Robin Hutcheson argues that federal statute prevents her from approving a drug-test exemption that some of the nation’s largest trucking companies argue would have kept thousands of drug-abusing drivers off the roads.
The Federal Motor Carrier Safety Administration chief stated in a public filing on Thursday that she was therefore obligated to deny an application filed by a group of 11 major truckload operators seeking an exemption from federal regulations to require positive hair tests be reported into FMCSA’s Drug and Alcohol Clearinghouse.
Those tests, administered by carriers either randomly to their current drivers or as part of preemployment screening, would have been made available to other carriers querying the database for drug test information on potential hires.
But Hutcheson affirmed what her agency had already asserted in August when the carriers’ application was posted for public comment: FMCSA lacks the authority to amend the rules.
“The applicant asserts that FMCSA does have the statutory authority to grant its exemption request, citing [federal code] which requires that FMCSA adopt regulations permitting pre-employment hair testing for controlled substances as an alternative to urine testing,” Hutcheson noted in her decision.
However, “by ignoring the requirement that FMCSA follow the HHS [Health and Human Services] mandatory guidelines for hair testing … the applicant effectively argues that this provision be read in isolation. This approach disregards an accepted standard of statutory construction, which provides that statutory text must be construed as a whole.”
Alliance considering HHS as next move
The decision, to be published in the Federal Register on Friday, marks the second time in three years that the carrier group, known as the Trucking Alliance, has failed to get FMCSA to tighten its drug-screening requirements prior to formal approval of mandatory guidelines from HHS. Those guidelines, issued in September 2020, are still under review.
Asked to comment on the decision, Robert Moseley of Moseley Marcinak Law Group, one of the firms representing the alliance, said it seems FMCSA feels hamstrung by the provision that it be required to wait on HHS before allowing for hair testing. Moseley points out that the provision language was part of a conference report accompanying the statute and therefore does not have the force of law.
“I think they feel powerless to deal with anything having to do with hair testing because of that provision,” Moseley told FreightWaves.
“But I think we’re in a position now where we may bring this FMCSA decision over to HHS directly and request a temporary change in policy until they formalize the mandatory guidelines. It’s just not an acceptable answer to say the industry has all these positive hair tests but they can’t be shared with anyone.”
Big-carrier statistics support hair testing
Those in support of the Trucking Alliance, including the Institute for Safer Trucking (IST), contend that despite statutory obligations, FMCSA also has a mission to make trucking safer.
“In pursuit of this, the [FMCSA] should empower motor carriers to make the safest hiring decisions,” IST stated in joint comments filed with Road Safe America. “The Trucking Alliance and its members have demonstrated that hair testing can help achieve this by effectively preventing unsafe drug-using drivers from getting into their trucks and on our roads.”
One of those members, J.B. Hunt (NASDAQ: JBHT), has been using hair testing as a matter of company policy since 2006. Over those 16 years, 191,972 truck driver job applicants submitted to both the urinalysis test currently required by the U.S. Department of Transportation and a hair test, the company told FMCSA in support of the exemption. Its hair test regime flagged 7,159 of those applicants — 3.7% — for illegal drug use.
“Had J.B. Hunt only relied on the DOT test, we would have likely hired 6,443 of those drivers because 90% of them passed the DOT urinalysis,” according to the company. “But while J.B. Hunt disqualified those drivers for employment, most of them likely applied for and obtained work at other trucking companies that rely only on the DOT-required preemployment urine test.”
Owner-operators: Hair tests are a flawed approach
But many small trucking companies and owner-operators counter that while hair testing for drugs such as marijuana can likely show low levels of tetrahydrocannabinol, or THC, the tests do not indicate when the drug was used.
“Many individuals have never driven under the influence of any drugs or alcohol, but because a hair test may show traces of a drug like marijuana for weeks, it makes them an ‘abuser’ and greatly inhibits their ability to earn a living. This is unjust,” commented OOIDA President and CEO Todd Spencer.
“Just because a small percentage of trucking companies opt to screen their drivers using hair testing does not mean the process should be used for the entire industry. Companies that must resort to these measures to compensate for excessive turnover rates may find hair testing appropriate; however, that does not mean their methods, which are not standardized, should be implemented.”
divineone98
I was prescribed hydrocodone two different times in 1 year by 2 different health care providers. Urgent care for knee injury and then during the procedure of a root canal. No refill on these medications ever. 11 pills total had unknowingly cost me my trucking career. Because whenever big companies enforce rules they do not look from all sides. i just got my license and this was my one big shot. i am now behind a desk bout to lose my house behind this whole experience. Racist/sexist employers took this test and ran with preventing me from home daily job. there are a lot of angry people in trucking industry feel women shouldnt drive and that if you just got ur license you shouldn’t be allowed a home daily position. the clearinghouse needs to not allow companies just take a positive hair test and run with it. if i am able to show i was prescribed hydrocodone then my prescription medication list should be option for me submit it to clearinghouse and not the employer. the clearinghouse needs to regulate for these employers looking to get rid of people based on gender or skin color Swift did me this way, i am a mom and i dont do drugs. if this ever goes thru drug testing results needs to be regulated by un-biased parties not the company snd the clearinghouse simply tells the companies if we hireable. i spoke to lab they told me they cleared me the lab said let me go for other reasons. but when i called recruiter says they put down for holistic reasons
Cory
THC will show up in a urine screen for up to 30 days. The hard drugs; crack, heroine, methamphetamine, cocaine, fentynal on show up for about 3 days!!!
A hair follicle test shows all the drugs used in the 3 months. If a driver smokes a little weed every now then, I honestly don’t see the problem with it. BUT, I do see a huge problem with ANY driver using hard drugs PERIOD!!!!!
Bob villa
Hair testing is incredibly invasive and can go back 3 months. What people do on their own time is not the business of an employer. They need to implement testing that quantifies intoxication, not just sometime in the last 3 months you touched the forbidden flower 😂.
Walter Settler jr
The trucking world is already bad. The major carrier companies wants people to work for them for pennies on a dollar. They are trying to crush the economy
Joe keepinitreal
White people can easily beat the hair test whereas black people cannot. And yes, it’s ridiculously easy to beat IF You’re white. Seems to me, this rule is beyond racist and why nobody is bringing up the fact is beyond me.
These are simple facts. I can see lawsuits arising out of this rule…
Forrest
seems like yet another instance of large corporate lobbying using ‘safety’ and government overreach to strangle smaller competition.
Roger vaughn
I don’t think everyone should get there panties in a wad just yet The way it used to be 40 years ago if you did not do drugs nobody would eat nobody would have anything on time nobody means nobody. I have been a trucker for 47 years I started in 1977 I have ran over 7 million miles accident free and I have participated in drugs in the past and I participate in drugs at present because I am disabled now if I did drugs in the past and never had an accident how could you people all of you people put somebody down for doing what was necessary to feed you m************ you hypocritical son of a b******
Martin Comer
What someone does on their off time is no one’s business but theirs , just because someone smokes a little bit of weed on Friday does not mean they are stoned on Monday, people need to find a way to test on a day to day basis, the way they are doing it now which stays with you for 30 days is flat wrong ! Forget hair testing that knocks someone out of a job because they smoked weed a year ago, what is wrong with you people ? Why do you insist on having so much control over everyone ?