FMCSA denies petition for federal recognition of hair-sample drug testing

Original article published by Safety+Health

Washington — The Federal Motor Carrier Safety Administration has denied a petition calling on the agency to recognize hair samples as an alternative drug-testing method for truckers, reasserting a longstanding position that it lacks the statutory authority to do so.

Federal regulations mandate that truckers be tested for drugs by urinalysis. In August, the Trucking Alliance, a coalition of 11 organizations, requested that FMCSA 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.

The alliance writes in its petition 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.”

In a notice published in the Dec. 23 Federal Register, however, FMCSA maintains its stance on following Department of Health and Human Services’ hair-testing guidelines, which remain under review.

“By ignoring the requirement that FMCSA follow the HHS mandatory guidelines for hair testing … the applicant effectively argues that this provision be read in isolation,” FMCSA administrator Robin Hutcheson writes in the notice. “This approach disregards an accepted standard of statutory construction, which provides that statutory text must be construed as a whole.”

In an article published online Dec. 22 in the Owner-Operator Independent Drivers Association’s Land Line magazine, OOIDA Director of Federal Affairs Jay Grimes supports FMCSA’s decision.

“FMCSA’s swift denial of another Trucking Alliance exemption request highlights the unanswered questions and validity concerns with hair testing. Just because a small percentage of trucking companies opt to screen their drivers using hair testing does not mean the process should be used for the entire industry. OOIDA maintains our opposition to any hair testing mandate.”

Speaking to industry news resource FreightWaves in a report published online Dec. 24, Robert Moseley, an attorney for one of the firms representing the alliance, said petitioning HHS may be on the horizon.

“I think we’re in a position now where we may bring this FMCSA decision over to HHS directly and request a temporary change in policy until they formalize the mandatory guidelines. It’s just not an acceptable answer to say the industry has all these positive hair tests but they can’t be shared with anyone.”


McCraren Compliance can help you understand and comply with FMCSA, USDOT and ADOT and ensure your drivers and your vehicles operate safely and efficiently.

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A Notice for Federal Drug Testing Collection Sites & CDL Employers Regarding FMCSA Regulated Employees

First published by FMCSA

DOT | FMCSA Logo Banner with bottle of prescription drugs

The US Department of Transportation (DOT) has regulations governing drug and alcohol testing for certain transportation industry employees. These regulations help ensure that the traveling American public can feel safe in their day to day journeys. Part of the effective execution of these regulations relies upon drug testing collection sites. For Federal drug testing programs to operate efficiently and effectively, collection sites play an integral role in making sure the right individuals are administered the right tests.

There are several modes under DOT that have regulations about how employees in their specific part of the transportation industry should be tested. For the Federal Motor Carrier Safety Administration (FMCSA), one of the modes under DOT, only commercial driver’s license (CDL) holders, commercial learner’s permit (CLP) holders, or drivers that should have either a CDL or CLP should be given a DOT drug test with FMCSA specified as the DOT Agency on the custody and control form (CCF). Administering Federal drug tests to anyone other than these groups under FMCSA regulations creates an unnecessary administrative burdens on everyone in the Federal drug testing arena including, employers, drivers, medical review officers, third party administrators, and Federal staff. It is for this reason that FMCSA put together the, “Collection Site Notice” linked below. This notice provides important information for both collection sites and employers to use when determining who should be given what type of test.

Employers:  Please keep this notice handy and make sure that anyone involved in drug and alcohol testing at your company has a copy of it.

Collection Sites: Please review the attached notice with your staff. Also, we encourage posting the second page of the notice in your collection site, particularly in places where collections are actively taking place.

DOT and FMCSA drug and alcohol testing regulations make it safer for everyone in the United States to get around. This notice will help ensure that these regulations are implemented properly.

Collection Site Notice

FMCSA Drug and Alcohol Testing Program Website

FMCSADrugandAlcohol@dot.gov


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Freight-carrier alliance pushes for federal recognition of hair-sample drug testing

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.


McCraren Compliance can help you understand and comply with FMCSA, USDOT and ADOT and ensure your drivers and your vehicles operate safely and efficiently.

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DOT proposes use of electronic forms for drug and alcohol testing

First published by Safety+Health an NSC publication

Washington — The Department of Transportation is requesting public comment on a proposed rule that would allow the use of electronic forms and signatures for drug and alcohol testing.

According to an advance notice of proposed rulemaking published in the Aug. 5 Federal Register, DOT seeks to “provide additional flexibility and reduced costs for the industry while maintaining the integrity and confidentiality requirements of the drug and alcohol testing regulations.”

