Robin Hutcheson argues that federal statute prevents her from approving a drug-test exemption that some of the nation’s largest trucking companies argue would have kept thousands of drug-abusing drivers off the roads.
The Federal Motor Carrier Safety Administration chief stated in a public filing on Thursday that she was therefore obligated to deny an application filed by a group of 11 major truckload operators seeking an exemption from federal regulations to require positive hair tests be reported into FMCSA’s Drug and Alcohol Clearinghouse.
Those tests, administered by carriers either randomly to their current drivers or as part of preemployment screening, would have been made available to other carriers querying the database for drug test information on potential hires.
But Hutcheson affirmed what her agency had already asserted in August when the carriers’ application was posted for public comment: FMCSA lacks the authority to amend the rules.
“The applicant asserts that FMCSA does have the statutory authority to grant its exemption request, citing [federal code] which requires that FMCSA adopt regulations permitting pre-employment hair testing for controlled substances as an alternative to urine testing,” Hutcheson noted in her decision.
However, “by ignoring the requirement that FMCSA follow the HHS [Health and Human Services] mandatory guidelines for hair testing … the applicant effectively argues that this provision be read in isolation. This approach disregards an accepted standard of statutory construction, which provides that statutory text must be construed as a whole.”
Alliance considering HHS as next move
The decision, to be published in the Federal Register on Friday, marks the second time in three years that the carrier group, known as the Trucking Alliance, has failed to get FMCSA to tighten its drug-screening requirements prior to formal approval of mandatory guidelines from HHS. Those guidelines, issued in September 2020, are still under review.
Asked to comment on the decision, Robert Moseley of Moseley Marcinak Law Group, one of the firms representing the alliance, said it seems FMCSA feels hamstrung by the provision that it be required to wait on HHS before allowing for hair testing. Moseley points out that the provision language was part of a conference report accompanying the statute and therefore does not have the force of law.
“I think they feel powerless to deal with anything having to do with hair testing because of that provision,” Moseley told FreightWaves.
“But 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.”
Big-carrier statistics support hair testing
Those in support of the Trucking Alliance, including the Institute for Safer Trucking (IST), contend that despite statutory obligations, FMCSA also has a mission to make trucking safer.
“In pursuit of this, the [FMCSA] should empower motor carriers to make the safest hiring decisions,” IST stated in joint comments filed with Road Safe America. “The Trucking Alliance and its members have demonstrated that hair testing can help achieve this by effectively preventing unsafe drug-using drivers from getting into their trucks and on our roads.”
One of those members, J.B. Hunt (NASDAQ: JBHT), has been using hair testing as a matter of company policy since 2006. Over those 16 years, 191,972 truck driver job applicants submitted to both the urinalysis test currently required by the U.S. Department of Transportation and a hair test, the company told FMCSA in support of the exemption. Its hair test regime flagged 7,159 of those applicants — 3.7% — for illegal drug use.
“Had J.B. Hunt only relied on the DOT test, we would have likely hired 6,443 of those drivers because 90% of them passed the DOT urinalysis,” according to the company. “But while J.B. Hunt disqualified those drivers for employment, most of them likely applied for and obtained work at other trucking companies that rely only on the DOT-required preemployment urine test.”
Owner-operators: Hair tests are a flawed approach
But many small trucking companies and owner-operators counter that while hair testing for drugs such as marijuana can likely show low levels of tetrahydrocannabinol, or THC, the tests do not indicate when the drug was used.
“Many individuals have never driven under the influence of any drugs or alcohol, but because a hair test may show traces of a drug like marijuana for weeks, it makes them an ‘abuser’ and greatly inhibits their ability to earn a living. This is unjust,” commented OOIDA President and CEO Todd Spencer.
“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. Companies that must resort to these measures to compensate for excessive turnover rates may find hair testing appropriate; however, that does not mean their methods, which are not standardized, should be implemented.”