Coalition says hair testing for drugs not ready for prime time

By Jami Jones, Land Line managing editor | Thursday, August 20, 2015

A coalition of labor, medical and civil rights organizations is calling on Congress to remove the unproven, unapproved hair testing for drug use provision from the highway bill under consideration.

The coalition of 17 different groups sent a letter to the leadership of the House Transportation and Infrastructure Committee on Thursday, Aug. 20, urging them to follow established protocols for developing drug testing procedures and to exclude any provisions for hair specimen testing from any surface transportation bill.

Currently there are hair testing provisions in the DRIVE Act, which was passed by the Senate, and the Drug Free Commercial Driver Act of 2015, which has versions under consideration in the both the Senate and the House.

That has brought about opposition from 17 different groups including the American Civil Liberties Union; Association of Flight Attendants-CWA; Air Line Pilots Association; American Medical Review Officers LLC; American Train Dispatchers Association; Amalgamated Transit Union; Brotherhood of Railroad Signalmen; International Association of Machinists and Aerospace Workers; International Brotherhood of Teamsters; Jewish Alliance for Law and Social Action; Lawyers’ Committee for Civil Rights and Economic Justice; National Air Traffic Controllers Association; National Workrights Institute; Sheet Metal, Air, Rail and Transportation Workers-Transportation Division; Sailors’ Union of the Pacific; Transportation Trades Department, AFL-CIO; Transport Workers Union of America; and United Steelworkers.

The coalition points out that in the Omnibus Transportation Employee Testing Act of 1991 the Department of Transportation is directed to create requirements for drug and alcohol testing and adopt scientific and technical guidelines established by the Department of Health and Human Services.

The mandates in the two bills circumvent that process, the coalition states in the letter.

“The Senate has undermined the expertise of scientists and potentially jeopardized the jobs of thousands of bus and truck drivers with this unproven testing method,” said Transportation Trades Department President Edward Wytkind in a press release announcing the coalition’s letter to T&I leadership. “We urge the House to reject the Senate’s hair testing provision and ensure that federal drug tests are backed by scientific and forensically sound evidence. Nothing less should be acceptable.”

The Department of Health and Human Services has not established procedures that “reliably and accurately distinguish drugs ingested by an individual from those found in the environment and absorbed by the hair.” As a result, hair specimen runs serious risk of producing false positives.

In a June meeting of the Drug Testing Advisory Board, attendees were alerted to requirements on the Department of Transportation to prove actual drug use, not just exposure.

Patrice Kelly, acting director of the Office of Drug and Alcohol Policy and Compliance for the Department of Transportation told attendees that the DOT faces very strict guidelines on its drug testing.

“We have to be very careful at DOT to make sure that any testing that we bring in to our purview will detect only use and could not possibly detect exposure. If it is testing for exposure, then our position is that it could result in all positive test results being overturned for that specific drug if we can’t prove that it is use only,” she told the board.

“We could end up with situations where private employers have positive test results that may get overturned. When our cases are heard at the D.C. Circuit Court, it is not just one case that is involved and one individual. It starts out that way, but when a court makes a ruling, it affects all similarly situated people. The Omnibus Act tied us more tightly than our own regulations had by saying we had to prove use.

“Those issues of use versus exposure must be absolutely resolved scientifically so there is no explanation that somebody might have been exposed and not using the drug that they tested positive for,” she said.

The coalition’s letter also points out that studies show that hair testing may have an inherent racial bias, as darker and more porous hair retains drugs at greater rates than lighter hair. That bias was highlighted in a recent court case involving drug testing of employees by the Boston Police Department.

A federal court of appeals held that Boston police officers subjected to hair testing for illegal drugs had proved, “beyond reasonable dispute,” that the testing program caused a disparate impact on the basis of race in violation of the Civil Rights Act.

The push by large motor carriers and others to get hair testing approved with “unproven advocacy arguments” will actually hurt motor carriers who choose to continue with the Department of Health and Human Services-approved urine testing.

“Carriers that choose to continue testing the only HHS-approved specimen (urine) may be labeled as ‘less safe’ than those testing hair,” the groups wrote in the letter. “To avoid such unfair mischaracterization and potential liability risks, carriers may effectively be forced to begin testing both specimens. Additionally, the high likelihood of false positive results will increase carriers’ administrative burden as well, in order to spend additional time evaluating existing or current employee test results.”

The coalition points out that the Department of Health and Human Services is reviewing scientific supportability of hair testing, and Congress should let that play out.

“Any effort to immediately permit hair testing circumvents this important process,” the coalition concludes in its letter.

The Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration sought comments earlier this year on whether hair-based testing, sample collection, preparation, validity and confirmatory processes warrant a change to the guidelines specific for pre-employment, random, reasonable suspicion, post-accident, fitness for duty or return to duty.

The Owner-Operator Independent Drivers Association filed comments questioning the motives behind hair-based testing given the many incentives for truck and bus operators to drive safely. The Association is also concerned about false positive readings; a lack of criteria to distinguish between drug use and environmental contamination; and limitations that come along with a person’s age, sex, race and hair type.

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