Legislation seeks to add hair drug tests to FMCSA’s database

WASHINGTON — New legislation introduced on Thursday would require FMCSA to accept positive hair drug test results into the agency’s Drug and Alcohol Clearinghouse.

Sponsored by U.S. Rep. Rick Crawford, R-Ark., the bill, if passed, would be a major win for trucking companies that have already been using hair testing to screen drivers within their ranks but contend that they have been unable to have full knowledge of habitual drug users when making inquiries into the clearinghouse during the hiring process.

The Trucking Alliance, whose members include J.B. Hunt Transport (NASDAQ: JBHT) and Knight-Swift Transportation (NYSE: KNX), petitioned FMCSA directly in 2022 seeking an exemption to allow positive results using hair to test for drugs — taken from random testing and pre-employment screening of drivers — to be uploaded into the clearinghouse.

“Current FMCSA regulations prevent KNX from sharing positive hair test results with inquiring motor carriers and/or reporting to the Clearinghouse,” Knight-Swift told FMCSA.

“This allows any person who fails a hair drug test at one company to immediately apply for and gain truck driving employment at another company. If FMCSA does not grant this exemption, individuals who apply for truck driving jobs can circumvent KNX’ efforts to make the industry safer, by allowing that individual to work for other trucking companies with less strict drug testing procedures.”

But Robin Hutcheson, FMCSA’s administrator at the time, argued that FMCSA lacked the authority to amend the rules, contending that the agency had to follow mandatory guidelines from the Department of Health and Human Services. Those guidelines, however, have been held up in the review process at the Office of Management and Budget.

“By ignoring the requirement that FMCSA follow the HHS mandatory guidelines for hair testing … the applicant effectively argues that this provision be read in isolation,” Hutcheson stated in denying the petition. “This approach disregards an accepted standard of statutory construction, which provides that statutory text must be construed as a whole.”

The Owner-Operator Independent Drivers Association, representing small-business truckers, has so far opposed federal hair testing mandates, asserting that they can be discriminatory.

“Many individuals have never driven under the influence of any drugs or alcohol, but because a hair test may show traces of a drug like marijuana for weeks, it makes them an ‘abuser’ and greatly inhibits their ability to earn a living. This is unjust,” OOIDA President Todd Spencer stated in comments to the Trucking Alliance’s 2022 petition.

“Just because a small percentage of trucking companies opt to screen their drivers using hair testing does not mean the process should be used for the entire industry. Companies that must resort to these 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 implemented.”

Crawford introduced similar legislation in 2015 – which was cosponsored by Transportation Secretary Sean Duffy, a Republican representative from Wisconsin at the time – but the bill died in committee.