There are new developments warranting the attention of motor carriers and drivers when it comes to illegal drug use in trucking: the impact of marijuana legalization; the potential approval of hair testing; and the coming federal drug and alcohol clearinghouse.
The impact of marijuana legalization. Ten states, the District of Columbia, and recently Canada, have approved recreational use of marijuana. Many more states have legalized medical marijuana use under certain circumstances, while other states have decriminalized the possession of small amounts. The ready, legal availability of marijuana in several states must be coupled with a strong reminder for commercial truck drivers, that marijuana is still illegal, federally. It is still part of U.S. Department of Transportation (DOT) mandated drug testing (which includes mixtures and synthetic versions). Marijuana is even illegal to transport in interstate commerce. Colorado and California, two states that have approved recreational use, are also in the vanguard of roadside testing for drivers under the influence of pot. Whether undergoing a DOT drug test or a roadside stop, truck drivers should also remember that marijuana use remains detectable for seven days on the average.
The potential approval of hair testing. DOT drug testing is conducted by urinalysis. State laws in Colorado and California supplement roadside DUI procedures with the implied consent of drivers to a blood test. In recent years several motor carriers have implemented hair testing for employees. Hair testing is regarded by its proponents as non-intrusive, harder to adulterate and better able to detect long-term use of drugs, compared to urine tests.
In 2015, the Fixing America’s Surface Transportation Act (FAST Act) required the U.S. Health and Human Services Dept. (HHS) to issue scientific and technical guidelines for hair testing. Within HHS, that work is conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA), which sets the drug testing standards for federal agencies, including the U.S. DOT.
SAMHSA’s Drug Testing Advisory Board in June 2015 unanimously recommended SAMHSA pursue hair as an alternative specimen for federal workplace drug testing programs, while noting the need to address concerns over external contamination of hair and the impact of color. SAMHSA has yet to issue hair testing standards.
In response, Congress this year, in legislation addressing the opioid crisis, included a directive that SAMHSA report on its hair testing progress within 30 days. That legislation was approved and signed into law in late October, meaning hair testing may be on the cusp of approval for DOT drug tests. Until that time, however, motor carriers that conduct hair testing are prohibited from sharing the results with other fleets or with the coming federal drug and alcohol clearinghouse.
The coming federal drug and alcohol clearinghouse. The good news is that truck drivers as a whole are remarkably free of drugs Motor carriers are required to randomly test their drivers and owner/operators are required to participate in a drug-testing consortium. The minimum random test rate is set by law at 50% — half the drivers must be randomly tested by their fleet or consortium each year – but that test rate can drop to 25% when the Federal Motor Carrier Safety Administration (FMCSA) determines that less than 1% of all drivers tested positive for drugs three years straight. FMCSA lowered the minimum test rate to 25% in 2016, and it remains there today.
Still, there has long existed a loophole for the relatively few truck drivers who regularly use drugs: if they lie about their employment history and stay “clean” for a pre-employment drug test, the hiring motor carrier may not discover the safety risk.
In 2012 Congress required FMCSA to create a federal Drug and Alcohol Clearinghouse, where the results of drug tests will reside for five years or after a driver completes a return-to-duty test, whichever is later. Motor carriers will be able to query the clearinghouse to see whether a potential hire has a record of positive tests. On the other hand, driver privacy is protected and drivers can correct any errors. Many more details can be found on the agency’s website.
FMCSA expects to launch the Drug and Alcohol Clearinghouse by January 6, 2020.