The wait for hair-based drug testing just grew longer
Motor carriers hoping to add hair tests to their DOT drug testing arsenal will need to wait a bit longer thanks to a recent move by the Department of Health and Human Services (HHS).
Before the DOT can allow drug testing of a hair sample, HHS needs to approve guidelines for using hair tests on federal employees. Such guidelines were proposed in September 2020 with the expectation that final guidelines would soon follow.
Back to the drawing board
After widespread criticism over the proposed guidelines, however, HHS decided a rewrite was needed. The agency revamped the proposal and recently sent it to the White House Office of Management and Budget (OMB) for review.
Though a deadline is not set in stone, OMB policy says the review needs to be complete by the end of June, which would then open the door for the proposal’s publication. After that, HHS will need to collect input from the public before working on a final version.
Two major steps remain
Once the HHS guidelines are finalized, two important — and potentially lengthy — steps must take place before motor carriers can test their drivers’ hair for drugs (although these steps may take place at the same time):
- The DOT will need to propose and then finalize changes to the drug testing rules in 49 CFR Part 40, and
- The Federal Motor Carrier Safety Administration (FMCSA) will need to propose and then finalize corresponding changes to its drug testing rules in Part 382.
Incorporation of the HHS guidelines into its own rules is not an option for the DOT. By law, it must base its Part 40 testing standards on the HHS guidelines.
Major carriers are waiting
Some major truckload carriers are eagerly awaiting the option to use hair testing. In late 2022, a coalition of such carriers petitioned the FMCSA for an exemption to allow hair testing while new rules are pending, but the agency denied the request.
One member of the coalition, J.B. Hunt, has used hair testing since 2006 for its non-DOT testing program. In a letter to the FMCSA last year, the company said out of over 7,000 driver-applicants who tested positive on a hair test, 90 percent passed their DOT urinalysis.
What did the original HHS proposal say?
The HHS’s 2020 proposed guidelines only allowed hair testing for pre-employment and random tests. They did not allow it for post-accident or reasonable-suspicion testing because drugs don’t show up in hair for 5-7 days after use. In addition, due to an act of Congress, a hair-based random test for a commercial driver will be allowed only if that driver already had a hair test at the time of hire.
The proposed guidelines also called for positive hair tests to be verified with a urine or saliva test. This idea was met with stiff opposition from some trucking organizations that believe hair testing alone should be enough.
Why use hair testing?
According to HHS, hair tests are harder to cheat, are easier to conduct, and offer a longer window of drug detection (up to 90 days).
Can hair testing be done today?
Hair testing may be used as a supplement to, but not a replacement for, DOT-mandated urine testing. Hair tests must be performed as DOT tests.
What about saliva testing?
New rules for saliva-based drug testing were issued on May 2, 2023, and go into effect in 30 days. However, no labs have been approved to do the saliva analysis, which means saliva-based drug testing will not be an option for some time.
Key to remember: Hair testing as part of a DOT drug testing program remains on hold. The White House is currently reviewing newly proposed testing guidelines from the Department of Health, and major steps remain before the FMCSA allows hair testing in place of urinalysis.