Posted On Oct 29, 2022,

A drug-screening proposal that would raise the bar for thousands of truck drivers seeking work is getting strong pushback from independent and minority drivers.

An exemption request, filed with the Federal Motor Carrier Safety Administration in August by 11 major trucking companies, would effectively require that hair test results used by those companies to screen drivers for drug abuse be reported in the FMCSA’s Drug and Alcohol Clearinghouse. Those results would then be available to any trucking company accessing the database for information on driver applicants.

It’s a requirement that large carriers testing hair for drugs as a matter of company policy have been pushing for since the clearinghouse opened in January 2020. But because the U.S. Department of Transportation (DOT) has not yet recognized hair testing as an acceptable alternative to urinalysis, positive hair tests are prohibited from being reported into the clearinghouse.

If the exemption is approved, however, such test results would be allowed into the database for the companies applying for the exemption, which include J.B. Hunt Transport (NASDAQ: JBHT), Schneider National (NYSE: SNDR) and Knight-Swift Transportation (NYSE: KNX).

The Trucking Alliance, which represents the 11 carriers applying for the exemption, stated that 61,775 drivers and 64,201 commercial trucks would be affected under the exemption.

Jurisdiction stumbling block courtesy of HHS

Before DOT can promulgate a hair-test rulemaking, the U.S. Department of Health and Human Services (HHS) must issue guidelines, which HHS is currently finalizing. But until that happens — or unless there’s a change in oversight — there is little if any chance the carriers’ exemption will be approved. FMCSA acknowledged that problem when it posted the carriers’ application.

“Although FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until [HHS] has taken certain action, FMCSA requests public comment on the exemption application, as required by statute,” the agency stated.

Presumably FMCSA could still use comments generated by the proposal to help shape and inform a future rule.

Supporters: FMCSA has authority over hair testing

KLLM Transport Services and affiliate Frozen Food Express (KLLM/FFE), which are among the carriers seeking the exemption, argue that FMCSA does in fact has authority to grant the exemption. They note that the agency has the authority to require that employers report to the clearinghouse citations for driving under the influence, regardless of whether the citation leads to a conviction.

“Moreover, hair drug testing is based on science, and is more accurate than other instances in which FMCSA requires ‘actual knowledge’ reporting, such as water cooler talk, witness reports, and/or the possession of drug paraphernalia,” the carriers state.

“Had our company not utilized hair testing, we would have not identified 508 drivers who failed their hair drug test,” the companies state. “These drivers would have likely been hired to operate commercial vehicles for our company, creating a safety risk for the general public and a safety and liability risk for our company.

“If FMCSA does not grant this exemption, individuals who apply for safety sensitive positions can circumvent KLLM/FFE’s efforts to make the industry safer, by allowing that individual to work for other companies with less strict drug testing procedures.”

Religious opposition to testing hair for drugs

The carriers’ proposal was viewed much differently, however, among groups that constitute a large portion of the trucking industry. One of those groups is the Sikh Coalition and the North American Punjabi Trucking Association, which filed joint comments on the petition.

Sikhism is not only a major world religion but Sikhs represent “tens of thousands” of U.S. truckers, the groups told FMCSA.

Using hair to test for drugs, the groups assert, not only discriminates against Sikhs based on studies showing the potential for certain hair types and colors to be subject to a higher rate of false positives, but also because maintaining uncut hair is a primary means through which most Sikhs practice their faith.

“Sikhs, Punjabis, and other South Asians typically have brown or black hair, and are already disproportionately subject to high rates of bias such as employment discrimination and hate crimes,” the group stated. “Our organizations cannot support initiatives that potentially subject our already vulnerable communities to a greater likelihood of discrimination, particularly given that so many Sikhs and South Asians derive their livelihood from commercial trucking.”

They also point out that while employers generally know not to discriminate on the basis of race or gender, accommodating for religious practices is often overlooked.

“Moreover, employers often fail to accommodate requests for religious accommodation because drug testing (particularly pre-employment) is normally outsourced to third-party laboratories. Third-party techs administering drug testing often fail to recognize that they are acting as agents of the employer, and are normally untrained to respond to requests for religious accommodation.”

The groups underscored their opposition by summarizing a discrimination complaint against J.B. Hunt, one of the carriers seeking the exemption, which was settled in 2016.

Economic disparity for owner-operators, small businesses

Commenters opposing the Trucking Alliance’s petition, including many of the anonymous comments from owner-operators, pointed out that while hair testing may result in more positive test results as noted by supporters, this is not proof of habitual drug use.

“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,” said Todd Spencer, president and CEO of the Owner-Operator Independent Drivers Association, in comments opposing the petition. “This is unjust.”

David Owen, president of the National Association of Small Trucking Companies, agreed that allowing hair test reporting into the drug clearinghouse using the carriers’ proposed exemption would “risk the integrity of clearinghouse data and endanger the livelihoods of professional drivers who have appropriately taken drugs in the past and who have never been impaired and unfit to operate a heavy vehicle at duty time.”

Longer term, Owen contends, adopting the hair test method would be a higher cost burden for smaller carriers, given that urinalysis tests generally cost half as much as hair tests ($45 vs. $100). Small carriers, he said, would be forced to underwrite the costs of altering the testing infrastructure to accommodate hair testing. “That hard cost remains unknown in that the entire protocol would change or expand,” according to Owen.

“Training, collection, certification, and the duties of a medical review officer would have to be redone based on new regulations. Ultimately, dual systems would be necessary, ensuring significantly greater compliance costs. Given the overwhelmingly great number of carriers having fewer than 100 power units and the tiny share of carriers with more than 100 power units, this cost burden would disproportionately fall on small motor carriers.”

Original Article : Minority and Independent Truckers Challenge Hair Testing For Drugs