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Dec. 1 — The federal agency responsible for reducing substance abuse will likely miss a Dec. 4 deadline to set national guidelines allowing trucking companies to test their drivers’ hair follicles for drugs.
The freight transportation industry is federally regulated, and commercial carriers must randomly screen applicants and test employees for drug use. The Department of Transportation creates the requirements and adopts scientific and technical guidelines established by the Department of Health and Human Services.
The regulations currently permit urinalysis, and standards and laboratory certification requirements have been produced for those tests. But the government hasn’t yet given the green light for commercial carriers to use hair tests to meet the standards for safety-sensitive transportation workers.
Last year’s highway funding bill mandated a little-known agency within the HHS, the Substance Abuse and Mental Health Services Administration, to study the matter and issue guidelines for hair testing “within a year” of its enactment on Dec. 4, 2015. That measure was included in large part due to efforts by the largest U.S. trucking companies to get hair testing federally approved.
A more wide-reaching provision to allow hair testing before the HHS issues guidelines was rejected, but a petition has since been filed requesting an exemption for six carriers, including some among the 10 largest in the country, to do just that.
“There’s no question that the trucking industry in large part, these companies, and the American Trucking Association, have been working and lobbying hard on the issue,” Larry Willis, secretary-treasurer of the Transportation Trades Department of the AFL-CIO, told Bloomberg BNA. “What’s really troubling is that they’re now asking a federal agency at the executive branch level to grant them what Congress specifically denied them in the highway transit bill last year.”
Many of the largest carriers, including J.B Hunt Transport, Schneider National Carriers, Werner Enterprises, Knight Transportation, Dupre Logistics and Maverick Transportation, already use hair testing.
These companies are using it, even though the science and technology behind it hasn’t reached a consensus standard for accuracy and reliability yet, according to subject-matter experts and scientists interviewed by Bloomberg BNA.
Hair specimens can test positive for drugs that the donor was merely exposed to—known as external contamination—but didn’t use. A federal appeals court has also found the procedure to be scientifically unreliable, ruling in favor of black police officers in Boston who argued that studies show an inherent racial bias because darker and more porous hair retains drugs at greater rates.
The carriers have maintained that hair testing is indeed scientifically sound, and they are pushing for federal approval. Getting the government’s approval would mean that the companies can submit failed hair test results into a national database that they can share to screen out applicants. The companies are allowed to share the results of urinalyses but are prohibited by federal law from doing so with hair tests.
So why are trucking companies continuing to use hair testing?
“The reason, frankly, is that experience has shown these companies that they’re able to identify more hard drug users using hair testing than they would otherwise identify using urine tests,” Lane Kidd, managing director of the Alliance for Driver Safety & Security, told Bloomberg BNA.
The organization is better known as the Trucking Alliance. It holds itself out as a “small coalition of freight transportation carriers” with “common goals and objectives,” though it seems largely to be a lobbying arm for several of the 10 largest trucking companies in America.
Several civil rights groups, including the American Civil Liberties Union and the Lawyers’ Committee for Civil Rights and Economic Justice, have opposed the group’s efforts. They’re joined by a number of labor unions and owners of smaller freight companies, who believe the group’s motives have little to do with highway safety.
“When we look at statistics from the” National Highway Traffic Safety Administration, “we’re looking at less than one accident a year per state that involved a [tractor-trailer] driver under the influence of alcohol, drugs or medication, and that’s not even considering whether it was actually a direct result of drug use,” Scott Grenerth, a former trucker and current regulatory affairs director for the Owner-Operator Independent Driver’s Association, told Bloomberg BNA.
The OOIDA is an international trade association representing independent owners and professional drivers who collectively own or operate over 240,000 individual heavy-duty trucks and small truck fleets.
In 2013, there were 30,057 fatal motor vehicle crashes in the U.S., and the NHTSA reported that the driver of a tractor-trailer was under the influence of alcohol, drugs or medication in 48 of those crashes, or 0.16 percent. “The current system should be viewed as a success,” Grenerth said.
Kidd cited a report of a repeat drug offender who caused a chain accident that killed seven people and injured six others. “Go ask the families of those victims if keeping drug users out of this industry is important,” he said.
“One can argue that until the rates get to 5 percent or greater it’s irrelevant, but we’d say that even 1 percent of accidents due to drivers under the influence is too many,” Kidd said when asked about the statistical significance of one incident.
Passing the measure would also harm smaller companies because any employer or operator who doesn’t use hair testing in addition to urinalysis could then be characterized as being “less safe,” whether they do so because they don’t want to pay double for hair tests or because they don’t want to use a procedure that lacks a widespread scientific consensus, Grenerth said.
Rather than advancing safety, the Alliance’s and carriers’ efforts are “a thinly veiled attempt to pass along the cost of hair testing to other operators,” he said.
Hair testing costs roughly twice as much as a urine test, but larger carriers are better positioned to negotiate lower rates with testing businesses and laboratories, and often do, he said. More importantly, the large carriers want to allow hair testing in order to “compensate for their high turnover rate and mitigate risk,” Grenerth said.
Those companies often have a yearly turnover rate higher than 50 percent, and sometimes as high as 60-70 percent because of the hard lifestyle of a trucker, Kidd told Bloomberg BNA. A company with a fleet of 1,000 trucks could therefore end up hiring over 500 people a year.
A national database that listed all applicants who’d failed either a urinalysis—which is currently permitted—or a hair test would therefore clearly benefit the larger companies.
But the small owners and operators argue that the largest companies could “do more due diligence” before hiring and compensate drivers per hour instead of per mile to combat their huge turnover rates, Grenerth said.
Asked whether the HHS will meet the Dec. 4 deadline, Brad Stone, a spokesperson for the SAMHSA said that they’re “currently working on the proposed guidelines.” The advisory board working on the issue is scheduled to meet Dec. 7, although the meeting agenda lists only a discussion of “draft” guidelines.
“I haven’t heard any word about anything coming out within the next couple weeks, and doubt there will be,” Kidd told Bloomberg BNA.
The large carriers themselves, in the October petition, said it’s apparent “that HHS will not meet the statutory requirement.” Their petition remains pending and hasn’t yet been opened to public comment, Willis said.
“We also represent railroad workers, airline workers, and other unions, and the way it works is once you have a testing method that’s approved, it gets quickly applied to other sectors covered by the drug and alcohol testing mandate,” Willis said. “So if hair testing were to be allowed for truck drivers for example, it’s very likely it’d be carried over to other employees covered by the mandate. So we see this as a thing not only for truck drivers, but for all transportation workers.”
Unless the government grants the six carriers an exemption—which may do much to move along federal approval for the rest of the industry—the legislative and policy fight over the issue seems likely to continue for some time.
To contact the reporter on this story: Hassan A. Kanu in Washington at firstname.lastname@example.org
Text of the Trucking Alliance’s petition is available at http://src.bna.com/krm.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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