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January 03, 2023
FMCSA denies request for drug use hair testing

On December 23, the Federal Motor Carrier Safety Administration (FMCSA) denied a request to allow the use of hair testing for determining a commercial motor vehicle (CMV) driver’s drug use (87 Federal Register (FR) 79061). The Alliance for Driver Safety & Security, or “Trucking Alliance,” asked the agency to amend the definition of “actual knowledge” in its drug and alcohol testing requirements to include a motor carrier’s knowledge of a CMV driver’s positive hair test for controlled substances.

Granting the request would have required that positive hair tests be reported to the agency’s Drug and Alcohol Clearinghouse and to motor carriers inquiring about drivers’ records.

The Trucking Alliance contended that drug use is more accurately detected with hair testing than with urine testing. Alliance members that conducted hair testing for nonregulatory purposes found it was more effective for eliminating “lifestyle drug users” from the CMV driver pool.

Trucking Alliance members include Cargo Transporters; Dupré Logistics LLC; Frozen Food Express; J.B. Hunt Transport, Inc.; KLLM Transport Services; Knight Transportation; Maverick Transportation LLC; May Trucking Company, Schneider; Swift Transportation; and USXpress.

Under the FMCSA’s current regulations, “actual knowledge” of drug and alcohol use must be based on the following:

  • Directly observing a driver using alcohol or controlled substances,
  • Receiving information provided by a driver’s previous employer(s),
  • Awareness that a driver was issued a traffic citation for driving a CMV while under the influence of alcohol or controlled substances, or
  • The employee’s admission of alcohol or controlled substance use.

In its exemption application, the alliance contended that hair testing not only is more accurate and reliable than urine testing but also provides a longer detection window for controlled substance use, indicating prior use, and minimizes the opportunity for fraud in the specimen collection process.

The Department of Health and Human Services (HHS) has issued proposed Hair Mandatory Guidelines for Federal Workplace Drug Testing Programs (HMG) for public comment but has yet not issued a final version of the HMG. The FMCSA separately informed members of Congress that the agency could not allow the use of hair testing as an alternative to urine tests until HHS establishes federal standards for hair testing.

The FMCSA denied the Trucking Alliance’s request because it lacks the authority to permit a motor carrier’s use of a positive hair test to determine whether a driver has violated the agency’s drug and alcohol regulations.

The agency reported receiving 113 comments on the alliance’s request—31 in support of an exemption, 70 in opposition, and 12 other filers with no position either for or against the exemption request.

The Owner-Operator Independent Driver’s Association (OOIDA), International Brotherhood of Teamsters (IBT), and National Association of Small Trucking Companies (NASTC) argued that the FMCSA lacked the statutory authority to grant the exemption request and amend the definition of “actual knowledge.”   

Sixty-five individuals or small motor carriers also opposed the request, with many raising concerns about current driver shortages and supply chain disruptions. Small motor carriers indicated it is difficult to attract and retain drivers in the industry and that granting the exemption request would only make driver retention harder.

Those offering support for the exemption request included the American Trucking Associations, Inc.; the Truckload Carriers Association; the Institute for SaferTruckers/Road Safe America; and the Independent Carrier Safety Association.

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