FMCSA denies petition for federal recognition of hair-sample drug testing

Washington — The Federal Motor Carrier Safety Administration has denied a petition calling on the agency to recognize hair samples as an alternative drug-testing method for truckers, reasserting a long-standing position that it lacks the statutory authority to do so.

Federal regulations mandate that truckers be tested for drugs by urinalysis. In August, the Trucking Alliance, a coalition of 11 organizations, requested that FMCSA amend the definition of an employer’s “actual knowledge” of a driver’s positive drug test – which requires the employer to report the results to the FMCSA Drug and Alcohol Clearinghouse – to include knowledge of a positive hair test.

The alliance writes in its petition that “public safety is improved through the use of hair testing because drug use is more accurately detected, and drug users are removed from the operation of commercial motor vehicles.”

In a notice published in the Dec. 23 Federal Register, however, FMCSA maintains its stance on following Department of Health and Human Services’ hair-testing guidelines, which remain under review.

“By ignoring the requirement that FMCSA follow the HHS mandatory guidelines for hair testing … the applicant effectively argues that this provision be read in isolation,” FMCSA administrator Robin Hutcheson writes in the notice. “This approach disregards an accepted standard of statutory construction, which provides that statutory text must be construed as a whole.”

In an article published online Dec. 22 in the Owner-Operator Independent Drivers Association’s Land Line magazine, OOIDA Director of Federal Affairs Jay Grimes supports FMCSA’s decision.

“FMCSA’s swift denial of another Trucking Alliance exemption request highlights the unanswered questions and validity concerns with hair testing. 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. OOIDA maintains our opposition to any hair testing mandate.”

Speaking to industry news resource FreightWaves in a report published online Dec. 24, Robert Moseley, an attorney for one of the firms representing the alliance, said petitioning HHS may be on the horizon.

“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.”