First published by Safety+Health an NSC publication
Washington — The Federal Motor Carrier Safety Administration is seeking public comment on a freight-carrier alliance petition regarding the use of hair samples as a drug-testing method for commercial motor vehicle drivers.
Under federal regulations, CMV operators must be tested for drugs by urinalysis. According to a notice published in the Aug. 24 Federal Register, the Trucking Alliance, a coalition comprising 11 organizations, is asking FMCSA to amend the definition of an employer’s “actual knowledge” of a driver’s positive drug test – which requires the employer to report the results to the FMCSA Drug and Alcohol Clearinghouse – to include knowledge of a positive hair test.
“We think that every employer should at least know that this person failed a hair test,” Trucking Alliance Managing Director Lane Kidd told Safety+Health. Kidd added that, among the thousands of positive drug tests via hair testing the alliance has recorded through the years, “not one single person has ever filed a lawsuit against the company for falsely accusing them of using drugs.”
In the notice, FMCSA states that it lacks the statutory authority to grant a hair follicle exemption request “until the Department of Health and Human Services has taken certain action.” In September 2021, the Substance Abuse and Mental Health Services Administration, part of HHS, requested comment on proposed guidelines on the use of hair samples as a method for drug testing federal employees and safety-sensitive employees in federally regulated industries, including CMV operators.
FMCSA’s Fixing America’s Surface Transportation Act of 2015 required SAMHSA to report to Congress on its progress in developing and completing guidelines for hair sample drug testing. Congress mandated HHS establish hair-testing guidelines by Dec. 4, 2016, but the department didn’t announce until June 2019 that it had forwarded the proposal to the White House Office of Management and Budget for review.
“We look at the ‘actual knowledge’ argument as one that FMCSA can hang its hat on regardless of if HHS ever proposes guidelines or not, even though Congress has mandated them to,” Kidd told S+H. “We think the ‘actual knowledge’ angle is sufficient, and FMCSA could actually grant the petition, utilize actual knowledge and go forward.”
In its petition, the alliance contends that “public safety is improved through the use of hair testing because drug use is more accurately detected, and drug users are removed from the operation of commercial motor vehicles.”
The American Trucking Associations has long advocated the use of hair samples as a drug-testing method for CMV drivers.
However, in an article published online Aug. 23 in the Owner-Operator Independent Drivers Association’s Land Line magazine, OOIDA Director of Federal Affairs Jay Grimes calls the alliance’s petition “misguided,” citing environmental contamination and variances in hair types among long-standing faults of hair testing.
“Given the many uncertainties and lack of safety improvements from hair testing, there is no sound reasoning for federal agencies to adopt any sort of hair-testing mandate for drivers,” Grimes said. “This is in large part why FMCSA does not have the statutory authority to even grant the exemption, as rightly mentioned in the notice.”
Comments on the petition are due Sept. 23.
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