Written by Robert C. Schoening, HMC, USN (Ret.) >>>
Hair Testing: Will Testing Using Hair Replace Urine Based Drug Testing or Not? >>>
FMCSA published a notice on January 19, 2017 requesting that the Department of Transportation (DOT) allow hair testing for pre-employment purpose only and to replace urine based testing for controlled substances. This notice was to request comments on this subject.
The comment period has been extended to April 27, 2017 to honor two requests to extend the comment period. The comment period was extended to Aril 25, 2017 at the request of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) Transportation Trades Department and the International Brotherhood of Teamsters.
A key item of note is that SAMHSA has not approved hair testing which in accordance with public law passed September 1991 means that DOT cannot approve hair testing either.
The Office of Drug and Alcohol Policy and Compliance ODAPC) has not acknowledged the FMCSA published notice.
This notice was published as the result of a petition requesting hair testing for pre-employment testing only by five major trucking companies. The trucking companies that submitted a petition are J.B. Hunt Transport, Inc. (J.B. Hunt), Schneider National Carriers, Inc. (Schneider), Werner Enterprises, Inc. (Werner), Knight Transportation, Inc. (Knight), Dupre Logistics, Inc. (Dupree), and Maveric Transportation, LLC (Maverick).
Th primary argument for hair testing is that there is a higher positive test rate which in turn means those drivers that use a controlled substance are not allowed to drive. The questions that need to be asked are: 1. Why is there a higher positive test rate and 2.: what is the positive test rate difference from urine based testing?
The rationale for the higher hair test rate is that hair tests cover a much longer time frame than urine based tests. Hair when correctly harvested will cover a time span of approximately 90 days and urine will cover approximately 2 – 5 days. This is only part of the rationale with several other factors to be identified and discussed.
Drugs will be present in the hair for the entire length of hair. The question needs to be asked why not test the entire length of hair? The answer with the American Disabilities Act (ADA) and when substance abuse is considered as disability. The Act states current use will not be considered a disability without giving any time frames. It is generally considered by the hair testing labs that they can defend 90 days as current use. That has not been tested yet in any Federal Court.
There are several other issues with hair testing that revolve around Disparate Impact. Disparate Impact is a legal term to describe when a practice that has unjustified adverse impact on members of a protected class. Examples of practices that may be claimed to have a disparate impact include written tests, height and weight requirements, physical characteristics, educational requirements, and subjective procedures.
Disparate Impact affects hair testing in several different ways that revolves around the color and texture of hair. Sometimes to referred to as the Melanin factor. Melanin is a pigment that principally determines the color of hair, skin, choroid of the eye, and the pigment layer of the retina. It is the melanin that will help determine the color of hair.
It has been demonstrated that melanin has an attraction for drugs but that is not all. Hair texture will also play a role in absorption of the drugs into the hair shaft. Hair that has a rough texture will absorb drugs much more readily than hair with a smooth texture.
The above are part of the issues that SAMHSA and DOT/ODAPC have been wrestling with. There are numerous studies to support both sides. The issue of Disparate Impact has identified as an issue in a Federal Court recently with no resolution of the issues although a work around solution using urine testing was utilized. The solution of urine testing was not practical.
The issue of hair testing and the constitutionality of hair testing remains in the Federal arena of drug testing.
The question remains: Will FMCSA allow this request to happen?
Robert C. Schoening, HMC, USN (Ret.)
Consultant, Workplace Substance Abuse
Drug and Alcohol Program Manager, US Coast Guard HQ, Washington, DC (Ret.)
Member, Patient Advisory Committee, Whidbey Health