Though a band of the country’s largest for-hire motor carriers continue to promote the benefits of screening drivers for drug use via hair sample testing over a urine sample test, a rule from the U.S. DOT to allow carriers to perform hair sample tests in lieu of urine testing is still hung up in years-long regulatory limbo.
That’s despite a Congressional statute passed in 2015 requiring the Department of Health and Human Services (HHS) to develop guidelines for hair sample drug tests specific to trucking — and despite what proponents say is a large body of evidence showing that hair sample testing is more accurate in detecting prior drug use and, thus, should be a federally accepted standard for drug testing truck drivers.
“We’re looking at sometime into 2021 before these guidelines would even possibly be finalized,” said Lane Kidd, director of the Trucking Alliance, a coalition of carriers that includes Schneider, U.S. Xpress, Maverick, Knight-Swift and others. “There’s no reason to wait that long.”
The delay by federal agencies to enact the Congressional mandates, which were set by the 2015 FAST Act, has hair-testing proponents like the Trucking Alliance searching for legal alternatives that could allow fleets to drug test drivers exclusively via hair sample. That could mean another appeal to Congress, said Kidd, or working with the Federal Motor Carrier Safety Administration to find a legal basis for taking up a rule absent guidelines from HHS.
In the meantime, Kidd advocates for carriers having the ability to upload positive hair sample drug tests to the new CDL Drug & Alcohol Clearinghouse so that other fleets have access to that information when hiring or performing annual queries. “That makes so much sense I can’t see why anyone would oppose that. It makes highways safer. It mitigates truck crashes and it reduces drug-impaired driving,” he said.
HHS is now bearing down on being four years overdue in publishing the required guidelines, which Congress requested to be completed by December 2016.
A set of proposed guidelines should be published in the Federal Register within the next few months, as an HHS spokesperson said this week they have cleared the White House’s Office of Management and Budget. But once those guidelines are published, they must still go back through the same rulemaking process to become finalized. Then, FMCSA must take the guidelines and produce its own rulemaking to allow carriers to opt for hair tests over urine sample tests — a process that will include a proposed rule and a final rule, both of which must make their way through the drawn-out bureaucratic rulemaking process.
