As pretty much anyone in the trucking industry would agree, it’s important to ensure commercial drivers are alert and prepared to react quickly to changing conditions. Keeping drivers with a record of operating under the influence of alcohol or controlled substances off the road is a logical precaution. The creation and implementation of the Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse marked a major step forward in ensuring positive tests for controlled substances are recorded and available to carriers as a part of the background check on potential company drivers and independent contractors. In addition, the Clearinghouse provides regular updates that include nationwide statistics on drug and alcohol testing. As of March 2024, Clearinghouse statistics show that 239,929 drivers have at least one violation on their record. Out of those drivers, only 74,060 (30.9%) have completed the return-to-duty (RTD) process. In fact, the majority of those nearly 240,000 drivers — 126,000, or 52.5% — never even began the RTD process. Whether drivers placed out of service for substance violations complete the RTD process or choose to leave the industry, there’s little doubt that the Clearinghouse rules are helping get drug users out from behind the wheel of commercial vehicles. The statistics show the program is having an impact. Because of this proven success, members of the Trucking Alliance, a group of some of the largest and safest carriers in North America, say they’re frustrated with the government’s apparent unwillingness to consider a set of significant statistics submitted in a request to change the rules for controlled substance testing to allow testing of hair samples. The group, which represents carriers running more than 70,000 trucks, is pushing for the inclusion of hair testing as an approved method of FMCSA controlled substance testing and asking that results be included in the Clearinghouse. Trucking Alliance members have been utilizing hair testing, in addition to the approved urine testing, for pre-employment and random drug tests for years. In June 2023, the Alliance released a statement outlining statistics supporting the use of hair testing, as revealed by a study conducted at the University of Central Arkansas (UCA). The study, which analyzed both urine and hair testing results from nearly 1 million commercial drivers taken between 2017 and 2022, showed that hair testing produced nine times as many positive results as urine testing. “I don’t see how anyone can reasonably argue with these drug test results, given the large disparity in positivity rates between hair and urine testing for every drug and a sample of almost 1 million drug tests,” said Dr. Doug Voss, one of the UCA researchers, in the release. “At some point it’s like arguing whether the sun will rise tomorrow.” The Alliance had used similar statistics in an application for an exemption to FMCSA regulations requiring urine testing, asking that they be allowed to use hair testing instead of urine for 50% of the tests, pointing to a higher accuracy rate and increased public safety. The FMCSA denied the group’s petition in December 2022. Among the reasons FMCSA cited for the rejection was that the agency had not received guidance from the Department of Health and Human Services (HHS) on a process for conducting hair testing. That guidance from HHS was mandated in the Fix America’s Surface Transportation (FAST) Act passed in December 2015. So, what’s the holdup? “The hair drug testing HHS guidelines were sent to the White House April 3, 2023. So, we’re a year, a year and a month with nothing,” said Rob Moseley, attorney for the Moseley Marcinak Law Group, which represents the Alliance. The group recently filed a petition to the HHS demanding that the agency issue long-overdue guidelines. “Every day we don’t do this is another day that we’re sticking our head in the sand while habitual lifestyle drug users are using drugs and driving trucks,” Moseley said. He points to the current administration’s support for unions as one possible reason the HHS hair testing guidelines have stalled. “I think it’s politics,” he said — but he’s not optimistic a change of White House occupants would make a difference. “Trump was anti-regulation, so I’m not sure that makes a (difference),” he said. Part of Moseley’s frustration is that hair testing is already making a positive difference for the carriers that are using the method. “They’re still doing the hair testing and using that data in their hiring decisions, but of course, there are roadblocks to sharing that information with other carriers or with anybody else for that matter,” he explained. Moseley notes that carriers don’t need regulatory approval to use hair testing — but it must be used in addition to Department of Transportation-controlled substance testing, not as a replacement. Alliance members “have to go through the double expense of doing both tests now,” he said. “They’ve made that decision that they’re gonna spend the money because of the safety benefits. But what’s going on is that (drivers with a positive hair-testing result are) just going down the road to get another job somewhere else, and nobody will ever know they failed a drug screen.” The latest petition, sent to HHS on April 22, 2024, points out that hair testing is more reliable than urinalysis because it captures a larger window of time for drug use. Generally, hair testing detects drug use within the past 90 days, where urinalysis can detect only a few days (or, for marijuana, weeks). The petition also points out that urine testing is often unobserved, making it easier for subjects to adulterate or substitute the sample submitted. Included in the petition was mention of a 2007 publication by the Government Accounting Office that studied 24 collection sites under DOT protocols and found that, at all 24 locations, undercover investigators were able to use false identification to be tested under another person’s name. The flip side, the petition states, is that 100% of hair specimen collections are observed, minimizing the potential for deception. Carriers may recall that oral fluid testing was approved by both HHS and DOT for controlled substance testing but was put on hold until two approved laboratories for specimen testing were identified. That hasn’t happened yet, either. In the meantime, thousands of positive hair sample drug tests are being ignored by FMCSA — while thousands more drug users remain behind the wheel due to an inefficient testing system, according to the Alliance. Moseley is waiting for the petition to be published in the Federal Register, opening up the possibility of public comment. “Those guidelines can be finalized,” he said. “That should clear the way for allowing the carriers to be able to do this to increase safety on the roads.”
