Guidelines for Drug Testing Hair Proposed

Critics, advocates point out proposal’s flaws

Roy Maurer By Roy Maurer October 1, 2020

​The U.S. Department of Health and Human Services (HHS) has taken the first step in authorizing federal agencies and contractors—and subsequently, safety-sensitive industries—to include hair in regulated drug testing programs.

The agency issued a proposed rule outlining guidelines on using hair for pre-employment and random drug testing. Both advocates and opponents of testing have cited flaws in the proposal.

While the HHS rule would apply only to federal employees and contractors, industries regulated by the Department of Transportation (DOT), including trucking, airline and railroad companies, would have to follow the guidelines later when developing their own drug-testing programs. Employers can currently use hair testing if state law allows it—and many do, especially in the trucking industry—but the procedure may not yet be used to satisfy federal drug-testing requirements.

"Hair testing potentially offers several benefits when compared to urine [the most-used testing method], including directly observed collections, ease of transport and storage, increased specimen stability, and a longer window of drug detection," said Elinore McCance-Katz, assistant secretary at the Substance Abuse and Mental Health Services Administration, the HHS subagency overseeing the guidelines. "Hair has been used in nonregulated testing programs including the transportation and casino industries, and other situations when longer detection periods may be needed," she said.

Employers like it because of the longer drug detection window, said Kathryn Russo, an attorney in the Long Island, N.Y., office of Jackson Lewis. "It's popular for pre-employment and random testing because it gives a better sense of whether the person is habitually using drugs or not."  

Urine tests typically cover the previous 2-4 days, whereas the detection period for hair can last much longer depending on the length of the specimen. HHS is proposing testing head hair specimens between 0.5 and 1.0 inches long, representing a detection period of approximately 30-60 days, for pre-employment and random testing only.

"Hair testing is not appropriate for reasonable suspicion testing and post-accident testing because you want to know whether the person used drugs on the day of the test," Russo said. "Drugs generally are not detected in hair for 5 to 7 days after ingestion, so it's not helpful for those cases."

The proposal is the latest effort to expand federal drug screening to include specimens besides urine. HHS finally expanded testing to include oral fluid in 2019. Hair-based testing was initially discussed in 1997, and a proposed rule was offered in 2004 before being rejected amid concerns over accuracy. The origins of the current proposal date back to 2015.

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Benefits of Drug-Testing Hair

The proposed rule lists the reasons that employers may want to consider hair testing, including for when employees or applicants are unable to provide sufficient urine or oral fluid for a drug test, for its ease of collection and because it's harder to cheat it since collection is directly observed. Positivity rates are much higher in hair due to the longer detection window.

"Trucking firms recently released data showing that hair testing had a 13-times higher detection rate than DOT-mandated urine testing," said Allen Johnson, vice president of marketing for Acton, Mass.-based Psychemedics Corp., a pioneer in hair testing for drugs. "The person tested has no chance to evade the test through sample tampering or temporarily stopping drug use," he said.

A study comparing the dual hair testing and urine testing of drivers conducted by the Alliance for Driver Safety and Security found that urinalysis missed 90 percent of illicit drug users.

Wilson Risinger, vice president of safety for KLLM Transport Services, a trucking firm in Richland, Miss., said that once his company saw the data from industry peers "it became a pretty sobering realization for us that we were missing a lot of drug users doing only urinalysis. People could just stop using drugs for a few days before orientation and pass the urine drug screen."

KLLM started hair testing in 2018, and since then found more than 900 driver applicants testing positive for drug use with the hair test who had passed the urine test and advanced in the hiring process.

Criticisms of the Proposal

Objections to the HHS proposal have come from all quarters. The American Trucking Associations (ATA), a leading industry group for trucking companies, favors adding hair testing at the federal level and champions its efficacy in detecting drug use, but called the proposed rule a "tremendous disappointment," according to a statement from president and CEO Chris Spear.

The organization's biggest concern was the requirement that a second, alternate specimen (either urine or oral fluid) be collected either simultaneously or after verification of a positive hair test result. The agency's two-test approach is "intended to protect workers from issues that have been identified as limitations of hair testing, and related legal deficiencies," McCance-Katz said. "An employment action taken on the basis of a positive hair test alone, without other corroborating evidence, may be vulnerable to legal challenge." 

ATA said the redundancy undermines hair testing's effectiveness, defeats its purpose as a deterrent and could create frustrating discrepancies in the results.  

Christine Lamb, an employment lawyer and partner at Fortis Law Partners in Denver agreed that the provision is confusing. "If the positive hair test is invalidated by the urine test, which has a much smaller detection window, then why do it?" she asked. "Duplicative testing only increases the cost of testing to employers."  

There are also many critics of the proposal who contend that hair testing is not worth it given the issues which led HHS to devise a two-test approach in the first place.

"Drug testing should get at the issue of identifying and deterring impairment, not casting a wide net and causing unnecessary problems," Lamb said. "I would ask my clients what they are testing for. Do they really care about someone's off-duty conduct 90 days ago, or do they want to know if they are being unsafe at work now?"

The proposed rule lent fuel to the fire by explicitly outlining what HHS referred to as the method's "limitations." These included false positives from environmental contamination of hair and disparities from person to person based on hair color.

HHS acknowledged that studies "provide scientific evidence that melanin pigments may influence the amount of drug incorporated into hair," which could lead to variances among people and false positives.

Lamb said she would caution her clients considering hair testing for several reasons. "One of the big ones is the disparate impact on minorities [with darker hair]," she said. "You can't imagine any other test where that would be allowed."

Johnson rebutted the agency's stated deficiencies of hair testing, saying that several independent studies over the years have concluded neither hair color nor hair type effect the results of a hair test for drugs. "A comprehensive study presented in Criminal Justice Review concluded that there's no evidence that one group or race was more adversely affected by hair testing compared to urine testing," he said.

Johnson added that separate studies, including one by the FBI, have shown that an aggressive decontamination wash procedure can eliminate any chance of a false positive due to external contamination. "Hair testing has also been upheld dozens of times by state, federal and administrative courts across the country through the past 25 years," he said.

Last month SHRM Online reported that positive drug tests in 2019 reached a 16-year high, and even more positive test results are expected this year due to the enormous increase in anxiety and stress brought on by the coronavirus pandemic.



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