New regulation has passed in both Houses of Congress with near-unanimous bipartisan votes. The legislation comes after DHS failed to provide hair testing protocols for 3 years since the 2015 FAST Act, which allowed the FMCSA to start accepting hair sample drug tests for truck drivers. First, the Department of Homeland Security must provide guidelines for how those tests should be implemented, as well as why they have been delayed, and then develop a schedule for when it plans to complete them. The DOT is then to follow.
The bill, called the Opioid Crisis Response Act of 2018, directs the Substance Abuse and Mental Health Services Administration to report to Congress on its progress creating and issuing guidelines for hair testing. The hair testing for illegal drug use has been long sought by trucking lobbies.
The bill was signed last Wednesday by President Trump. Hair follicle testing can detect traces of illegal substances as far back as 90 days from ingestion, compared to 2-3 days with urine samples. The new legislation is a big step toward hair follicle testing for drivers, and many carriers believe could have a devastating impact on the driver market.
“The 688 page law makes only two references to hair testing. One paragraph directs the HHS Secretary to report back to the Senate Commerce Committee within 60 days, on the agency’s progress in completing its hair test guidelines. My understanding is the guidelines are completed and HHS will soon submit the guidelines to the Administration at OMB for review, likely before the 60-day report is due,” Lane Kidd, Managing Director of The Trucking Alliance, tells FreightWaves.
“Second, the law directs HHS in writing its guidelines to make certain that a person who might be exposed to drugs in his/her hair doesn’t register a false positive. All labs wash hair before testing so that’s easily achieved,” says Kidd.
“Nothing, however, requires the USDOT to begin a rule making that will recognize a hair test in lieu of a urine exam. The FAST Act only directs HHS to write guidelines that the USDOT can use, should it proceed to officially recognize hair testing.”
“The Trucking Alliance will actively encourage DOT to proceed with one as soon as possible, however. Because our data show that a urine exam is missing as many as 90% of all opioid and illegal drug abusers who are applying for work as a truck driver. That’s a danger to the public and a risk to motor carriers. The trucking industry has an opioid crisis and we must reform the system to make sure that opioid abusers are not operating large trucks on the nations highways.”
“Skeptics who point to low positives on post accident tests overlook that drivers are only tested for alcohol at the scene and by the time they get around to showing up for a urine exam, the drugs are out of their system,” concludes Kidd.
A 2017 study from the Governors Highway Safety Association found the 22% of drivers tested positive for some drug or medication across the board. A Morgan Stanley report also notes that by 2020 driver drug testing information is proposed to be stored in a centralized database to ease record sharing between carriers, which means that one test failure could keep a driver out of the market for all carriers.
Federal law already requires trucking companies to drug test new drivers and randomly test existing drivers, but only urinalysis is recognized by the Substance Abuse and Mental Health Services Administration as a proven drug testing method. Carriers that want to hair-test drivers must still do urinalysis as well. Proponents of hair testing argue that it has advantages, including a longer detection window, easier collection, and results that are harder to fake.
Also included in the legislation are reporting requirements on the development of the Drug and Alcohol Clearinghouse and a deadline for completing work on oral fluids testing.
The American Trucking Associations said in a statement that it has “long advocated for, and worked closely with Senate Commerce Committee staff” to secure the hair-testing provisions in the legislation.
“Our fleets need to depend on the most accurate, reliable and failsafe drug testing methods available today, and this legislation pushes the federal government to recognize those means of testing,” said Bill Sullivan, ATA’s executive vice president of advocacy. “We thank our champions in Congress—Senators Thune and Fischer and Representatives Crawford and Fleischmann—who have played a pivotal role in advancing this important safety issue.”
ATA noted that the FAST Act highway bill of 2015 had required the Department of Health and Human Services to issue scientific and technical guidelines for hair testing by December 2016, a deadline that was missed.