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Trump Signs Bill Paving Way for Hair Follicle Drug Testing

On Wednesday, October 28, 2018, President Trump signed into law the SUPPORT for Patients and Communities Act (“the Act”). The Act, which passed both Houses of Congress with near-unanimous bipartisan votes (99 to 1 in the Senate, 396-14 in the House), directs the Secretary of Health and Human Services to submit an estimated date for his final scientific and technical guidelines for hair follicle drug testing. The testing would be used for Federal Motor Carrier Safety Administration (“FMCSA”) drug testing in conjunction with or in place of urinalysis, which is currently the only drug testing method accepted by the FMCSA.

Along with submitting a timeline for the final guidelines for hair follicle testing, the Secretary of Health and Human Services, Alex Azar, has 60 days to produce an explanation for why the guidelines were not produced as was originally required by the Fixing America’s Surface Transportation (FAST) Act, which required that the guidelines be produced by December of 2016.

The Act will force the issue of hair follicle testing approved by the FMCSA to allow motor carriers the flexibility of using the different types of drug tests in different situations. For example, hair follicle testing may be more appropriate for pre-employment and random tests, while urine testing may be better suited for probable cause and post-accident testing for the reasons explored below.

Furthermore, hair follicle testing is touted by many to be a more reliable and more thorough alternative to urinalysis. While undoubtedly more expensive and requiring longer turnaround times for results, hair follicle tests can detect drug use that dates back a significantly further period of time than a urine screening. On average (depending on length of a test subject’s hair), a hair follicle test can detect illicit drug use for 90 days prior to the test. This is compared to the 2-3 day detection period that is typical when using urinalysis. It is also far more difficult to cheat a hair test than a urine test. While there are whispers of a shampoo that can clear all evidence of drug use from strands of hair, these appear to be mythical, at best. On the contrary, one only needs to run a quick internet search to explore the myriad of creative ways people have invented to beat a urine test (browse at your own risk). Due to the above reasons, proponents are willing to pay premiums to ensure a drug-free workplace due to the frequent adverse impacts on performance, workers compensation claims, turnover, and truancy, among other things.

Additionally, there are a great deal of carriers who have already fully implemented hair testing for their pre-employment and random drugs tests. Because urine testing is currently required by law, these carriers feel that it is duplicative to pay for urine tests when they are unlikely to reveal any additional information that cannot be learned from a hair follicle test.

However, opponents of hair follicle testing argue that it is far more likely to result in a false-positive than a urine test.  These groups also contend that the color of a person’s hair, as well as his or her race, can greatly impact the likelihood of a false positive. There are also drivers of certain religions that assert they are not allowed to cut even a single strand of hair from their heads, but there are religious exemptions to the new law, and carriers can continue to use urine samples to test in every circumstance if a driver has a legitimate religious objection to hair follicle tests.

The provisions of the Act dealing with hair follicle testing were backed and lobbied for by the American Trucking Associations in an effort to promote safety on America’s highways, while the Owner Operator Independent Driver’s Association has opposed the Act as yet another invasion of their members’ privacy. At this point, it appears that hair follicle testing is inevitable and that carriers will soon be free to explore whether this method of drug testing is right for their particular business.

If you have any questions about drug testing policies or methods, please contact Kevin Coghill at (804) 377-1273 or kcoghill@setlifflaw.com, or Steve Setliff at (804)377-1261 or ssetliff@setlifflaw.com.

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