Eleven large-fleet trucking companies are pushing federal regulators to address a petition to allow hair testing for drugs that the carriers claim is needed to help keep drug-using truck drivers from getting behind the wheel.
The carriers — which include publicly traded truckload operators J.B. Hunt [NASDAQ: JBHT], U.S. Xpress [NYSE: USX], Knight-Swift Transportation [NYSE: KNX] and Schneider National [NYSE: SNDR] — are seeking an exemption from trucking regulations so that they could use hair as well as urine for random drug tests and pre-employment screening.
In a petition filed with the Federal Motor Carrier Safety Administration (FMCSA) last August, the carriers asked that they be allowed to use hair drug test results as part of the required random testing, which currently mandates urine testing, and to allow the release of the results of those tests into the Drug & Alcohol Clearinghouse.
To meet the current requirement of 50% annual random testing of drivers, the carriers would test 25% of drivers using urine testing and 25% hair testing,” according to the petition. The carriers are also asking to be allowed to report positive hair tests gathered during pre-employment screening to the clearinghouse.
Hair testing is more expensive on average than urine testing, costing about $100 per driver versus $45 for a urine test, according to the petition. It points out that several of the 11 carriers have been conducting their own hair testing to screen drivers in addition to the required urine testing for over 10 years.
However, “the big issue is not the cost,” Rob Moseley, an attorney with law firm Moseley Marcinak Law Group, which is representing the carriers, told FreightWaves on Tuesday. He said that because drugs are detectable in hair tests 45 days or longer, as opposed to much shorter periods in urine, drivers abusing drugs are getting hired who might otherwise not have been. “These drug users need to go into the system because we don’t want them driving commercial vehicles on our highways. Right now, they’re evading the system.”
After the FMCSA failed to publish the trucking group’s petition within the 60-day time frame required by statute, Moseley’s firm in February petitioned the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, to compel FMCSA to publish the document.
However, the court denied the group’s petition several days later, ruling that, because some of the trucking companies involved had previously petitioned FMCSA for a similar exemption (in January 2017), “the [FMCSA] Administrator may treat these similar petitions as a single petition” and therefore “she was not required to publish the companies’ second, similar petition.”
Asked to comment, an FMCSA spokesman pointed to the U.S. Department of Health and Human Services’ (HHS) proposed rule published in September — a month after the trucking group submitted its petition — setting out mandatory hair test guidelines for agencies that are required to oversee drug testing. HHS has not yet issued a final rule.
“We can’t act until HHS finalizes their process,” the spokesman told FreightWaves, adding that “the agency is aware of the petition, and we will formally be responding to the petitioners.”
The comment period for HHS’ proposed rule ended on Nov. 9. The 213 comments received were notable in that they were almost universally critical of the guidelines as proposed: Those opposing hair testing contended they went too far, those supporting hair testing — including the American Trucking Associations — asserted they did not go far enough.
“FMCSA is taking the position that HHS is going to deal with this,” Moseley said. “But we’re asking for an exemption from FMCSA regulations, not from HHS, so therefore FMCSA is the appropriate agency to consider our petition.”
Besides, he said, “the carriers we represent all opposed the HHS proposal because it requires duplicative testing of both urine and hair. That does nothing to improve [the ability to catch drug abusers] so the guidelines don’t really help.”
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