Congress is poised to let the commercial trucking and bus industries rely solely on hair drug tests that have been found to have two troubling problems: Black people are more likely to test positive than whites, and the tests can show people have used drugs even when they haven't.
Both the Senate and the House of Representatives have added provisions to a multi-year transportation funding bill that would allow trucking and bus companies to ask their six million employees to submit hair instead of urine to fulfill their Department of Transportation-mandated drug testing. Studies have shown that drug metabolites bind more tightly to hair that contains more melanin, or dark pigment. Hair tests are also more likely to detect trace amounts of drugs picked up from physical contact that may not indicate actual drug use. Cocaine metabolites, for example, can be found on almost all $20 dollar bills currently in circulation.
In other words, hair tests are more likely to falsely indicate drug use, and are also more likely to come up positive when used on African Americans. More research and strict, uniform standards across hair testing labs might be able to mitigate these issues, but those aren’t in place.
Although the House announced Thursday morning that their version of the transportation bill would require scientists at the Department of Health and Human Services (HHS) to establish standards for hair-based drug testing first, the Senate version would allow hair drug testing to begin immediately. Some toxicologists, unions and civil rights advocates are concerned that if the Senate version of the bill passes, a lot of people who haven’t actually ingested drugs could lose their jobs, and black workers would be disproportionately affected.
“Drug testing has a long history of being carefully managed and regulated by HHS. Now lawmakers who don’t have any idea what they’re talking about on this issue are saying hair testing is the solution to all of our problems, and they’re just going to create chaos,” President of the AFL-CIO’s Transportation Trades Department Edward Wytkind told BuzzFeed News. “They put this in for the truck lobby, and we’re pretty mad.”
The trucking industry prefers hair testing because hair can show evidence of drug use during a much longer time period than urine, and could theoretically prevent long-term drug users who avoid getting high in the weeks before a urine test from later getting into accidents on the road. Testing data from large trucking companies consistently shows that far more people test positive for drugs on hair tests than urine tests.
When trucking giant J.B. Hunt started doing hair drug testing in addition to the DOT-mandated urine testing in 2006, 3,221 drivers failed the test in the next seven years. Only 90 of those drivers also failed the urine test.
“People with positive hair tests obviously do not need to be behind the wheel,” J.B. Hunt vice president of safety and security Greer Woodruff told the Arkansas Business Publishing Group in 2013. “These are the kind of people we screen out, and we think if more companies could do hair testing and share the results, we could move these people off the roads and out of commercial vehicles.”
Although private employers such as J.B. Hunt, General Motors, and Shell Oil already use hair drug tests as a basis for hiring and firing workers, the labs that do the testing have yet to come to a clear and consistent consensus on their techniques, including how they do an initial decontamination wash and the minimum threshold for a positive result.
Both state and federal courts have confirmed there are problems with the accuracy and racial biases of hair-based drug testing and with the inconsistent methods used by Psychemedics, the leading provider of hair drug testing.
In a lawsuit stemming from the Boston Police Department’s use of hair-based drug testing, the Massachusetts Civil Service Commission found in 2013 that “a positive hair test does not provide the 100% irrefutable evidence of drug ingestion.”
There are two main reasons for this. First, numerous studies have shown that environmental factors can contaminate hair, meaning that staying in a hotel room where someone has snorted cocaine the day before, for example, could potentially cause you to test positive on a hair drug test without ever getting high. Second, the court found that hair drug-testing labs have so frequently changed their methods and standards that some of the police officers in the suit were fired for trace levels of drug metabolites found in their hair that would not have been enough to get them fired a few years earlier.
In a separate lawsuit filed by the same Boston policemen, the U.S. Court of Appeals found that the aggregate difference in how white cops and black cops fared on hair drug tests between 1999 and 2006 proved “beyond reasonable dispute” that hair testing is discriminatory. In addition to the evidence that drug metabolites cling more tightly to hair that has more melanin, one recent study done by researchers at the Naval Research Laboratory shows that certain “ethnic hair care products” can increase the susceptibility of hair to environmental contamination.
In a letter to the House of Representatives’ Transportation and Infrastructure Committee, Bill Graves, the President of the American Trucking Associations, an industry lobbying group, called claims that hair drug tests are racially biased and can be contaminated by environmental factors “unfounded and overblown.” Graves further insinuated that black people might simply be more likely to use drugs, writing that “different ethnic groups have different patterns of drug use.”
According to the Department of Health and Human Services, whites and blacks use illicit drugs at nearly identical rates, 9.5 percent to 10.5 percent, but African-Americans are far more likely to be arrested for drug offenses.
Ron Flegel, a forensic toxicologist and the Director of the Division of Workplace Programs at the Substance Abuse and Mental Health Services Administration under HHS, said that he believes that the lack of standards in hair drug testing labs and in the decontamination process makes the research involving race, hair pigment, and drug testing inconclusive.
“There is science on both sides,” he told BuzzFeed News. “Some science shows there is no impact, but other science shows there is an impact due to the melanin issue.”
Flegel said he is hoping this legislative push to establish industry guidelines will give his agency the opportunity to raise standards at labs across the country, as they have with urine testing. As it stands now, labs are not held to any hair drug testing regulations. Flegel said he believes that if HHS establishes a set of standards, the rest of the labs will voluntarily fall in line—even if the Senate version of the transportation bill passes and they must do so after federally mandated hair testing has already begun.
“A private sector employer who wants to drug test you can do any damn thing they want to. You could test with a Oujia board,” National Workrights Institute President Lewis Maltby told BuzzFeed News. “There’s no quality threshold they have to pass to stay in business. This is why hair testing is notoriously inaccurate and racially biased.”