Hair testing in a laboratory. (psychemists)
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It’s been more than six years since Congress directed the Department of Health and Human Services to pass a drug testing rule that allows the use of hair samples from drug test drivers and other federal security-sensitive employees.
Is the long wait coming to an end now?
The latest prediction, according to the chair of a federal drug testing advisory board, is that if all goes according to plan, the rule will be finalized by mid-summer.
But not everything has really gone as planned, at least so far. Though the Federal Drug Board has been busy crafting the rule since it was first enforced by Congress in December 2015, HHS has faced challenge after challenge. The most recent controversy came in 2020, when the agency’s proposed hair testing rule drew harsh criticism from the trucking industry for requiring positive drug hair test results to be verified by a subsequent urinalysis test.
Now the draft of the final rule — discussed last month in a closed meeting by members of the Drug Testing Advisory Board of the Drug Testing Administration of the Drug Abuse and Mental Health Services Administration — is being reviewed by HHS but has yet to be reviewed and approved by the White House Office of Management and Budget before it can be placed on the Federal Register, said Ron Flegel, chairman of the advisory board.
“I can’t speculate, but it was an agreed upon timeline,” Flegel said.
SAMHSA is a subdivision of HHS, the ultimate decision-making agency responsible for drug testing. The Drug Testing Advisory Board consists primarily of drug testing lab executives.
“What I can say is that we have received feedback. Those comments have been reviewed and they are going back for HHS review,” Flegel said. “OMB is the final arbiter of the mandatory guidelines. It is still under final review. If we stick to the unified calendar date, the public will see the revisions. I think I can say we are on track.”
“We keep hearing that summer is the target date,” said Dan Horvath, vice president of safety policy for American Trucking Associations. “However, what remains to be seen is whether this will be a final rule or another round of proposed guidelines.”
JB Hunt has provided extensive guidance on the proposed rule by the Department of Health and Human Services that would establish guidelines for hair testing and allow for an alternative to urine and oral fluid testing for certain types of regulated testing,” said Greer Woodruff, senior vice president of occupational safety, security and driver personnel at JB Hunt. “The proposal is currently under review by the Office of Management and Budget. We will continue to monitor progress and anticipate the approved HHS guidelines to be released in mid-summer, hopefully incorporating our recommendations.
JB Hunt has been drug testing for years and reported having good results using hair samples. Hunt has argued that hair testing is an effective way to reveal lifestyle drug users.
JB Hunt is ranked #4 on the Transport Topics Top 100 list of the largest rental carriers in North America.
“I don’t disagree that this rule has been difficult,” said Flegel. “The assessment has taken quite some time.”
But you may wonder why some labs have been doing hair testing for years, but federal agencies have struggled to come up with a definitive rule for hair testing fighters?
Flegel said there have been concerns about hair color irregularities, first raised in a lawsuit filed against the Boston Police Department.
In addition, the agency had to review hundreds of public comments, many of them “significant” about the need for a standalone rule.
Flegel said the drug advisory committee took those comments into account, but declined to discuss details.
Public comments from the trucking industry were mostly negative about the rule proposed in September 2020, as hair testing could not be a “stand alone” test. The proposed rule would allow carriers to test employees or prospective employees using hair samples, but positive test results would still need to be validated with a subsequent urine test.