Enhanced Drug Testing for Commercial Drivers Coming This Year

Hair-follicle testing—with its benefits and concerns—to be allowed

Roy Maurer By Roy Maurer March 14, 2016

Employers of commercial motor vehicle operators will be able to conduct hair-follicle drug tests on drivers once federal guidelines—mandated for publication this year—are issued.

The Fixing America’s Surface Transportation Act, signed into law in December 2015, directs the U.S. Department of Health and Human Services to issue scientific and technical guidelines for the use of hair-testing commercial motor vehicle drivers for drug use within one year of the law’s enactment.

According to section 5402 of the act, motor carriers shall be permitted to use hair testing as an acceptable alternative to urine testing in conducting pre-employment drug screens and in conducting random testing for the use of a controlled substance if the driver was subject to hair testing during a pre-employment screening.

An exemption from hair testing will be provided to truck drivers with established religious beliefs that prohibit the cutting or removal of hair, such as Sikhism or Rastafarianism.

Until the new regulations are issued, only urine tests are allowed. Hair-follicle testing is considered by many to be more accurate than urinalysis, as it can detect drug use over a much longer period and is said to be better at revealing chronic drug use.

Hair testing is the only drug-testing method available that provides up to a 90-day drug-use history, according to Dr. Barry Sample, director of science and technology at Quest Diagnostics Employer Solutions, a drug-testing service provider headquartered in Madison, N.J. When compared with urine testing, hair testing tends to provide a greater number of positives due to its longer detection window.

“Our hair testing detects nearly twice the number of positives as our urine test,” Sample said. “Unlike urine drug testing, which may only detect drug use within the past two to three days, hair testing is able to detect a pattern of repetitive drug use for up to 90 days.”

Hair testing cannot determine very recent use, however—because hair grows slowly—so it cannot be used for reasonable suspicion drug tests or post-accident testing, said Kathryn Russo, an attorney in the Long Island, N.Y., office of Jackson Lewis and one of the practice leaders of the firm’s Drug Testing and Substance Abuse Management Practice Group.

Another reason some employers prefer testing hair rather than urine is because of the popularity of devices and chemicals available on the Internet to assist people in “beating” urine tests, Russo said.

Prohibitions and Challenges

Tricky issues around hair-testing for drug use include potential violations under the Americans with Disabilities Act (ADA) and federal and state anti-discrimination laws, as well as retesting concerns.

“If an individual used drugs 90 days ago and then completed drug rehabilitation, he or she conceivably could still test positive on a hair test, even though he or she is no longer a current user of illegal drugs,” Russo explained. “If the company takes adverse action based on the positive hair test, the applicant or employee could claim that he or she is erroneously regarded as a substance abuser when he or she is not, in violation of the ADA and comparable state laws.”

Retesting brings up another issue for employers considering using hair samples for drug tests. Maine, Maryland, Minnesota, North Carolina, Rhode Island, Vermont and Boulder, Colo., require that applicants and employees who test positive must be offered the opportunity to have a confirmatory retest on the original specimen, Russo said. “Retesting the original specimen may be technically difficult or impossible. We have been advised by individuals in the drug-testing industry that hair testing does not permit later testing of the original specimen, but employers should check with their own drug-testing vendors to get their technical expertise on this issue,” she said.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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