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D. M. Moschos

 D. Moschos



Corey Higgins

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January 05, 2016
Drug Testing of CDL Drivers Through Use of Hair Samples on Hold
On December 4, 2015, President Obama signed the Fixing America's Surface Transportation Act (the "Act") which will provide $305 billion in funding for the Nation's federal transportation projects.  Among numerous other provisions, the Act limits the testing of commercial driver's license ("CDL") holders for drugs through the use of hair samples until the U.S. Department of Health and Human Services ("HHS") issues guidelines on such hair testing.  Labor groups have opposed the use of hair testing, stating that differences in hair texture among races can cause false readings and may result in race discrimination based on disparate impact.  That is, although the testing regimen is race neutral, such testing may, nonetheless, disparately impact minorities as a result of false positive test results.   

The Act requires HHS to issue guidelines on hair testing of CDL holders within one year.  Until the guidelines are issued, employers may not conduct drug tests through the use of hair samples for CDL holders.  Although the Act and the anticipated guidelines have no direct bearing on testing of non-CDL holders, employers who currently rely on hair samples for drug testing can be certain that the Act and its underlying rationale will be cited by non-CDL employees who face disciplinary action following a hair-based drug test.  While it is possible to defeat a disparate impact challenge by establishing that the drug testing practice is job related for the position in question and consistent with business necessity, and that an alternative test or practice that would satisfy the legitimate business need, without a similarly undesirable racial impact, is not available, it is clear that mounting such a defense will prove financially expensive in light of the need for expert statistical analysis.

Accordingly, we recommend that employers who currently rely on hair sample testing discontinue the practice or seek advice of counsel if the practice is to be continued.   
In addition to the above, it is important to recognize that drivers with established religious beliefs that prohibit the cutting or removal of hair will be exempt from hair testing. 

If you have any questions on the use of hair-based drug testing, please contact us. 

Labor, Employment & Employee Benefits Group  

Mirick O'Connell

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Worcester, MA  01608

t 508.791.8500

f 508.791.8502


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Westborough, MA  01581

t 508.898.1501

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Mirick O'Connell is a full-service law firm with offices in Worcester, Westborough and Boston, Massachusetts.  The Firm's principal practice groups include Business;
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This client alert is intended to inform you of developments in the law and to provide information of general interest.  It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.