By: Marc Bardack and Matthew Grattan
In December 2015, President Obama signed The Fixing America’s Surface Transportation Act, a law allowing motor carriers to test a driver’s hair follicles during pre-employment and random drug screens. Although some companies, including J.B. Hunt and Schneider National, already test their drivers using this method, DOT regulations currently require these tests to be used in conjunction with traditional urine samples. Under the new law, motor carriers who choose to use hair follicles for drug testing must do so in accordance with scientific and technical guidelines issued by the Department of Health and Human Services.
Supporters of the law, including the American Trucking Association, note that hair follicle testing provides a more accurate analysis than traditional methods, preventing impaired drivers who could potentially pass a urine test from continuing to operate a commercial vehicle. Hair follicle testing is also able to detect drug use over a 90-day period compared with only a 2-3 day period for urine tests and is purportedly better at revealing chronic or multiple drug use.
Groups opposing the law, including the AFL-CIO and several smaller carriers, say hair follicle testing can produce “false positive” results, leading to the potential elimination of drivers in an industry already struggling to attract and retain drivers. With hair follicle testing, a driver can test positive based on exposure to drugs rather than ingestion. Additionally, because the tests alert to very low concentrations, even some over-the-counter medications can mimic illegal drugs.
There is also a racial component to hair follicle testing. Some studies have shown that darker and more porous hair retains drugs at greater rates than lighter hair. This could lead to more positive test results for African-American than Caucasians, exposing motor carriers to claims of racial bias.
Regardless of the perceived benefits and negatives of hair follicle testing, companies planning to use this form of drug testing need to ensure their methods comply with the guidelines issued by the Department of Health and Human Services, set to be released in late 2016. They also need to adopt policies and procedures to ensure that hair tests are evaluated accurately and consistently, so as to avoid, as much as possible, false positives and the risk of racial bias.