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Will Biden steer hair-based drug testing to the exit ramp?

Support from labor, weak HHS petition could see proposed rule kicked to the curb

Caption: Small-business truckers oppose a federal hair-test regime. (Photo: Jim Allen/FreightWaves)

Proposed federal guidelines for using hair to test for drugs within the trucking industry may not get finalized anytime soon now that the Biden administration is in town.

Rolled out in September, the proposal has been unpopular on both sides of the hair-testing issue. Supporters — major trucking companies that are already screening drivers using this method and want uniformity and a level playing field — say the proposal is not strict enough. Opponents — labor unions and small-business truckers — say it goes too far by even introducing the use of hair into the drug-testing equation.

But Biden’s strong support from labor in particular could mean slow progress — if any — on a hair testing regime for use by industries regulated by the U.S. Department of Transportation.

“I don’t think it would be a surprise if this administration doesn’t finalize” the proposed mandatory hair-testing guidelines, David Osiecki, president of Scopelitis Transportation Consulting told FreightWaves.

“This administration is going to be more closely aligned to labor concerns. The Teamsters and others have historically opposed hair testing, and their concerns will carry weight. Hair testing guidelines have been an uphill climb from the get-go, and now that this administration is running the government the hill just became steeper.”

Other potential avenues for the proposal: The U.S. Department of Health and Human Services (HHS), which issued the proposal, could withdraw it and draft a new proposed rule that is consistent with this administration’s policies, Osiecki said. Or HHS could reopen the proposal and take additional comments. “However, I think that’s probably unlikely,” Osiecki noted.

Based on the over 200 initial comments filed on the petition, it is difficult to see how the proposal as written will make it into a final rule.

Major truckload carriers J.B. Hunt [NASDAQ: JBHT] and Schneider National [NYSE: SNDR] would like to be able to rely solely on hair testing instead of being required to also test urine or saliva. They warned that requiring a second alternative specimen test to confirm a test if a driver tests positive using hair, as proposed in the petition, would make the roads less safe because studies have shown that the “drug detection window” on hair is longer.

“It is clear that hair testing will detect more drug use than urine testing, which makes it even more important that a requirement to confirm a positive hair test with an alternate specimen type not be included in the final guidelines,” commented J.B. Hunt.

J.B. Hunt and Schneider both pointed out legal consequences they say HHS did not consider in cases where a hair test is positive but an alternate urine or saliva specimen used to confirm it is negative.

“The motor carrier will be unable to deny employment to those who had a positive hair test, but whose alternate urine test is negative,” Schneider commented. “If the applicant is involved in a serious crash, the motor carrier will be vicariously liable and could face punitive damages for employing a driver who previously tested positive on a hair test regardless of the result of an alternate specimen confirmation test.

“Simply put … many carriers currently using hair testing will likely stop hair testing because of potential legal exposure and the fact that an alternate specimen will negate any benefit of hair testing. This will make highways less safe, which is clearly not the intent.”

Small-business truck owners represented by the Owner-Operator Independent Drivers Association also oppose the petition, but for different reasons than big-fleet operators.

“Based on our findings, individual hair tests cost about $90 for drivers which is twice the amount for standard urinalysis and other tests,” OOIDA stated in its comments. “While expenses are understandable when improving safety, there is not sufficient safety evidence to justify a mandate in this case.”

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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.