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Federal Update
Bill proposes to allow hair drug testing

By Jami Jones, managing editor

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 not a replacement for urine tests.

Hair testing is not foolproof
OOIDA points to the numerous concerns with hair testing and the lack of any validation by the Department of Health and Human Services. The HHS Drug Testing Advisory Board is in the process of evaluating hair-based testing methods to see if shortcomings and concerns can be addressed.

The Association contends that the review of the testing method should first be completed to determine whether it is a viable testing mechanism with established 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 being tested – generally three months – 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 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 alert to very low concentrations. That leads to a 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 tested. 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 notes that the Substance Abuse and Mental Health Services Administration, the agency that directly deals with 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 have allowed the introduction of hair testing results inconsistently. And in courts where the results are traditionally allowed, plaintiff attorneys could use the misperceptions 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 all this 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 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.

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,” Spencer said.

“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.” LL