While the Federal Motor Carrier Safety Administration cannot grant an exemption regarding hair follicle drug testing until further action is taken by the U.S. Department of Health and Human Services, the agency is accepting public comments on a request from the Trucking Alliance to amend federal regulations surrounding drug testing.
In an exemption request published in the Federal Register Tuesday, the Trucking Alliance requests that FMCSA "amend the definition of actual knowledge to include the employer's knowledge of a driver's positive hair test, which would require such results be reported to the FMCSA Drug and Alcohol Clearinghouse and to inquiring carriers.” Trucking companies who have "actual knowledge" of a driver's positive urine drug test are currently required to report that test result to the Clearinghouse.
Currently, federal law requires truck drivers to be tested via a urine sample, and FMCSA said it lacks the authority to grant the exemption until HHS has taken certain action regarding hair follicle drug testing.
The FAST Act transportation bill, signed into law by President Obama in December 2015, allows for hair follicle drug testing as a DOT-approved method, but not until HHS establishes guidelines for testing. The FAST Act mandated that those guidelines be developed within a year of the FAST Act becoming law, but HHS did not publish proposed guidelines until September 2020. HHS has not yet issued a final version of those guidelines.
Hair testing generally offers a longer "look back" window of drug use compared to urine testing – about 90 days versus a range of a few days to a few weeks depending on the drug – and yields more positive tests for hard drugs like cocaine, opioids and meth. Fleets can use the results of hair testing internally to screen drivers, but are prohibited from reporting those results at the Federal level.
Despite not currently being able to take action, FMCSA is still requesting public comment on the Trucking Alliance’s request, which can be made here through Sept. 23.
The Trucking Alliance is made up of a group of large carriers, including Cargo Transporters, Dupré Logistics, Frozen Food Express, J.B. Hunt, KLLM, Knight Transportation, Maverick Transportation, Schneider, Swift Transportation, U.S. Xpress, and May Trucking Company. A study from the Trucking Alliance and the University of Central Arkansas released earlier this year claimed hair drug testing results from Trucking Alliance member carriers suggests that drivers actually use cocaine more than marijuana, and that hair testing would essentially double the number of drivers disqualified for drug use.
As of July 1, there are more than 135,000 drivers in FMCSA's Clearinghouse and 100,000 of them are still in prohibited status. More than 75,000 drivers haven't started the return to duty process.