Currently, “employers and their service agents must use, sign and store paper documents exclusively, unless the employer is utilizing a laboratory’s electronic Federal Drug Testing Custody and Control Form (electronic CCF) system that has been approved by the Department of Health and Human Services.”

In the ANPRM, DOT asks for responses to 14 specific questions, including:

  • What are the practical impacts of authorizing a fully or partially electronic system?
  • What are the economic impacts of authorizing a fully or partially electronic system?
  • How would confidentiality and system security be maintained to prevent against data breach and data loss?
  • How many levels of authentication should be used to ensure the reliability and security of the signatures of program participants?
  • Are there any lessons learned or shared best practices available related to paperless non-DOT regulated testing?
  • Are there any limitations in either a paperless or electronic environment that impact program efficiency?
  • What measures need to be established to ensure, when documents are transmitted to multiple parties, each party is able to properly access and use the electronic system?

Comments are due Oct. 4.


McCraren Compliance can help you understand and comply with FMCSA, USDOT and ADOT and ensure your drivers and your vehicles operate safely and efficiently.

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Positive Drug Tests for U.S. Workers at Highest Level in 20 Years

First published by Safety+Health an NSC publication
Quest-Diagnostics.jpg
Photo: Sundry Photography/iStockphoto

Secaucus, NJ — Paced by a continuing increase in marijuana positivity rates, the positive drug test rate for U.S. workers reached its highest level in two decades in 2021, according to an annual analysis conducted by lab services provider Quest Diagnostics.

Researchers examined the results of more than 11 million samples taken last year for Quest Diagnotics’ Drug Testing Index from the combined U.S. workforce – both the general workforce and employees in safety-sensitive jobs who undergo federally mandated drug testing (e.g., pilots, truck drivers, train conductors and nuclear power workers). Overall, 4.6% of the samples tested positive – up from 4.4% in 2020 and the highest percentage observed since 2001, when it was also 4.6. That figure is more than 30% higher than the 30-year low of 3.5% recorded in 2010, 2011 and 2012.

For all workers, urine samples had a marijuana positivity rate of 3.9% last year – the highest ever recorded. That percentage is up 8.3% from 3.6 in 2020 and up 50% from 2.6 in 2016. Among the federally mandated, safety-sensitive workforce, urine samples had a marijuana positivity rate of 0.86% last year, up from 0.79% in 2020 – an 8.9% increase.

The industries with the highest overall positivity rate increases were transportation and warehousing (to 5.5% from 4.4%), other services (to 6.6% from 5.7%) and retail trade (to 7% from 6.2%). Mining (to 3.7% from 3.1%), construction (to 4.6% from 4.1%) and manufacturing (to 4.5% from 4.1%) all saw increases of at least 0.5 percentage points. Finance and insurance was the only industry not to show an annual increase, remaining at 3.3%.

Other key findings:

  • The overall positivity rate among the federally mandated, safety-sensitive workforce remained steady at 2.2% – but that’s up 4.8% since 2017.
  • For federally mandated, safety-sensitive workers, the positivity rates for amphetamines and cocaine increased 7.8% and 5%, respectively.
  • In the general workforce, positive urine tests for opiates fell 19%, and have fallen 56.4% over the past five years.
  • Post-incident positivity among the general workforce has increased 26% over the past five years. Post-incident urine tests for marijuana and cocaine were up 63.4% and 266.7%, respectively, compared with pre-employment testing.

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DOT proposes oral fluid drug testing as an alternative method

First published by Safety+Health an NSC publication

Washington — The Department of Transportation has issued a proposed rule that would revise industry drug testing protocol by adding oral fluid testing as an alternative to urine testing for commercial motor vehicle operators and other safety-sensitive transportation workers.

In a notice published in the Feb. 28 Federal Register, DOT claims the proposal “will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals” of the transportation industry’s drug and alcohol testing program.

The proposed rule stems from a Department of Health and Human Services final rule allowing federal agencies to collect and test oral fluid specimens as part of their drug testing programs. Under the rule, effective Jan. 1, 2020, agencies must initiate individual rulemaking to begin the process of allowing oral fluid testing as an option.

“The advantage of every oral fluid collection is that it will be directly observed, as opposed to most urine collections, which are unobserved,” DOT states. “While directly observed urine specimen collections have long been the most effective method for preventing individuals from cheating on their drug tests by substituting or adulterating their specimens, directly observed urine collection may only be done in certain circumstances due to employee privacy concerns. Unlike directly observed urine collections, an oral fluid collection is much less intrusive on the tested employee’s privacy.”

