A group of large motor carriers has applied to the Federal Motor Carrier Safety Administration for an exemption from federal drug testing regulations. The Trucking Alliance wants an employer’s knowledge of a driver’s positive hair test to be reported to FMCSA’s Drug & Alcohol Clearinghouse and to other motor carriers inquiring about that driver.
Members of The Trucking Alliance already utilize hair testing for their truck drivers. They believe that hair testing can detect the “lifestyle” drug user in a way that urine testing cannot. But because hair testing is not yet federally approved these motor carriers cannot share hair test results with the clearinghouse or with other carriers. They must also continue to conduct and report urine tests.
Other groups in the trucking industry believe that the detection of drugs in hair follicles only proves that the driver was exposed to the prohibited substances and not that the driver ingested the drugs. The prevalence of legal cannabis in our society, they argue, makes exposure quite common even when marijuana remains a prohibited substance for truck drivers.
FMCSA is seeking public comments on the proposal from The Trucking Alliance. Comments are due by Sept. 23, 2022.
Congress previously weighed in on the issue of hair testing for drugs. In 2015, Congress passed the Fixing America’s Surface Transportation Act (FAST Act). This legislation directed the U.S. Department of Health and Human Services (HHS) to “issue scientific and technical guidelines for hair testing as a method of detecting…” the use of drugs by truck and bus drivers.
A law from 1991 mandated that the U.S. Department of Transportation follow HHS guidelines on drug testing. However, in the FAST Act, Congress said that its call for HHS action did not “… authorize the use of hair testing as an alternative to urine tests until (HHS) establishes federal standards for hair testing.”
FMCSA cites the FAST Act in noting that the agency cannot grant the exemption request until such time as HHS issues scientific and technical guidelines for hair testing. On the other hand, by law FMCSA must post exemption requests and take public comments.
So, given that FMCSA cannot currently grant the exemption request, is this Federal Register notice a pointless exercise? Not entirely. For several years, FMCSA has taken steps to better account for and control drug use in trucking. One of those measures, oral fluids testing, is now in the final rule stage for DOT agencies. Comments received on hair testing may help FMCSA prepare for possible approval by HHS. For its part, The Trucking Alliance has found another means of raising awareness of hair testing in the trucking industry and pressing HHS for action.
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