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Department of Health and Human Services (HHS) Substance Abuse and Mental Health Services Administration (SAMHSA) publishes Notice of Proposed Rulemaking on Hair Testing

This morning, September 10, 2020, the US Department of Health and Human Services published a Notice of Proposed Rulemaking in the Federal Register entitled Mandatory Guidelines for Federal Workplace Drug Testing Programs at Vol. 85, No. 176. This proposed rulemaking would permit hair testing for federal program testing after a final rule is published. Please note that this proposed rulemaking does not relate directly to Department of Transportation testing at this time because adding hair to the DOT permitted specimen list requires a separate rulemaking initiative.

Please also note that this is a proposed rulemaking and it will take some time for this rulemaking to go through a public comment period and become finalized. After, and when/if, the rule is finalized as revised or as published today, the Department of Transportation would need to do its own separate rulemaking for hair to be permitted for DOT Agency Testing (FAA, FTA, FRA, FMCSA, PHMSA and Coast Guard). So, this process is in the very preliminary stages.

The Executive Summary and Summary from the proposed rule follows:

Executive Summary

This notice of proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs using Hair (HMG) will allow federal executive branch agencies
to collect and test a hair specimen as part of their drug testing programs with the limitation that hair specimens be used for pre-employment (i.e., for
applicants applying for federal testing designated positions) and random testing. A federal agency choosing to test hair specimens must authorize
collection and testing of at least one other specimen type (e.g., urine or oral fluid) that is authorized under the Mandatory Guidelines for Federal
Workplace Drug Testing Programs, and provide procedures whereby the alternate specimen is used in the event that a donor is unable to provide a
sufficient amount of hair for faith-based or medical reasons, or due to an insufficient amount or length of hair.

The proposed HMG require collection of an alternate authorized drug testing specimen in addition to the hair specimen, either simultaneously (i.e., at
the same collection event) or when directed by the Medical Review Officer (MRO) after review and verification of laboratory-reported results for the hair
specimen. This alternate specimen would be tested and reported in place of a donor’s positive hair specimen only in certain circumstances, as described
These proposed HMG establish standards and technical requirements for hair collection and collection materials, initial hair drug test analytes
and methods, confirmatory hair drug test analytes and methods, processes for review by an MRO, standards for certification of laboratories engaged in
hair drug testing for federal agencies’ drug-free workplace programs, and requirements for federal agency actions that are covered by these Guidelines.
The HMG provide flexibility for federal agency workplace drug testing programs to address testing needs by allowing hair as an alternative specimen type. The Department of Health and Human Services, pursuant to the Department’s authority under Section 503 of Public
Law 100–71, 5 U.S.C. Section 7301, and Executive Order No. 12564, establishes the scientific and technical guidelines
for federal workplace drug testing programs and establishes standards for certification of laboratories engaged in
drug testing for federal agencies.

Summary of the Major Provisions of the Proposed HMG

The promulgation of the HMG allows federal agencies to collect and test hair specimens in their workplace drug testing programs. The collection process
provides that the specimen will be collected by a trained collector under direct observation. The HMG collection procedure requires that a single hair specimen be obtained from the donor’s head and divided into two specimens (A and B). The collector places the A and B specimens into separate specimen collection containers. Unlike the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (UrMG), the HMG do not allow Instrumented Initial Test Facilities (IITFs), primarily because of the limited amount of hair collected from the donor. The Department is proposing that an alternate authorized drug testing specimen be collected (i.e., simultaneously collected or collected and tested at the direction of the MRO after verification of a positive hair test
result). As described in greater detail below, this two-test approach is intended to protect federal workers from issues that have been identified as
limitations of hair testing, and related legal deficiencies identified in Jones v. City of Boston, 845 F.3d 28 (1st Cir. 2016) and Thompson v. Civil Service
Com’n, 90 Mass.App.Ct. 462 (Oct. 7, 2016). Both cases indicate that an employment action taken on the basis of a positive hair test alone, without other
corroborating evidence, may be vulnerable to legal challenge. The Department is specifically requesting comments, including support from
recent peer-reviewed scientific literature, on advances in the science of hair testing that adequately address these limitations and elucidate the
extent to which hair color, external contamination and other factors (e.g., hair treatments, hygiene) will affect hair tests and the interpretation of hair drug
test results.

The Department will continue to monitor the science of hair testing and will carefully review peer reviewed literature and other valid
scientific information submitted by federal agencies and the public for scientific support of hair testing. Based on this evaluation, the Department will
decide whether performance standards can be established to mitigate identified limitations and obviate the requirement to collect an alternate authorized
specimen. The Department is also soliciting public comment on the potential added burden to federal agencies and specimen donors should
an alternate specimen be necessary. As noted under Executive Orders 13563 and 12866 in the Regulatory Impact and Notices section of this Notice, the
Department does not find these proposed mandatory guidelines to be a significant burden for federal agencies or incur a significant cost. In addition,
a federal agency is not required to adopt hair testing in their Drug-free Workplace Programs. However, comments provided by the public on the subject of potential added burden could be useful to federal agencies deciding whether to test hair in addition to other specimen types in their federal workplace drug testing programs. In addition, the Department is specifically requesting comments, including support from the recent scientific literature, on whether hair
tests that are positive for the marijuana analyte, delta-9-tetrahydrocannabinol-9-carboxylic acid (THCA), should be excluded from the requirement to test
an alternate authorized specimen (i.e., MROs would report verified positive THCA hair results to the federal agency).

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