The agency adds that it is not proposing to eliminate urine drug testing.

HHS is still considering amendments to proposed guidelines – issued in September 2020 – concerning the use of hair samples as a method for drug testing federal employees and safety-sensitive employees in federally regulated industries, the notice states.

Comments on the proposed rule are due March 30.


McCraren Compliance can help you understand and comply with FMCSA, USDOT and ADOT and ensure your drivers and your vehicles operate safely and efficiently.

Call us Today at 888-758-4757 or email us at info@mccrarencompliance.com to schedule your free FMCSA Compliance Assessment.

FMCSA gives states 60 days to downgrade licenses of CMV drivers with drug, alcohol violations

First published by Safety+Health an NSC publication

Washington — State driver’s licensing agencies will have 60 days to initiate mandatory downgrades of commercial driver’s licenses and commercial learner’s permits once notified that a commercial motor vehicle operator has failed a drug or alcohol test, under a Federal Motor Carrier Safety Administration final rule set to go into effect Nov. 8.

FMCSA contends that the rule plugs both a “knowledge gap” and “loophole” in present regulations, which prohibit SDLAs from issuing, renewing, upgrading and transferring CDLs or CLPs for drivers who test positive for drugs or alcohol until those drivers complete FMCSA’s return-to-duty process.

“Currently, most SDLAs do not receive drug and alcohol program violation information about CDL or CLP holders licensed in their state,” the rule states. “Therefore, these SDLAs are unaware when a CMV operator is subject to the driving prohibition … and the CMV operator continues to hold a valid CDL or CLP despite the driving prohibition.”

SDLAs are required to consult FMCSA’s online Drug and Alcohol Clearinghouse, which provides real-time national data on CMV drivers who have failed drug and alcohol tests, before issuing or renewing licenses. They will have until Nov. 18, 2024, to comply with the new rule.


McCraren Compliance can help you understand and comply with FMCSA, USDOT and ADOT and ensure your drivers and your vehicles operate safely and efficiently.

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Notice of Enforcement Discretion Determination: Random Controlled Substance and Alcohol Testing

July 6, 2020

NOTICE OF ENFORCEMENT DISCRETION DETERMINATION:
RANDOM CONTROLLED SUBSTANCE AND ALCOHOL TESTING

On March 13, 2020, the President declared a national emergency under 42 U.S.C. § 5191(b), related to the effects of Coronavirus Disease 2019 (COVID-19). The Federal Motor Carrier Safety Administration (FMCSA) is aware that the motor carrier industry continues to experience operational disruptions caused by the COVID-19 public health emergency. As the Nation engages in a phased re-opening, the pace of return to normal operations will vary across the country. In some regions of the United States, motor carrier employers subject to controlled substance (drug) and alcohol testing under 49 CFR part 382 may be unable to comply with certain testing requirements due to the ongoing impacts of the emergency.

In recognition of these barriers to full compliance in some locations, the Agency may exercise discretion to determine not to enforce the minimum annual percentage random testing rates for drugs and alcohol, and the requirement that each employer ensure that the dates for administering random drug and alcohol tests are spread reasonably throughout the calendar year, as set forth in 49 CFR 382.305(b)(1) and (2) and 49 CFR 382.305(k), respectively. FMCSA emphasizes, however, that employers capable of meeting these requirements must continue to do so.

Employers must continue to select drivers at the required rate of 50 percent of their average number of driver positions for controlled substances, and 10 percent for random alcohol testing during the calendar year 2020.  If a test is unable to be completed due to the COVID-19 public health emergency, the motor carrier must maintain written documentation of the specific reasons for non-compliance. For example, employers should document closures or restricted use of testing facilities or the unavailability of testing personnel. Additionally, employers should document actions taken to identify alternative testing sites or other testing resources.

Similarly, employers who are unable to ensure that the dates for administering random controlled substances and alcohol tests are spread reasonably throughout the calendar year should document the specific reasons why they did not meet this requirement. For example, in addition to the lack of available testing facilities or personnel, there may be other factors, such as prolonged or intermittent driver furloughs due to the impacts of COVID-19.

The Agency issues this Notice to assure employers unable to fully comply with the requirements identified above that we will provide reasonable enforcement flexibility during this unprecedented pandemic, while also meeting FMCSA’s core safety mission. This Notice is not intended, and should not be perceived, as suspending the current random testing requirements.

