President Trump signed into law on October 24, 2018, a bill requiring the U.S. Department of Health Human Services to update current protocols used for hair drug testing. The law, H.R.6 – SUPPORT for Patients and Communities Act, was part of a package of laws passed by Congress on a bi-partisan basis, to address the growing problem with opioid addiction, treatment, and recovery.
The bill, among its many provisions, requires the Substance Abuse and Mental Health Services Administration (SAMHSA) to establish guidelines for the testing of hair. Currently, SAMHSA has provided guidance for drug testing by using urinalysis. The new law will expand testing beyond the testing of urine to include hair follicle samples and oral fluids.
Purpose of this law
The law is the consolidation of two separate Congressional bills, H.R. 6 and S. 2680. The respective bills were bipartisan efforts put forth by Congress to address those deaths caused by overdose related to the use of fentanyl and fentanyl analogs, also known as opioids. According to the National Institute on Drug Abuse (NIDA), of the 72,000 drug overdose deaths in 2017, an estimated 30,000 of them were attributable to opioids. The growing problem has been identified by the President and members of Congress as a high priority legislative issue, requiring a comprehensive approach from both sides of the aisle to address.
SAMHSA guidelines for drug testing set forth rules for the types of tests that may be used in a workplace drug-testing program. These programs, which must meet the requirements of the law and rules set forth by the agency (through HHS), are designed to detect the presence of any illicit drug, including prescription drugs which may be improperly used (such as highly addictive opioid class drugs), and alcohol.
The presence of any of these intoxicants in a person’s body can create an impairment that may be life threatening or pose significant risk in the workplace. This is especially true of those employees (both federal and non-federal) who are engaged in any type of service dealing directly with the public in a way that impacts safety, such as transportation. Employers implementing a workplace drug-testing program under applicable local, state, and federal rules must tailor their testing programs to adhere to the new guidelines, once they have been made available through the Federal Register.
Timetable for implementation
The act requires HHS and its related agencies to develop rules that will include guidelines for the use of hair follicle samples for drug testing. These guidelines must be developed within 60 days after passage of the law. In addition to the new guidelines, the law requires the Secretary of HHS to provide a written explanation to Congress as to the reason why guidelines have not been put in place as of date for the inclusion of hair drug testing. Finally, the HHS Secretary must provide Congress with an estimate as to when the department, through its agency SAMHSA, will be providing the legislated guidelines for hair testing.
Guidelines for hair testing was initially included in the FAST Act of 2015. The bill, known as the Fixing America’s Surface Transportation, passed with overwhelming bipartisan support and was signed into law by former President Obama on December 4, 2015. It specifically permitted motor carriers to use hair testing as part of pre-employment screening for controlled substances, as well as for random employment checks.