Feds don’t want pot-smoking truckers driving, but struggle with drug testing rules

The federal government has been trying for three years to figure out a way to test truck drivers for drug use on the job. Experts estimate it will take another three years for any guidelines to be in place.

The government’s plan would test hair follicles. The trucking industry is eager for some kind of enhanced test, fearing that as more states make marijuana use legal, the need grows for identifying drug-using drivers.

Truck drivers are subject to certain federal standards. Drivers are currently required by the Department of Transportation to submit to pre-employment and random urine-based drug testing throughout their careers. Currently a company is required to randomly drug test 10 percent of its drivers every year.

Some larger trucking companies have for years called the DOT’s urine tests ineffective and have opted to test employees by examining hair samples for traces of illegal substances. Employees who fail a hair test can be denied employment, but because of a lack of federal guidelines they can’t be reported to the DOT.

In 2015, President Barack Obama signed a law which mandated that the DOT and other federal agencies put together comprehensive hair testing guidelines by December 2016.

But the guidelines are still awaiting federal approval, a process that could take another three years, according to Kidd and other industry experts.

It’s not clear why the process has taken so long.

The Department of Health and Human Services, the federal agency which is supposed to help author the guidelines, just approved and forwarded on its version of the guidelines to the White House’s Office of Management and Budget earlier this month. A spokesperson for Health and Human Services declined to provide further detail.

While every trucking company is required by law to administer the urine tests, about 5 percent of trucking companies use hair testing along with the required urine test, said Lane Kidd, the managing director of the Trucking Alliance, a group focused on advocating for safety reform in the trucking industry.

The proposed federal guidelines won’t force trucking companies to do hair testing, but it will allow for failed hair test results to be entered into a national database that can be accessed by trucking companies, Kidd said. So every company will know if a potential applicant failed a drug test.

Currently, Kidd said, a driver could fail or refuse a hair test at one company and then easily pass a urine test at another company that doesn’t utilize hair testing.

In early June, the Trucking Alliance submitted a survey to congressional transportation committees. The survey, looking to measure the effectiveness of various drug testing methods, asked several larger trucking companies that perform both hair and urine pre-employment testing to turn over thousands of drug test results to the Trucking Alliance.

The survey compared the urine and hair test results of more than 150,000 people applying to be truck drivers. Less than 1 percent of all trucking applicants failed the federal urine test, the survey found, while almost 9 percent of all applicants failed or refused to take a hair test.

According to the survey, the federal urine test missed over 10,000 actual drug users.

“It’s safe to assume that most drug users are skirting the system and are avoiding getting caught,” Kidd said. “It really makes the current drug testing method, if not a joke, it’s almost one.”

Kidd and the Trucking Alliance have urged the federal government to adopt the federal hair testing guidelines more quickly.

“The regulatory process within the federal government moves at a snail’s pace,” Kidd said. “If we were to find out that we had a similar problem in the airline industry and if we found that many more airline pilots failed a hair test and passed a urine test then how long would take for us to do something about that?”

Many smaller trucking companies are not complaining about the lack of guidelines. Members of the Owner-Operator Independent Drivers Association, a national group of mainly small business truck drivers, have repeatedly said that the hair follicle drug testing could lead to more false positive drug tests and racial discrimination.

Andrew King, a research analyst with the association, said it’s possible that traces of an illegal substance could be more easily identified in an individual with darker hair.

There have been other race-based challenges to hair testing. A court case in Massachusetts, filed against the Boston Police Department, alleges that the department’s hair testing policy is racially discriminatory. The case still does not have a decision.

It can take days for traces of an illegal substance to become detectable in someone’s hair. King was critical of the delay, adding that a hair test could detect drugs used months ago, but not a few days before the test.

Some members of Congress have been worried that with the legalization of recreational marijuana in more states, truck drivers who live in or pass through those states could become more susceptible to failing a hair test.

“In states where marijuana is legal, it’s going to show up in their next hair test, even though they’ve never abused their privilege of driving or imbibed while driving,” said Rep. Peter DeFazio, an Oregon Democrat who chairs the House Transportation and Infrastructure Committee

Rep. Rodney Davis of Illinois, the top Republican on the Highways and Transit subcommittee, said crashes potentially caused by drivers who were impaired by the effects of marijuana consumption could be brought down by technology, similar to a breathalyzer that would allow law enforcement to test for THC, the chemical within cannabis which causes the high, on the roadside.

Many states are yet to even establish laws that state the legal THC level for drivers.

“We haven’t established what is the safe THC level to be able to operate not just a semi-truck but a freaking electric scooter,” Davis said.