Drug Testing Changes

HAIR TESTING – CLOSE TO APPROVAL?

When the FAST Act, the highway funding bill, was passed in 2015 it authorized motor carriers to begin using hair analysis for drug testing purposes. Some large carriers have been doing just that, but they’re also doing the standard urine analysis as well.

The reason behind the duplicate testing is that the FAST Act, while authorizing the switch, also stated that FMCSA can only begin accepting hair sample tests once the Department of Health and Human Services (HHS) establishes guidelines for that type of testing. So far they have not done so.

Recently several large carriers have officially asked FMCSA to allow hair analysis in lieu of urine testing for pre-employment drug
testing. The carriers have been performing the duplicate testing and have compiled data that they believe demonstrates that hair analysis is more reliable and comprehensive. FMCSA will receive comments on this request until February 21, 2017.

So far the only real push back has come from the AFL-CIO. They are urging
FMCSA to not grant the exemption based on the fact that HHS has yet to act on the matter. Proponents of hair analysis argue that testing hair samples provides a longer time frame to detect drug use and can identify chronic drug users.

For example, a person’s body may metabolize drugs within several days. After that it is undetectable in a urine sample. However, by analyzing a hair sample the window for detection is extended to as long as 90 days. When J. B. Hunt began hair testing for new applicants, the positive rate was 15%. The urine based tests on the same drivers had a positive rate of around 4%. Other carriers have experienced similar results.

Although hair testing does seem to offer benefits, there are questions that need to be resolved before it’s accepted as a standard practice. One of the most critical will be to identify from what parts of the body a sample can be collected. Related to that, it will be necessary to have a procedure in place to deal with applicants who have no hair in those areas. Another question revolves around detecting very recent drug use since hair takes some time to grow out. Finally, exact standards need to be developed to identify collection methods, the amount and length of hair needed, and how to ensure chain of custody.

CHANGES TO NIDA 5-PANEL

The Department of Transportation is proposing amending its drug-testing program regulation to add four opioids (hydrocodone, hydromorphone, oxymorphone, and oxycodone) to its drug-testing panel. The Department of Health and Human Services (HHS) recommended adding these four semi- synthetic drugs based on scientific input, private sector experience, and an analysis of current drug abuse trends.

FMCSA is taking this opportunity to make other changes to the drug testing regulations contained in Part 40. For example they are adding the following section:

§ 40.210 Are drug tests other than urine permitted under the regulations? No. Drug tests other than on urine specimens are not authorized for testing under this part. Only urine specimens screened and confirmed at HHS certified laboratories (see § 40.81) are allowed for drug testing under this part.

The changes outlined above are contained in a Notice of Proposed Rulemaking. As such there will be a comment period and then FMCSA will publish a notice of Final Rulemaking. This process takes time so no changes are imminent. It will be interesting to see how HHS and FMCSA handle the exemption request to allow hair analysis based on the new 40.210 language. Most likely things will not move quickly and it seems likely that FMCSA will wait for testing protocols to be developed by HHS before they take action on endorsing hair analysis.

New Acute and Critical Violations

ADDS ELD RELATED VIOLATIONS

FMCSA has added to their list of acute and critical violations that can be found during a motor carrier’s investigation. A number of them relate directly to ELD use:

395.8(a)(1) Failing to require a driver to prepare a record of duty status using appropriate method

395.8(a)(2)(ii) Failure to require a driver to submit record of duty status in a timely manner

395.8(e)(1) Making, or permitting a driver to make, a false report regarding duty status

395.8(e)(2) Disabling, deactivating, disengaging, jamming, or otherwise blocking or degrading a signal transmission or reception; tampering with an automatic on-board recording device or ELD; or permitting or requiring another person to engage in such activity

395.11(b) Failing to require a driver to submit supporting documents

395.11(c) Failing to retain types of supporting documents as required by
§39 5.11( c)

395.11(e) Failing to retain supporting documents in a manner that permits the effective matching of the documents to the driver’s record of duty status

395.11(f) Altering, defacing, destroying, mutilating, or obscuring a supporting document

395.30(f) Failing to retain ELD information

396.11(a)(3) Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again

You can count on us to provide expert guidance to keep your safety and compliance programs on track.

Ryan Billet
National Transportation Consultants, Inc.