How HHS Hair Testing Proposal Falls Short and When To Expect DOT Hair Testing

The Department of Health and Human Services (HHS) just wrapped up their 60-day comment period on their long-anticipated proposed hair testing guidelines.

Since 2015, when Congress mandated HHS to release hair testing guidelines, the Department of Transportation (DOT) and the trucking industry has increased random drug testing requirements due to the rise in rates of positive drug tests. The DOT also released a national drug testing results Clearinghouse Database to help reduce the number of safety-sensitive employees using controlled substances.

The industry is seeking additional drug testing methods, like hair and oral saliva testing, that can be used to prevent unsafe drivers on the roads as these methods are harder to cheat and provide a more complete drug testing history.

Large fleets have long used hair testing for pre-employment testing, catching 5 to 10 times more drug users than industry standard urine testing. However, currently these positive results cannot be released to the drivers record per DOT regulations.

Once completed, the DOT will adopt HHS hair testing guidelines and eventually prevent these drivers from seeking a job with another fleet. As of right now,  the proposed guidelines fall short of what the trucking industry has been hoping for.

Let’s break this down.

Why use hair testing as an alternative testing method?

The biggest problem with urine testing is how many options there are to try and cheat a drug test. These methods include:

• synthetic “fake” urine
• watering down the urine, or
• slipping in clean urine from someone else

While there are processes in place to catch individuals cheating the system, many people claim to have cheated and never been caught. Hair testing on the other hand is virtually impossible to cheat when done properly. There is no scientific proof that results can be manipulated by:

• dying your hair
• applying hair products
• detox kits, or
• any other misconceptions  about manipulating test results.

Additionally, the hair testing can detect drugs and alcohol in the system from a week to 90+ days, unlike urine testing, which only detects drugs and alcohol up to 7 days. Employers have long been using hair testing for pre-employment testing so they can better understand a potential new hire’s drug testing history.

“The scary part is, while a driver can be disqualified from driving from Werner Enterprises, they’re able to go to another carrier [that may not use hair testing] because hair testing isn’t recognized under federal regulations,” said Jamie Maus, vice president of safety and compliance at Werner Enterprises.

“Of the 5,000 positive hair tests in the last couple of years, only a handful of those also tested positive in urine, so only a handful of those would have been reported to the current Drug and Alcohol Clearinghouse or to other companies.”

“What was more surprising was the types of drugs we were picking up. The number one drug we see is cocaine, then amphetamines, and then opioids – marijuana is not even in the top tier.”

While critics of hair-testing claim it can result in false positives because certain drugs can be absorbed into the hair from secondhand smoke, or that it may offer racial bias in test results, hair-testing advocates say those concerns are unfounded and scientifically unproven.

Why the HHS hair testing proposal falls short

The biggest problem with the proposed hair testing guidelines is that, if hair testing results come back positive, a second urine test is required to confirm the positive test result.

This means a urine specimen must be collected at the time of the hair test or an employee must give a urine specimen by an MRO when reviewing a positive hair test result.

Not only will this create scenarios where a driver could receive a positive hair test result and a negative urinalysis test result, it also creates other issues such as:

• extra testing costs for confirmation testing
• longer driver downtime while waiting for test results, and
• complicated logistics of collectors or labs keeping an authorized second urine specimen for an undisclosed period of time while waiting for the MRO to determine if the specimen is needed for confirmation testing.

According to industry experts, hundreds of thousands of secondary urine specimens per day may need to be shipped to two completely different testing laboratories as some labs do not test both hair and urine and millions of these specimens will be collected, shipped, identified, and eventually discarded for no reason, significantly increasing testing costs to companies.

When can we expect DOT hair testing?

The HHS proposed hair testing guidelines were published in the Federal Register on September 10, 2020. After the 60-day comment period, which ended November 10, 2020, HHS will review all comments and can make additional changes to their proposal. This process could take months. 

When HHS releases their final proposed guidelines, the industry will need to wait for the Department of Transportation to go through its rulemaking process to allow the use of hair testing by motor carriers. While the DOT will likely adopt HHS guidelines, this process could take two years on its own.

However, Congress may try to push for immediate DOT adoption and the incoming Biden administration may apply pressure to speed up this process as well.

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Drug and Alcohol Services

At CNS, we offer a comprehensive Drug and Alcohol Consortium Service and are a certified consortium and third-party administrator (C/TPA).

Our experts ensure that all DOT rules and regulations are followed, including the implementation of random drug tests for you and your drivers, updating your company drug testing policies, record retention and document purge management.

We take all the necessary steps and precautions to keep you and your drivers compliant with the DOT drug and alcohol testing requirements.