New drug hair testing guidelines delayed until May 2025

WASHINGTON — The U.S. Department of Health and Human Services has again pushed back its schedule for publishing revised mandatory guidelines for drug testing hair under testing programs used at federal agencies, including the Federal Motor Carrier Safety Administration.

The revised guidelines, originally scheduled to be published in June 2023, have been delayed until May 2025, according to the Office of Management and Budget’s fall regulatory agenda. The guidelines were pushed back twice previously, to November 2023 and again to October 2024.

FMCSA has emphasized in the past that dates in OMB’s regulatory agenda, which is published in the fall and spring, are estimates, not “definite dates for regulatory and deregulatory actions,” according to the agency.

“There are a number of reasons why the timeline for a particular regulatory or deregulatory action may shift. Some reasons may include additional time for research, analysis, and stakeholder engagement or a number of other factors.”

Allowing FMCSA to include hair testing would be a major step toward aligning with large trucking companies’ preferred method of random-testing current drivers for drugs and drug-screening new drivers looking to enter the industry.

Once finalized, the proposed guidelines would revise an initial proposal issued in September 2020 that was opposed by almost all sectors of the trucking industry.

Large carriers argued that requiring an alternative urine or saliva sample as backup to any positive hair tests, as was stipulated in the 2020 guidelines, rendered the guidelines ineffective, particularly for preemployment screening. The detection window for drugs in urine and saliva tends to be much shorter than for hair samples, they contend, which could lead to both positive and negative test samples from the same donor.

Small-business truckers opposed the 2020 guidelines as both intrusive and discriminatory.

“Mandating hair testing policies for professional truckers would only expand the opportunities for employment discrimination for drivers that refuse to submit hair samples, whether it be for faith-based or other medical reasons,” commented the Owner-Operator Independent Drivers Association.

Earlier this year, the House Appropriations Committee approved a fiscal year 2025 appropriations bill that included a committee report directing HHS to publish the revised guidelines, which were required to be issued as part of the FAST Act that was passed in 2015.

“Since the FAST Act was signed into law, our nation has experienced a crippling substance use epidemic – particularly from opioids and synthetic opioids – and Federal inaction to recognize hair testing as a viable alternative to urinalysis has denied Americans a legitimate tool to stem the crisis,” the report states.

“This is a glaring reminder that drug-impaired driving remains a serious issue and poses a tremendous risk to the safety of the motoring public.”

Also being delayed, according to OMB’s fall regulatory agenda, is a notice of proposed rulemaking at FMCSA to revamp its drug and alcohol testing rules “by increasing the availability of driver violation information in the Drug and Alcohol Clearinghouse to keep unsafe drivers off the road,” the rulemaking’s abstract states.

“FMCSA also proposes changes to improve the efficiency of certain Clearinghouse processes to provide increased flexibility for drivers and employers, and further align Clearinghouse rules with underlying drug and alcohol use and testing regulations to improve compliance with, and enforcement of, these requirements.”

Originally to be published in 2022, the rulemaking has been pushed back to March 2025.