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Minority and independent truckers challenge hair testing for drugs

Exemption request filed at FMCSA raises debate over testing proposal

Hair test clinic credit JAFW

A drug-screening proposal that would raise the bar for thousands of truck drivers seeking work is getting strong pushback from independent and minority drivers.

An exemption request, filed with the Federal Motor Carrier Safety Administration in August by 11 major trucking companies, would effectively require that hair test results used by those companies to screen drivers for drug abuse be reported in the FMCSA’s Drug and Alcohol Clearinghouse. Those results would then be available to any trucking company accessing the database for information on driver applicants.

It’s a requirement that large carriers testing hair for drugs as a matter of company policy have been pushing for since the clearinghouse opened in January 2020. But because the U.S. Department of Transportation (DOT) has not yet recognized hair testing as an acceptable alternative to urinalysis, positive hair tests are prohibited from being reported into the clearinghouse.

If the exemption is approved, however, such test results would be allowed into the database for the companies applying for the exemption, which include J.B. Hunt Transport (NASDAQ: JBHT), Schneider National (NYSE: SNDR) and Knight-Swift Transportation (NYSE: KNX).

The Trucking Alliance, which represents the 11 carriers applying for the exemption, stated that 61,775 drivers and 64,201 commercial trucks would be affected under the exemption.

Jurisdiction stumbling block courtesy of HHS

Before DOT can promulgate a hair-test rulemaking, the U.S. Department of Health and Human Services (HHS) must issue guidelines, which HHS is currently finalizing. But until that happens — or unless there’s a change in oversight — there is little if any chance the carriers’ exemption will be approved. FMCSA acknowledged that problem when it posted the carriers’ application.


“Although FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until [HHS] has taken certain action, FMCSA requests public comment on the exemption application, as required by statute,” the agency stated.

Presumably FMCSA could still use comments generated by the proposal to help shape and inform a future rule.

Supporters: FMCSA has authority over hair testing

KLLM Transport Services and affiliate Frozen Food Express (KLLM/FFE), which are among the carriers seeking the exemption, argue that FMCSA does in fact has authority to grant the exemption. They note that the agency has the authority to require that employers report to the clearinghouse citations for driving under the influence, regardless of whether the citation leads to a conviction.

“Moreover, hair drug testing is based on science, and is more accurate than other instances in which FMCSA requires ‘actual knowledge’ reporting, such as water cooler talk, witness reports, and/or the possession of drug paraphernalia,” the carriers state.

KLLM/FFE also supports the alliance’s application by providing company drug-testing data using both urinalysis and hair to screen for drugs (see table).

Drug test results compiled by KLLM/FFE, 2021. Source: KLLM-FFE.

“Had our company not utilized hair testing, we would have not identified 508 drivers who failed their hair drug test,” the companies state. “These drivers would have likely been hired to operate commercial vehicles for our company, creating a safety risk for the general public and a safety and liability risk for our company.

“If FMCSA does not grant this exemption, individuals who apply for safety sensitive positions can circumvent KLLM/FFE’s efforts to make the industry safer, by allowing that individual to work for other companies with less strict drug testing procedures.”

Religious opposition to testing hair for drugs

The carriers’ proposal was viewed much differently, however, among groups that constitute a large portion of the trucking industry. One of those groups is the Sikh Coalition and the North American Punjabi Trucking Association, which filed joint comments on the petition.

Sikhism is not only a major world religion but Sikhs represent “tens of thousands” of U.S. truckers, the groups told FMCSA.

Using hair to test for drugs, the groups assert, not only discriminates against Sikhs based on studies showing the potential for certain hair types and colors to be subject to a higher rate of false positives, but also because maintaining uncut hair is a primary means through which most Sikhs practice their faith.

“Sikhs, Punjabis, and other South Asians typically have brown or black hair, and are already disproportionately subject to high rates of bias such as employment discrimination and hate crimes,” the group stated. “Our organizations cannot support initiatives that potentially subject our already vulnerable communities to a greater likelihood of discrimination, particularly given that so many Sikhs and South Asians derive their livelihood from commercial trucking.”

They also point out that while employers generally know not to discriminate on the basis of race or gender, accommodating for religious practices is often overlooked.

“Moreover, employers often fail to accommodate requests for religious accommodation because drug testing (particularly pre-employment) is normally outsourced to third-party laboratories. Third-party techs administering drug testing often fail to recognize that they are acting as agents of the employer, and are normally untrained to respond to requests for religious accommodation.”

The groups underscored their opposition by summarizing a discrimination complaint against J.B. Hunt, one of the carriers seeking the exemption, which was settled in 2016.

