Drug Testing Using Hair Tests Affects Commercial Truck Drivers

The Omnibus Transportation Bill that Congress passed December 4, 2015, includes a provision that authorizes hair testing when conducting pre-employment drug tests for truck drivers, as well as for random testing if the employee was subject to a hair test for pre-employment. The bill, known as H.R. 22, requires the department of Health and Human Services (HHS) to issue scientific and technical guidelines for hair testing within one year.

Assuming that HHS is able to produce the guidelines within a year, implementation of hair testing under the Federal Motor Carrier Safety Administration will still require the Dept. of Transportation to write new procedures that will incorporate hair testing. Our best guess is that implementation is approximately two years away.

The hair test provision of the bill has a lot of opposition from unions and the ACLU, whose objections are based on invasion of privacy, which they say are uncertain scientific and forensic evidence supporting hair testing, and possible racial bias in test results.

That Congress would make legislation concerning drug testing is not unusual – after all, it was another Omnibus Transportation Act over 20 years ago that caused the creation of the DOT alcohol testing regulations that we know today. That Congress would legislate hair testing in particular, and only for truck drivers, is a bit unusual. HHS, through the Substance Abuse and Mental Health Services Administration (SAMHSA) and the Drug Test Advisory Board is the usual avenue for adding new drug testing methods. SAMHSA has been moving forward this year with proposed guidelines for oral fluid testing. SAMHSA was only beginning to consider hair testing. Those that object to this legislation seem to have a valid point: why not let HHS take the lead in determining suitable alternative specimens for drug testing based on sound scientific principles?

Another interesting twist is that the legislation as written applies to commercial truck drivers. If hair testing becomes a reality for truck drivers, will other modalities follow suit for DOT testing? Stay tuned to see how this issue plays out over the next year or two. You can read H.R. 22 in its entirety or by starting on page 236, sections 5402-5404 for that part of the legislation covering hair testing.