Hair test results can’t be used as actual knowledge
The Trucking Alliance submitted an application to the Federal Motor Carrier Administration (FMCSA) for an exemption from 49 CFR 382.107. Specifically, they are seeking an exemption that would allow them to use a positive hair test as actual knowledge of a driver’s use of a controlled substance. If allowed, this actual knowledge would result in the driver’s drug violation being reported to the Drug and Alcohol Clearinghouse and the driver needing to complete the DOT return-to-duty process.
While FMCSA is accepting comments on Trucking Alliance’s application, they prefaced the request with a qualification, saying “FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until the Department of Health and Human Services [HHS] has taken certain action. . . .” Federal law requires that FMCSA and other Department of Transportation (DOT)-regulated agencies follow HHS testing requirements, which means that HHS must amend their drug testing guidelines before FMCSA can follow suit.
Even if FMCSA had the authority to grant an exemption allowing hair tests to be used as the basis for actual knowledge, it is highly unlikely that they would do so. Actual knowledge is defined in 382.107 of the Federal Motor Carrier Safety Regulations (FMCSRs) as “knowledge by an employer that a driver has used alcohol or controlled substances based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee’s admission of alcohol or controlled substance use ....” The current definition of actual knowledge does not allow employers to use the results of a non-DOT drug or alcohol test as a basis for actual knowledge. Incorporating positive hair tests into the actual knowledge definition would open the door for results from other non-DOT testing practices to be used as actual knowledge, thereby skirting the DOT’s regulations on the types of testing that can be used to determine whether a driver has violated a drug or alcohol prohibition.
The Trucking Alliance submitted a previous exemption request in April 2020. In that request, the Alliance sought both to use positive hair tests to be used as actual knowledge in the context of pre-employment testing and to use hair tests for half of DOT random drug tests. FMCSA denied that request, stating that it did not have the regulatory authority to allow the exemption.
In May, HHS submitted a request for comments on a proposed change that would allow for oral fluids to be used for drug testing. HHS has not proposed accepting hair testing. Currently, only urine testing is allowed.
Key to remember: FMCSA lacks the authority to grant an exemption allowing a positive hair test to constitute actual knowledge of a driver’s use of a controlled substance.