Exemption sought to allow for a positive hair test to constitute actual knowledge

Posted August 26, 2022

The Trucking Alliance submitted an application to the Federal Motor Carrier Administration (FMCSA) for an exemption from 49 CFR 382.107. Specifically, they are seeking an exemption that would allow them to use a positive hair test as actual knowledge of a driver’s use of a controlled substance. If allowed, this actual knowledge would result in the driver’s drug violation being reported to the Drug and Alcohol Clearinghouse and the driver needing to complete the DOT return-to-duty process.

While FMCSA is accepting comments on Trucking Alliance’s application, they prefaced the request with a qualification, saying “FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until the Department of Health and Human Services has taken certain action. . . .” FMCSA and other Department of Transportation (DOT)-regulated agencies must follow HHS testing requirements, which means that HHS must amend their drug testing guidelines to allow for the use of hair samples before FMCSA can follow suit.

In May, HHS submitted a request for comments on a proposed change that would allow for oral fluids to be used for drug testing. HHS has not proposed accepting hair testing. Currently, only urine testing is allowed.

This article was written by Jen Loomis of J. J. Keller & Associates, Inc.