a hesitancy to allow employers and federal agencies to solely rely on hair testing without corroborating evidence, and legal precedent finding hair testing unreliable on its own may do little to persuade HHS to change its initial proposed guidelines.