Advocates of hair testing for truck drivers say that Health and Human Services’ proposal could keep lifestyle drug users from getting behind the wheel of a big rig, but others say there are problems. The push for hair testing became stronger after an Amtrak train carrying Republican congressional members hit a refuse truck at a train crossing. Post-testing after the crash revealed the truck driver had been under the influence of marijuana and the pharmaceutical drug gabapentin.
Obviously, when congressional members are involved, there is likely to be legislation. The proposal from HHS will allow hair testing to be used along side urine testing when ensuring truck drivers are compliant with federal drug-testing requirements. The goal is to ensure safety-sensitive workers, such as truck drivers and those handling hazardous materials, are drug-free.
Although many trucking companies today use hair testing, the testing they use might not be up to federal standards. In those cases, trucking companies must pay twice to test. But there is something else at play here, and that is the clearinghouse itself. Why? Because hair testing is not included in the new federal drug and alcohol clearinghouse.
The Industry Weighs In
Because hair testing is not included in the clearinghouse, truck drivers who want to avoid hair tests can go apply to a fleet that does not include it as part of its onboarding process. And those fleets that hire them would have no way of knowing if they failed a hair test at another trucking company.
Unfortunately, not everyone is on board with the change. The proposal as it stands has been panned by the American Trucking Associations (ATA) as “weak” and “misguided.” While the ATA has in the past praised the moves the Trump admin has made to remove regulations and tackle difficult environmental and labor issues, it strenuously disagrees with this one.
Both the ATA and other trucking advocacy organizations consider the proposed mandatory guidelines problematic. Under the rules, executive branch agencies and those they regulate will be mandated to collect and test a hair specimen as part of their comprehensive drug testing programs. This includes both random and pre-employment testing.
However, the mandate also states that a federal agency choosing to test hair specimens must authorize collection and testing of at least one other specimen type, such as urine or oral fluid, that is authorized under the Mandatory Guidelines for Federal Workplace Drug Testing Programs. This is a critical difference and could represent a big cost for trucking companies.
HHS Replies to the Concerns
HHS, meanwhile, calls the two-test approach a method for protecting health workers from issues identified as limits on hair testing and other legal problems. They go on to cite specific examples where employment actions were taken based on hair tests alone. Without other evidence to corroborate the tests, they could be vulnerable to legal challenges.
One thing to consider is that Congress has required HHS to develop the rule and they have done so because urine testing can be easily defeated. Hair tests are much harder to fool. But here are other problems at play here. The proposal only allows the use of hair testing to identify negative tests. In this way, all positive tests must be confirmed using the system Congress says is deficient!
Hair testing has a longer detection window, so it makes it a superior method for detecting those who take drugs recreationally or as a lifestyle. The problem is when you require a second test to validate the hair test, it eliminates the benefit of hair testing in the first place. Most in the industry are concerned about the requirement to have an alternate specimen ready in the event of a failure.
Trucking Companies are Skeptical
Motor carriers already using hair testing in addition to their normal DOT drug testing programs would find themselves burdened with an extra test and potential test discrepancies if the urine test comes up negative while the hair test came up positive. Never mind the fact that trucking companies already suffer under a heavy regulatory burden.
Many consider these new guidelines a de facto proposal to force them to use hair tests in employment decisions. What kind of impact might this have on the operational or financial performance of the companies who are being forced to do it?
Still, even though this is being met with healthy skepticism, hair testing can be as much as five times as effective in identifying drug users because of its longer window of detection. As a result, this will have a significant impact on carriers’ ability to keep drug users out from behind the wheel of their trucks.
Critics do note that hair tests can have a high rate of false positives due to certain drugs being absorbed into hair from the environment. This is especially true for marijuana smoke. Truck drivers could be penalized for simply being in the presence of such smoke without actively partaking in it.
Safety Groups Have an Opinion
Other industry advocacy groups are weighing in, including safety groups such as the Alliance for Driver Safety and Security, otherwise known as The Trucking Alliance. This group has long advocated for hair testing other safety-related technologies and policies. In highlighting their support for this mandate, they point to research that shows that over 300,000 truckers are operating impaired at any given moment.
Completed by the University of Central Arkansas, the study compared pass/fail rates or urine and hair drug screens using just over 151,000 pre-employment tests. It found, that out of the fifteen trucking companies it surveyed, only 0.6% failed the urine tests, while 8.5% failed the hair test. That is a huge discrepancy.
Safety groups also dispute the concerns made by skeptical fleets, pointing to high success rates and low overall rates of false positives when it comes to hair testing. Those involved in the University of Arkansas research study content that if testing is done properly, the results are generally spot on and are reliable.
Still, the word is not yet final. In their proposal, HHS said that they said they were “requesting comments, including support from recent peer-reviewed scientific literature, on advances in the science of hair testing that adequately address these limitations and elucidate the extent to which hair color, external contamination and other factors (e.g., hair treatments, hygiene) will affect hair tests and the interpretation of hair drug test results.”
HHS is trying to put forward that they are all for scientific debate on the topic. They still contend that hair testing works and should be enforced. Now, trucking companies must wait to see how this all plays out. Many are asking themselves what is next.
Looking Ahead on Hair Testing
This process has not been easy. In fact, according to HHS, they have been working on this topic for the better part of two decades. They still have some ways to go, however, before they finalize the rule. They are giving motor carriers and other interested parties the ability to comment on the proposal before it is finalized.
They also state they are open to making significant changes once they have received feedback. Once the process is complete, the DOT will go through the standard rulemaking process to allow motor carriers to begin utilizing hair testing. The industry should expect to see this process play out over the next couple of years.
But don’t expect those who are unhappy with the rule to go quietly into the night. The ATA and Trucking Alliance seem to be willing to appeal to Congress for an alternative solution. In its statement on the issue, the ATA said in closing that they will be “working again with Congress to fix what the HHS has failed to do – its job.”
The Trucking Alliance came out with a similar statement, specifically mentioning that Congress must step in to ensure hair tests appear in the Drug and Alcohol Clearinghouse. Without this, most employers will not know if a truck driver previously failed a hair test. The system as it is right now is too byzantine, claim these industry advocates. Will this feeling be reflected in the final rulemaking process? At this point only time will tell.