A group of big-name trucking companies is once again asking federal regulators to allow hair testing for drugs to determine if a person is fit to drive — and this time the government has agreed to consider their case.
The Trucking Alliance, with members that include J.B. Hunt Transport (NASDAQ: JBHT), U.S. Xpress (NYSE: USX) and Knight-Swift Transportation (NYSE: KNX), is seeking an exemption that would for the first time allow positive results using hair to test for drugs — taken from random testing and pre-employment screening of drivers — to be uploaded into the FMCSA Drug and Alcohol Clearinghouse.
Specifically, the exemption would “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 as required to comply” with federal regulations, according to the Trucking Alliance’s request submitted in April.
Trucking Alliance carriers have long contended that hair testing is significantly more accurate in determining whether a person is a habitual drug user versus urine testing.
“My clients have knowledge of hundreds of thousands of positive drug tests that they’re not able to share under the current system, and those drivers are all out on the road right now,” Rob Moseley, an attorney representing the group, told FreightWaves. “This exemption would give motor carriers making inquiries into the clearinghouse the opportunity to have full knowledge of habitual drug users during the hiring process.”
A recent Trucking Alliance-backed study found FMCSA’s clearinghouse may be significantly underreporting the use of harder drugs by truck drivers, such as cocaine and illegal opioids, due to the exclusion of hair testing in the database.
In a request for comments expected to be published Wednesday, the FMCSA has agreed to consider the Trucking Alliance’s exemption application — a move that seems contrary to the agency’s response to a more extensive but similar appeal made by the group in 2020.
In August of that year, the Trucking Alliance asked FMCSA, in addition to the group’s current exemption request, for an extra exemption allowing hair drug test results in lieu of 50% of the required random testing, which currently require carriers to use urine testing.
Citing jurisdiction over drug policy matters by the U.S. Department of Health and Human Services (HHS), FMCSA responded in May 2021 that because it lacked statutory authority to act on the application, the agency was unable to process it in accordance with federal requirements relating to official notice and comment.
Further, publishing the group’s request for official notice and comment given its lack of jurisdiction “would be misleading to the agency’s stakeholders and other interested parties,” FMCSA stated last year.
Policy change at FMCSA?
FMCSA’s stance has apparently changed, however, as it plans to go forward Wednesday with a notice and comment period, even though it again notes a lack of authority.
“Although FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until [HHS] has taken certain action, FMCSA requests public comment on the exemption application, as required by statute,” the agency stated in the current comment request.
FMCSA did not immediately respond for comment on why it is publishing a notice and comment period this time around and what the effect of doing so could have on stakeholders.
A trucking regulations expert sees the agency’s apparent change in how it responds to exemption requests as a welcome trend.
“My experience in the past was that FMCSA would sometimes respond to exemption requests explaining why it had been denied and not released for public comment, like in the case where it didn’t have statutory authority to grant a request,” P. Sean Garney, co-director at Scopelitis Transportation Consulting, told FreightWaves.
“But putting these requests out in the public square, where it can be discussed and debated, generates important conversations in the industry, and while many of these exemptions may never be granted, they may seed important conversations that could lead to good public policy at the end of the day.”
HHS’s Drug Testing Advisory Board (DTAB) is revising proposed mandatory guidelines for drug testing using hair, released in September 2020, based on public comments and a review of current scientific literature cited in them. DTAB plans to discuss the revisions during a closed meeting in September. Once complete, the final draft of the guidelines must be cleared by HHS and then reviewed by the Office of Management and Budget.
Mick Brewer
Just what we need more legislation to shrink the driver pool. What idiot thought this was a good idea? If you can do the job who cares what you did 3 months ago. They’re not going to be happy until they’ve caused everyone to pay for the SAP program and then they’re won’t be any eligible drivers. Clearinghouse is a fu_____ joke and a perfect example of what happens when the government gets involved
Charles Ells
Until the law enforces the current speed limits and rules of the road you can do what ever you want it won’t change anything. Plenty of people driving with a phone in one hand doing 10-20 sometimes 30 over the speed limits , left lane exiting, cutting in front of trucks so close to the trucks front bumper the truck driver can’t see the four wheelers taillights
Welter sohs
Yes
H. E. McMaster
Since an individuals past mistakes are able to be displayed permanently and held over his head, damaging his ability to gain employment In the future. Why not broaden the scope to the CEO’s and share holder’s and anyone else who work’s in the office’s of these companies? Seems only fitting to me that good for me should be good for you too.
Rob
Are we as drivers not under enough scrutiny and over site? Enough with mandates and more rules, speed regulations, drug testing, alcohol testing, hos, etc we are not the ones out here causing the accidents and breaking the rules start enforcing these rules on the cars that are speeding, doing drugs, drinking, and causing crashes. We as professional drivers are already held to a higher standard but the daily auto drivers that cause the problems get a pass enough is enough. Stop punishing professionals and start going after those that actual break the laws those in the cars.
Jeff ayres
That should happen.. urine testing is just appropriate you don’t need hair samples on drug testing testing if the driver is fit be driving the truck at the time the drug test is taken not what happened two or three months ago this is invasion of privacy should not be allowed pee test is good enough for what they need we don’t need to have any else..
Welter sohs
Yes
Bug Juice
Can someone reach out to the people pushing this idea and ask them where their brains are at?
If the end result is to create more headaches with finding qualified candidates just wait until the insurance companies start getting into hair testing. The FMCSA seems like they are also staffed with people who don’t really have a clue just how thankless and unappreciated holding a CDL A is.
We have tons of immigrants coming into this industry and while that isn’t a problem in itself—somehow we have candidates getting their CDLA that have little to no ability to communicate and handle the functions of the job that legal nightmares like the CARMAC agreement have created. I cannot tell you how many times I have tried to talk about contract language and had the realization that the person sitting across from me cannot adhere to one of the basic rules of trucking…..the ability to understand English enough to deal with all the stuff that driving a truck entails.
Creating a legal nightmare where the general public or sleazy attorneys can use hair samples to cast doubt on someone who would pass the drug tests that have been historically working is silly. We are not yet three years into the Clearinghouse and that is something that was 20 years overdue
ThaGearJammer25/8
Get drunk every night! Thank god. Hair tests don’t have to worry 🍻 seriously the amount of beer and liquor containers I see at fuel island garbage receptacles is frightening. But again as an American I stand up for freedoms wether I agree with them or not. Personal choice. Shouldn’t test for anything; if a man can do a job and do it well that should be his job.
Rick M
Horrible idea – should turn focus on capping lawsuits levied on trucking companies for negligence linked to accidents. Of course the family of loved ones should be able to sue but these max suits and cost of insurance continues to drive companies out of business. The driver pool is small enough now – let’s not be ignorant. ADHD meds are like pure adrenaline.
Welter sohs
Yes