Senate Passes Bill Advancing ATA, The Alliance Wish List Regarding Hair Follicle Testing… But Not-So-Fast

Washington, D.C. – The U.S. Senate has passed, on a vote of 99-1, the Opiod Crisis Response Act of 2018 it says will better address the deadly opiod overdose epidemic in the country. “There is a bipartisan sense of urgency because this is our worst public health epidemic, and it affects virtually every community,” said Sen. Lamar Alexander, R-Tenn., and chairman of the Senate health committee. The is bill includes more than 70 proposals that grew out of a series of hearings. Its objective is to close some of the legal loopholes and deal with regulatory issues that have allowed drugs, like the killer fentanyl, to proliferate across U.S. borders and make it easier for those addicted to seek and receive treatment. According to the Centers for Disease Control and Prevention 72,000 opiod overdoses resulted in death last year alone. The Senate must now reconcile this legislation with similar legislation the U.S. House of Representatives passed back in June.

Hair Follicle Testing Provisions In The Bill Drawing Praise From Some Trucking Industry Groups

The opiod epidemic certainly impacts us all, but the bill is drawing praise from certain circles inside the trucking community for its provisions regarding hair follicle testing. The bill directs the Substance Abuse and Mental Health Services Administration to report to Congress on creating and issuing guidelines for hair testing. The Secretary of Health then has 30 days to report on the status of hair testing guidelines, eventually putting forth a schedule with achievable benchmarks and estimated date for delivery of the completed guidelines. The bill also contains reporting requirements on the development of the Drug and Alcohol Clearinghouse and a deadline for finishing work on oral fluids testing.

As you know, a urinalysis is the only form of drug testing recognized by the Substance Abuse and Mental Health Services Administration as a proven drug testing method. However, trucking interest groups like the American Trucking Association (ATA) and The Alliance have been working to change that. Proponents of hair follicle testing argue the test is much more reliable as it reveals drug use extending back 90 days or more.

“Our fleets need to depend on – and need the government to recognize – the most accurate, reliable and failsafe drug testing methods available. The time has come to get this done.” – Bill Sullivan, ATA Executive Vice President of Advocacy

The Alliance includes member companies Schneider National, J.B. Hunt, U.S. Xpress, Knight Transportation, Dupre Logistics, Swift and Maverick, among others. Managing director Lane Kidd has been vocal about the need for Congress to act and require trucking companies to perform hair follicle tests in the driver screening and hiring process. You may recall back in 2016 when The Alliance first requested an exemption from the Federal Motor Carrier Safety Administration for the recognition of hair testing results in lieu of urinalysis testing. The group argued their carrier testing data showed a much higher detection rate in hair testing than in urinalysis testing. In fact, Schneider National reported a four-times greater detection rate by using hair follicle testing. The group also argued it was too costly to perform both tests in the driver screening process and that the adoption of hair follicle testing would dramatically improve safety results and, thus lower insurance costs.

ATA’s executive vice president of advocacy, Bill Sullivan, responded to the new legislation by saying, “We thank Senator Thune and his staff for their continued persistence and commitment on this issue of hair testing. Our fleets need to depend on – and need the government to recognize – the most accurate, reliable and failsafe drug testing methods available. The time has come to get this done.”

Not-So-Fast!

Concerns abound about the use of hair follicle testing within the trucking industry. Most notably is the problem of false positive tests. Since hair exists outside of the body, microscopic drug particles in the atmosphere can bind to it and create false positive tests. To get an idea of how much of a problem environmental contamination poses, consider the fact that between 80% and 94% of American paper currency tests positive for cocaine, according to studies on the subject.

Now consider false positive tests are more likely on certain ethnic groups. African-Americans often have more coarse hair that more easily binds with atmospheric drug particles. Consider the lawsuit brought by African-American members of the Boston Police Department who were terminated after what they allege were false positive hair tests. Seven years worth of the police department’s data was analyzed and revealed that African-Americans were testing positive at about five times the rate of whites. Eight officers, one cadet, and one 911 dispatcher sued, saying that hair tests had a statistically disparate impact on African-American employees in violation of Title 7 of the Civil Rights Act of 1964. The district court granted summary judgment to the police department, but the decision was reversed by the First Circuit. The appeal is still pending, but this could be a landmark case having a deep impact on the trucking industry.

In another complaint filed by four East Indian Sikh J.B. Hunt applicants, they alleged religious discrimination. As part of their religion they are required to keep uncut hair and they claimed hair follicle testing would violate their religious convictions. The Sikhs sought an accommodation and J.B. Hunt denied the request. The Equal Employment Opportunity Commission found reasonable cause to believe that J.B. Hunt failed to accommodate the Sikhs’ religious beliefs and, as a result, failed to hire a class of individuals due to race, national origin and religion in violation of Title 7 of the Civil Rights Act of 1964. J.B. Hunt agreed to pay $260,000 and extend unconditional offers of employment to the complainants.

This is a complicated issue that won’t be going away any time soon across the trucking landscape. The truckers of The Driver’s Lounge, a Transportation Nation Network original series trucking show, discuss this issue and much more about what’s going on with drug use among professional drivers. Check it out below.

We’d like to know what you think. Should trucking companies be mandated to perform hair follicle testing during the driver screening process? Sound off in the comments section below!

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