In a notice to be published in the Federal Register soon, the Federal Motor Carrier Safety Administration (FMCSA) announced its decision to deny a petition filed by The Alliance for Driver Safety & Security--an alliance of large motor carriers--concerning the use of hair testing for DOT-mandated drug tests.
If you are a CDL driver or you employ them, you’re familiar with the DOT drug testing process, which has historically relied on urinalysis as the only approved method for conducting DOT-mandated drug tests. For many years, some in the industry, primarily larger carriers and certain safety groups, have pushed the DOT to allow hair testing as an alternative method. To date, that has not yet come to fruition.
In its most recent petition, the Alliance requested the FMCSA allow regulated employers to report positive hair test results to the Drug & Alcohol Clearinghouse as "actual knowledge" of drug use by the subject driver. It claimed hair testing would enhance public safety by providing a longer detection window for controlled substance use and by minimizing the opportunity for fraud in the specimen collection process. It suggested that because hair testing is more reliable and accurate than urine testing, it is the “appropriate drug testing method for preemployment and random testing protocols.”
While these assertions are backed by sound studies, the FMCSA has denied the petition, noting it does not have the statutory authority to recognize hair testing as a valid test type for DOT-mandated drug screens. According to its notice, "49 U.S.C. 31306(c)(2) requires that FMCSA follow the [Health and Human Services'] scientific and technical guidelines for hair testing, including mandatory guidelines establishing comprehensive standards and procedures for every aspect of laboratory testing ... The HHS issued proposed Hair Mandatory Guidelines for Federal Workplace Drug Testing Programs (HMG) in 2020 for public comment but has not issued a final version of the HMG."
In short, FMCSA believes its hands are tied on this issue unless and until HHS specifically authorizes hair tests for workplace drug testing.
So where does this leave us?
For now, urinalysis remains the only authorized test type for DOT-mandated drug screens (except in limited circumstances where blood draws will suffice). Accordingly, motor carriers must continue to test their CDL drivers for drugs through urinalysis.
That said, many carriers, including those who filed this petition, have been using hair testing as a supplement to their DOT testing process. In other words, they go above and beyond what the regulations require of them by conducting non-DOT hair tests in addition to the DOT urinalysis tests. This is permissible under the regulations, so long as the hair tests are in addition to the urine tests. If one of these hair tests returns a positive result but the urine test is negative, the carrier can take action to terminate or discipline the driver under its own independent authority as the employer, but it cannot report the result of that test to the Drug/Alcohol Clearinghouse or to future employers of that driver, since it is not an approved test type.
The FMCSA's decision comes on the heels of an agency proposal to potentially authorize oral fluid testing as another means for regulated motor carriers to conduct DOT drug tests. We addressed that notice in detail in another article. While the agency has yet to move forward with any rulemaking on that topic, it's possible it might do so in 2023.
If you have any questions about the FMCSA's notice or DOT drug testing in general, feel free to contact us.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.