Economic disparity for owner-operators, small businesses

Commenters opposing the Trucking Alliance’s petition, including many of the anonymous comments from owner-operators, pointed out that while hair testing may result in more positive test results as noted by supporters, this is not proof of habitual drug use.

“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,” said Todd Spencer, president and CEO of the Owner-Operator Independent Drivers Association, in comments opposing the petition. “This is unjust.”

David Owen, president of the National Association of Small Trucking Companies, agreed that allowing hair test reporting into the drug clearinghouse using the carriers’ proposed exemption would “risk the integrity of clearinghouse data and endanger the livelihoods of professional drivers who have appropriately taken drugs in the past and who have never been impaired and unfit to operate a heavy vehicle at duty time.”

Longer term, Owen contends, adopting the hair test method would be a higher cost burden for smaller carriers, given that urinalysis tests generally cost half as much as hair tests ($45 vs. $100). Small carriers, he said, would be forced to underwrite the costs of altering the testing infrastructure to accommodate hair testing. “That hard cost remains unknown in that the entire protocol would change or expand,” according to Owen.

“Training, collection, certification, and the duties of a medical review officer would have to be redone based on new regulations. Ultimately, dual systems would be necessary, ensuring significantly greater compliance costs. Given the overwhelmingly great number of carriers having fewer than 100 power units and the tiny share of carriers with more than 100 power units, this cost burden would disproportionately fall on small motor carriers.”

Click for more FreightWaves articles by John Gallagher.

18 Comments

  1. T

    all respect. but it’s ponzie scheme to have drivers pay out money. all these test. hair test dot physical. and sleep study. clearinghouse .this is all an illusion to steal money from drivers and small company. this is not America. it’s new world order Marshall law. next drivers will be forced to ware a ankle monitor. treating all drivers as criminals.

  2. Jeff brockhouse

    If this is going to make things so much safer why doesn’t everybody operating any vehicle commercial and non commercial just think how much better things would be for everyone and while there changing the rule for everyone operating anything should include people riding bikes too and the politicians and law makers making up these stupid rules and laws pretty soon those smart guys will be driving to get there own goods cause there’s going to be no qualified people left to drive keep clearing house keep clearing tell no ones left there so smart but change the rules make them play there own game and see how they squirm out of that always good for everyone else except when they have to comply if these guys had a little common sense things would be better they don’t play by there own rules why would they there smarter than the rest idiots all of them where they dream this illusion of safety up wake up

  3. Matt Garrett

    I failed a hair folicle test. When I was informed I found the nearest drug testing site and paid $180 for my own test. I knew that I had not smoked weed for decades. The test came back negative as I knew but the company wound not recognize it . I even paid the $125 out of pocket for the lab that said I was negative to send a split sample. The said it was still negative, but come to find out they said “they retested themselves. I wasn’t really upset about not getting the job i applied for as I was clearing my name. Thank God DOT didn’t recognize hair folicle test, or 31 yrs of driving was down the tubes . Crete carrier was the company. I still have all the emails and test results . It was a hard pill to swallow knowing you’re clean and the company looking at you like you’re a doper.

  4. Jim B

    So you were at a party 4 years ago and some people were smoking weed, but you weren’t because you don’t smoke weed and never did. Nevertheless you were exposed to the smoke and 4 years later you’re denied a job and assigned a violation for something you didn’t do 4 years ago. Not exactly fair, and not exactly accurate. Drivers, do yourself a favor and avoid these companies.

  5. Thepersonyouhate

    Follicle tests shouldn’t be used. That being said, I agree with additional drug testing. I’m incredibly sick and tired of all the religious exemptions that are continually asked for. You are not special, and you never will be.

  6. Ritz

    ALL THE LAWMAKERS LAW ENFORCEMENT ANYONE INVOLVED IN DRUG TESTING OTHER PEOPLE NEED TO BE DRUG TESTED EVERY 3 TO 5 DAYS. WHAT THIS COUNTRY HAS DONE TO THE TRUCKING INDUSTRY IS SICKENING. YOU’RE EVEN ALLOWING IT TO BE INVADED BY FOREIGNERS.. ITS TIME FOR A SHUT DOWN AT THE REFINERYS..

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John Gallagher

Based in Washington, D.C., John specializes in regulation and legislation affecting all sectors of freight transportation. He has covered rail, trucking and maritime issues since 1993 for a variety of publications based in the U.S. and the U.K. John began business reporting in 1993 at Broadcasting & Cable Magazine. He graduated from Florida State University majoring in English and business.