This Notice pertains to employers’ noncompliance, during calendar year 2020, with the random testing requirements described above. The Agency may exercise enforcement discretion in connection with motor carrier investigations occurring in calendar year 2021.

This Notice:

  1. Acknowledges the current and anticipated disruptions to the administration of drug and alcohol testing caused by the COVID-19 public health emergency;
  2. Considers the interests of public safety and the continuing need to free up medical supplies and facilities for the diagnosis and treatment of COVID-19;
  3. Requires that employers who are capable of complying with 49 CFR 382.305(b) and 49 CFR 382.305(k) must continue to do so; and
  4. Creates no individual rights of action and establishes no precedent for future determinations.

Jim Mullen
Deputy Administrator
Federal Motor Carrier Safety Administration

COVID-19 pandemic: FMCSA extends waiver for certain preemployment drug tests

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Photo: DakotaSmith/iStockphoto

Washington — The Federal Motor Carrier Safety Administration has granted to recently furloughed commercial motor vehicle drivers a 90-day waiver from certain preemployment drug testing requirements, in response to the COVID-19 pandemic.

Effective June 5 and set to expire Sept. 30, the waiver amends current regulations requiring drivers to undergo preemployment drug testing and produce a negative test result to their employer before performing safety-sensitive functions, which includes operating a CMV. The regulation offers an exception to drivers who have participated in a testing program within the past 30 days and either:

  • Were tested for controlled substances within the past six months
  • Participated in the random controlled substances testing program for the previous 12 months.

Under the waiver, the exemption period is extended to 90 days from 30.

“As employers begin to recall drivers who were furloughed, laid off or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short time frame are significant, at a time when the commercial trucking and motor coach industry is facing unprecedented economic challenges,” the waiver states. “This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.”

FMCSA says offering “temporary regulatory relief from this burden” is possible “without negatively impacting safety.” Further, the agency “reserves the right to revoke” the waiver as a result of drivers’ involvement in incidents or employers’ inability to comply with terms.

The waiver comes in response to President Donald Trump’s Executive Order No. 13924 – Regulatory Relief to Support Economic Recovery, issued May 19.

Marijuana tops list of substances identified in CMV drivers’ failed drug tests: FMCSA

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Photo: vitpho/iStockphoto

Washington — The first report to use data from the Federal Motor Carrier Safety Administration’s new Drug and Alcohol Clearinghouse shows that, from the database’s Sept. 28 launch through May, marijuana was the most common substance found in positive drug and alcohol tests among commercial motor vehicle drivers.

The national online database – aimed at enhancing road safety by providing, in real time, the names of CMV drivers who fail drug and alcohol tests – identified 10,388 positive tests for marijuana. Cocaine (3,192) and methamphetamine (2,184) were the next most common substances detected.

Under federal regulations, motor carriers must conduct pre-employment drug testing in addition to random testing. Employees who test positive are prohibited from performing safety-sensitive functions, which includes operating a CMV.

According to the report, 19,849 CMV drivers had at least one violation and were unable to operate until completing the return-to-duty process – including 15,682 drivers who had yet to begin the process.

In an article published June 15 in the Owner-Operator Independent Drivers Association’s Land Line magazine, Amber Schweer, supervisor of OOIDA’s drug and alcohol consortium, said the legalization of marijuana for medicinal and/or recreational use in numerous states may be complicating the problem.

“There is a huge misconception that just because it is legal on the state level that it will be OK on the federal level,” Schweer said. “That is not the case.”

CBD products also figured to factor into the findings, Schweer added. In a Feb. 18 policy and compliance notice, the Department of Transportation cautioned that CBD products may contain higher levels of THC – the main psychoactive ingredient in marijuana – than DOT allows in a controlled substance. DOT added that CBD use is not a “legitimate medical explanation” for a safety-sensitive employee who tests positive for marijuana.

“There are so many companies that claim you won’t test positive using their product when in reality they cannot guarantee that,” Schweer said. “Drivers are not heeding the warnings that are put out there and, unfortunately, are facing expensive and detrimental consequences to their career.”

Overall, the clearinghouse observed 21,156 positive tests for substance misuse among CMV drivers during the reporting period. Multiple substances can appear in positive tests, FMCSA notes in the report, which does not include the total number of tests conducted. Future reports are set to be released monthly. Employers made more than 905,000 queries into the clearinghouse since it was fully implemented Jan. 6.