Bill proposes to allow hair drug testing

By Jami Jones, Land Line managing editor | 10/31/2013

A bill introduced in Congress to allow motor carriers to use hair testing for pre-employment and random drug tests is setting the industry up for all sorts of problems, according to the Owner-Operator Independent Drivers Association.

Rep. Rick Crawford, R-Ark., introduced bill HR3403, called the “Drug Free Commercial Driver Act of 2013.” The bill proposes to allow voluntary use of hair testing by motor carriers in pre-employment and random drug tests.

Currently, the Federal Motor Carrier Safety Administration mandates urine tests for pre-employment screens, random drug tests and post-crash tests. Hair testing is allowed only in conjunction with the urine tests, not as a replacement for them.

Hair testing is not foolproof
OOIDA points to the numerous concerns with hair testing in addition to its lack of any sort of validation by the Department of Health and Human Services.

The Department of Health and Human Services has not given approval for the hair testing. The HHS Drug Testing Advisory Board is in the process of evaluating hair-based testing methods.

The Association contends that the Department of Health and Human Services should be allowed to complete the review of the testing method and, if it is determined to be a viable testing mechanism, to establish protocols and standards.

Many of the issues that the Department of Health will likely grapple with are the limitations of the testing pointed out by OOIDA.

Normal human head hair grows at an average rate of one-half inch per month. The industry “standard” tests approximately one and one-half inches of hair, or three months of growth. A positive test result will occur only if there has been drug use at least three times during the period of time – generally three months – being tested based on hair growth.

Estimates vary, but after a drug is used, it takes approximately four to 10 days for the hair containing the drug to grow out of the scalp enough to be cut, eliminating any recent drug use from detection.

The variances in hair types have also posed problems in standardizing drug testing. Hair shape, size, formation, etc., varies by race, sex, age, position on the scalp, hair color and texture. According to the American Civil Liberties Union, dark hair is more likely to test positive for a drug and additionally African-Americans are more likely to test positive than Caucasians. Differing portions of the scalp hair can even be dormant at any given time and would not reflect drug use.

Hair testing can produce false positives, just like urine testing, for a number of reasons. The tests themselves alert to very low concentrations. That leads to slew of potential false positives. These can include over-the-counter medicines mimicking illegal drugs, passive exposure and contaminated samples.

Currently, hair samples are washed by test labs before being subjected to the tests. In the absence of any standards, different labs employ different washing procedures designed to remove trace elements from the exterior of the hair. The duration of wash and cleansers used can also affect the test results. Too little cleanser for a short period of time could result in an uptick in false positives while too much cleanser for too long could increase the number of false negatives.

The Association points out that the Substance Abuse and Mental Health Services Administration, the agency that directly deals with the issue of drug testing, lists many of the above concerns as disadvantages to hair testing.

Finally, the Association points to the legal liability issue that will be created by allowing hair testing.

Courts around the country have allowed the introduction of hair testing results inconsistently. And in courts where the results are traditionally allowed, plaintiff attorneys could use the common misconceptions of accuracy and dependability to sway juries into believing that motor carriers using the mandated urine testing were somehow acting in disregard for safety.

Where is this all coming from?
The lawmakers behind this bill have one big thing in common: They all represent the home states of motor carrier members of The Trucking Alliance.

Sponsor Rep. Rick Crawford and co-sponsors Rep. Tom Cotton, Rep. Tim Griffin and Rep. Steve Womack are all Republicans who represent Arkansas. Three members of The Trucking Alliance are based in Arkansas – J.B. Hunt, Fikes Truck Line and Maverick Transportation. The fourth co-sponsor, Rep. Reid Ribble, is a Republican from Wisconsin, home state to The Trucking Alliance member Schneider National.

Other member companies of the Trucking Alliance are Knight Transportation, Dupre Logistics and Boyle Transportation.

This isn’t the first time this group has backed expensive mandates on the trucking industry. The group is also in support of increasing the liability insurance minimums on trucks.

According to Arkansas Business, back in 2006 J.B. Hunt became the first major transportation company to incorporate hair testing for drugs, which runs approximately $90 per test – twice the cost of a routine urine test.

Schneider Transportation added hair tests in 2008 according to the Milwaukee Journal Sentinel. Arkansas Business reports Maverick Transportation jumped on the hair-testing bandwagon in August 2012.

In July, Lane Kidd, president of the Arkansas Trucking Association and the senior manager of the Alliance for Driver Safety and Security, told the Substance Abuse and Mental Health Services Administration’s Center for Substance Abuse Prevention Drug Testing Advisory Board that his groups were working hard to get Congress to open the door to hair testing.

“This is nothing more than a poorly disguised ruse by big business motor carriers to increase costs and regulatory burden for their smaller business competitors,” OOIDA Executive Vice President Todd Spencer said. “The Department of Health and Human Services, which regulates drug testing at the federal level, has been studying this issue for years and readily admits there are shortcomings when it comes to hair testing.  If the big carriers want to institute greater internal measures and testing standards for their drivers, so be it.  But the need for Congressional action on this front is beyond me.  The only thing this proposal adds is onerous costs for most truckers.”

 “What we’ve seen through the years is that those companies with high driver turnover are the ones most likely to have problems with drugs and crashes.  And that problem won’t be fixed by legislation that deals with drug testing.  It will be fixed when there’s legislation that addresses real safety measures such as driver training.”

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