Federal Highway Bill Would Allow Hair Testing for Pre-Employment And Random Testing

The U.S. House approved its version of the Highway Bill on November 5, 2015. The long title of the Bill is the “Surface Transportation Reauthorization and Reform Act of 2015” or STRR for short and contains language supported by the American Trucking Associations as well as many large motor carriers that would allow the use of hair testing in lieu of conventional urine testing for drugs.

The House and Senate versions (the Senate approved their version in June) of the Highway Bill which will now go through conference committee where differences are worked out between two different versions of the Bill and expectations are for the Bill to be on the President’s desk before Thanksgiving for signature. The Senate version contains a provision that allows for hair testing in lieu of urine testing so it can be expected to be in the final Bill sent to the President.

The key language in the Bill allowing hair testing reads as follows and has a rather tricky part that only allows hair testing for DOT random drug tests if the driver was subjected to hair testing as part of their pre-employment test.

SEC. 5402. DRUG-FREE COMMERCIAL DRIVERS.

(a) IN GENERAL. — Section 31306 of title 49, United States Code, is amended —

(1) in subsection (b)(1) —

(A) by re-designating subparagraph (B) as subparagraph (C);
(B) in subparagraph (A) by striking “The regulations shall permit such motor carriers to conduct pre-employment testing of such employees for the use of alcohol.”; and
(C) by inserting after subparagraph (A) the following: (B) The regulations prescribed under subparagraph (A) shall permit motor carriers —
“(i) to conduct pre-employment testing of commercial motor vehicle operators for the use of alcohol; and
(ii) to use hair testing as an acceptable alternative to urine testing — (I) in conducting pre-employment testing for the use of a controlled substance; and (II) in conducting random testing for the use of a controlled substance if the operator was subject to hair testing for pre-employment testing.”

(2) in subsection (b)(2) —

(A) in subparagraph (A) by striking ‘‘and” at the end; (B) in subparagraph (B) by striking the period at the end and inserting “; and”; and
(C) by adding at the end the following: “(C) shall provide an exemption from hair testing for commercial motor vehicle operators with established religious beliefs that prohibit the cutting or removal of hair.”; and

(3) in subsection (c)(2) —

(A) in the matter preceding subparagraph (A) by inserting ‘‘for urine testing, and technical guidelines for hair testing,’’ before ‘‘including mandatory guidelines’’; (B) in subparagraph (B) by striking ‘‘and” at the end; (C) in subparagraph (C) by inserting ‘‘and’’ after the semicolon; and (D) by adding at the end the following: “(D) laboratory protocols and cut-off levels for hair testing to detect the use of a controlled substance;”.
(b) GUIDELINES. — Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall issue scientific and technical guidelines for hair testing as a method of detecting the use of a controlled substance for purposes of section 31306 of title 49, United States Code.

Editorial note: While the level of confidence is high this provision will make it to the President’s desk for his signature, a coalition of labor groups is pressing House and Senate conferees to strip the language. Organized labor believes that allowing hair testing should be rejected until, “…the validity and reliability of this testing method can be determined by the Department of Health and Human Services.”

Groups associated with the effort to stop hair testing include: the American Civil Liberties Union, the International Brotherhood of Teamsters, the Transportation Trades Department (part of the AFL-CIO), the Transport Workers Union of America, the United Steelworkers, the National Workrights Institute and the Brotherhood of Railroad Signalmen.

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