Legislation has been introduced that would require the Federal Motor Carrier Safety Administration to accept positive drug test results from hair testing in the Drug and Alcohol Clearinghouse.
On Thursday, July 10, Rep. Rick Crawford, R-Ark., introduced HR4320. Also known as the Drug and Alcohol Clearinghouse Public Safety Improvement Act, the legislation seeks to amend the federal code to allow FMCSA to report positive hair test results from pre-employment and random testing to the Clearinghouse.
While urinalysis satisfies the current drug and alcohol testing requirements, many large fleets require their employees to undergo hair testing as well. Current regulations do not prohibit employers from using hair tests; however, those results are not reported in the database.
The legislation does not seek to mandate hair testing but, rather, simply to allow motor carriers to report the results of any positive test so that other potential employers could be made aware.
“Arkansas’s trucking industry relies on safe and efficient policies that keep our roads safe for all users of the road. Allowing U.S. motor carriers to use positive hair test results as actual knowledge for pre-employment purposes not only creates a more reliable way for drug testing but also creates a more equitable process for hiring truck drivers,” Crawford said in a statement.
“This legislation enables employers to know if a licensed commercial truck driver job applicant has previously failed a hair test for illegal drug use. Removing known controlled substance users from behind the wheel of commercial motor vehicles will make our nation’s roads safer for everyone.”
The resolution has been referred to the House Committee on Transportation and Infrastructure for further review.
The legislation is the most recent attempt to have positive hair testing results included in the agency’s Drug and Alcohol Clearinghouse.
In both 2020 and 2022, the Trucking Alliance formally petitioned FMCSA to include those results. In both instances, the agency denied the request, saying it “lacks the statutory authority to grant the exemption request to amend the definition of actual knowledge to include the employer’s knowledge of a driver’s positive hair test.”
In response to the group’s request, the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration cited legal cases that “indicate an employment action taken on the basis of a positive hair test alone, without other corroborating evidence, may be vulnerable to a legal challenge.”
During the public comment period, the Owner-Operator Independent Drivers Association filed comments in opposition to the request, saying hair testing is unreliable and creates unnecessary concerns for drivers.
“The Clearinghouse should not accept the results of any hair follicle testing considering the inconsistencies and inaccuracies involved,” the Association wrote in its comments. “Even under current Clearinghouse regulations, drivers are not always assured of due process. Not surprisingly, drivers have shared legitimate concerns about their employment status following false positives and other contentious results.”
The Sikh Coalition and the North American Punjabi Trucking Association also commented in opposition to the request, citing concerns about false positives and faith-based accommodations.
Regardless of the outcome of HR4320, potential changes to the U.S. Department of Transportation’s workplace drug and alcohol testing programs could be on the horizon.
In September 2020, Health and Human Services released a notice of proposed rulemaking that would establish hair-testing guidelines for Federal Workplace Drug Testing Programs. In its initial proposal, the agency sought to “allow federal executive branch agencies to collect and test a hair specimen as part of their drug testing programs with the limitation that hair specimens be used for pre-employment and random testing.”
Nearly five years later, the fate of that proposal is still unknown. According to the most recent Regulatory Agenda, a supplemental notice of proposed rulemaking was expected to be issued in May of this year. That notice still has not been published.
An update to a possible new date for a supplemental notice will have to wait until the spring 2025 regulatory agenda is made official. While there is no concrete date for its release, it should be made available in the coming weeks. LL
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