Hair Drug Testing DOT

29 May 2015

… Will Federal programs and DOT allow hair drug testing? …

In today’s (May 29) Federal Register the Substance Abuse Mental Health Services Administration (SAMHSA) published a Request for Information (RFI) as they work to incorporate hair testing into the type of specimens that can be used for drug tests.

Action on hair testing by the Federal government has been a long time in the making as hair testing has been an issue since 1988 when hair testing was first discussed in Congressional hearings.  I did attend those hearings as this was about at the same time that DOT was getting the testing programs in place for the regulated transportation industries.

A question is to be asked is: what is an RFI? A RFI is a request for information from interested members in the public for additional information.  That information will then be used to make a better or more informed decision on the several different issues for which there are questions. The RFI does not mean that hair testing will automatically be included as a specimen.

RFIs are not issued frequently but there is a purpose for them particularly with the Office of Management and Budget (OMB) wanting justification (documentation) for any significant determined regulation or changes to an existing regulation.

There are two previous RFIs that this writer is aware of.  The first RFI was issued in 1996 when a rewrite of 49 CFR 40 was contemplated.  For that DOT was seeking information on what sections of Part 40 needed revision.  That RFI led to the massive rewrite of 49 CR 40 that took place in years 2000 and 2001.  I did one when I was proposing a complete rewrite of 46 CFR part 16 when I was the program manager at Coast Guard to obtain information from the Maritime industry. SAMHSA is doing the same thing requesting information on what direction or approach to take if and when hair as a specimen source will be allowed in the Federal arena.

Comments are welcomed and are being sought so the testing industry and employers are invited to submit their thoughts on the use of hair for testing to SAMHSA.  Please see the notice for instructions on how to submit comments.  Remember that comment period for the RFI is open only for 30 days.  Comments received after 30 days may not be considered.  If you are a member of a trade association make sure that your trade association is soliciting comments as those trade association should be making comments to SAMHSA. This is important as DOT has to adopt the guidelines as finalized into their regulated programs as required by law.

The original discussion by SAMHSA started in April, 1998 when there was a three day meeting that was the beginning of the information gathering to incorporate alternative specimens for the Federal testing programs. The types of alternative specimens discussed were hair, oral fluid, and sweat patch along with urine on-site testing devices.  These meetings generated a large amount of information.

There are several concerns and topics that SAMHSA is interesting in getting answers for from the testing industry but also from the various employers who are currently using hair testing.

There is a lot of comment and discussion ahead before hair testing will come to fruition.  There was no mention of legal challenges and of course there will be some.  Those legal challenges will mainly revolve around “Disparate Impact” and other similar legal areas of challenge.

The industry is now going down a new path and one that holds a certain amount of promise and challenges for both the testing industry along with employees and employees.

Stay tuned for further developments not only for hair testing but also for oral fluid testing and testing of additional Schedule II drugs.

Read the full notice from DHHS – SAMHSA:

https://www.federalregister.gov/articles/2015/05/29/2015-12743/mandatory-guidelines-for-federal-workplace-drug-testing-programs-request-for-information-regarding

The article submitted by Robert C. Schoening.

Robert Schoening is well renowned for his knowledge and influence in the drug-testing arena. As the Drug and Alcohol Program Manager for the US Coast Guard (December 2001-March 2013) he developed and managed a successful drug testing program for the marine industry nationwide and internationally.  During this time he developed and implemented a new compliance audit checklist as well as the writing and publishing a new Marine Employers Guidebook for Drug Testing.  He is also the author of the federal regulation commonly known as the two-hour alcohol testing for maritime incidents.