Hair drug-testing guidelines sent to White House

By: John Gallagher

WASHINGTON — A revamp of a controversial proposed rule setting standards for using hair to test truckers for drugs has been received by the White House Office of Management and Budget for review.

The rewrite was received Friday, according to OMB. Its Office of Information and Regulatory Affairs (OIRA), which is conducting the review, has up to 90 days to assess the guidelines being proposed by the U.S. Department of Health and Human Services.

An OIRA review “helps to promote adequate interagency review of draft proposed and final regulatory actions, so that such actions are coordinated with other agencies to avoid inconsistent, incompatible, or duplicative policies,” according to OIRA.

Robin Hutcheson, the Federal Motor Carrier Safety Administration chief, told attendees at the Truckload Carriers Association annual meeting last month to look for the proposed guidelines this summer.

HHS’ proposed hair-test guidelines, which if approved (following a public comment period) would be used as the basis for a proposed rule by FMCSA, are the second go-round on the proposal.

The agency’s first proposal, issued late in the Trump administration, was panned — but for different reasons — by big trucking companies as well as owner-operators and labor.

Companies already screening drivers using hair and that want uniformity and a level playing field complained that the initial proposal was not strict enough because it still allowed for other testing options.

Major truckload carriers J.B. Hunt [NASDAQ: JBHT] and Schneider National [NYSE: SNDR] would like to be able to rely solely on hair testing instead of being required to also test urine or saliva.

In comments filed on the first HHS proposal, they warned that requiring a second alternative specimen test to confirm a test if a driver tests positive using hair, as proposed in the initial guidelines, would make the roads less safe because studies have shown that the “drug detection window” on hair is longer.

Small-business truckers and labor unions opposing HHS’ first proposal said there are still privacy, cost and other concerns that outweigh introducing hair into federal workplace drug-testing requirements.

In addition, “just because a small percentage of trucking companies opt to screen their drivers using hair testing does not mean the process should be mandated for the entire industry,” wrote Todd Spencer, president and CEO of the Owner-Operator Independent Drivers Association, in 2020.

“Companies that must resort to extreme measures to compensate for excessive turnover rates may find hair testing appropriate; however, that does not mean their methods, which are not standardized, should be mandated.”

While HHS does not consider the proposed guidelines to be an “economically significant” rule — meaning one likely to have an annual effect on the economy of $100 million or more or would otherwise adversely affect the economy — the agency still considers it “significant” in that it should be reviewed by OIRA and/or is a priority for the agency.

Gallagher (2023). Retrieved from FreightWaves News.