An ongoing saga related to drug testing of commercial truck drivers is entering a new chapter.
Intertwined Legislation and Regulations
In 2015 Congress passed legislation entitled the Fixing America’s Surface Transportation Act. Certain stipulations of the FAST Act required that the Department of Health and Human Services issue guidelines for hair-testing for drug usage. Those guidelines were due within one year of the enactment of the legislation.
An additional aspect of the FAST Act made changes in earlier legislation, the 1991 Omnibus Transportation Employee Testing Act. That law set the standard that DOT would follow guidelines established by HHS concerning scientific and technical testing processes.
The Fast Act amended this component of OTETA by adding a requirement concerning the use of hair testing. This change tasked the Federal Motor Carrier Safety Administration to allow such tests as an alternative to urine testing for both pre-employment and random drug testing under specific conditions.
It was not until September 2020 that HHS responded to the earlier requirements, and the agency did so by proposing its severely criticized Mandatory Guidelines for Federal Workplace Drug Testing Using Hair (HMG). While opponents have voiced a series of concerns, the final HMG guidelines have not yet been issued, much less implemented.
As part of the comment period, the Trucking Alliance filed its comments and a petition seeking an exemption from the proposed FMCSA regulations. The Alliance contended that the proposed regulations would give employers the ability to use positive hair tests as defined by the “actual knowledge” consideration. That would, in turn, mandate that those results would be reported to both inquiring carriers and the Drug and Alcohol Clearinghouse maintained by FMCSA.
Some of the industry’s largest carriers are members of the Trucking Alliance, including KLLM Transport Services, Swift Transportation, Knight Transportation, and U.S. Xpress.
In responding to the petition, the Alliance was told that the DOT could not exercise the authority to grant the exemption until certain decisions and actions were implemented by HHS. The FMSCA stated, “…allowing the use of a non-DOT drug test to serve as the basis for an actual knowledge report under 49 CFR part 382 is contrary to OTETA.”
Confusion from Overdue Clarification
The Trucking Alliance in turn responded that FMCSA had misconstrued the objective of its petition. Seeking to clarify, the Alliance made it clear that there was no desire to circumvent the anticipated – and much overdue – guidelines from HHS for drug testing. Rather, it went on to use the previous decisions relating to DUI reporting as an example of what it is seeking to achieve. Carriers in the Alliance still intend to utilize both hair and urine testing while waiting on the final rules.
Under the existing guidance from FMCSA pertaining to DUI citations, carriers must report any driver receiving such citations, regardless of whether or not they are convicted. This action is intended to prevent drivers from seeking employment from other carriers while awaiting trial or resolution of their citation.
The Alliance indicated in its follow-up that their goal was the same relative to the hair testing: preventing under the “actual knowledge” consideration drivers from being on the road before completing the required rehabilitation.
The window for additional comments closed on September 23. Carriers and drivers alike are awaiting the final guidelines as the ambiguity has been an ongoing point of concern.
A More Powerful Test
Those who advocate for hair testing contend that it provides a more effective method for detecting illegal drug use. They point out the many ways some drivers have found to cheat on urine tests. The other aspect of hair versus urine test is the time factor. Simply abstaining from drugs while suspecting a random drug test will succeed with urine testing. However, trace amounts of the drugs will remain in the hair shaft and follicle for an extended time, up to 90 days, allowing detection in a test.