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U.S. Department of Health and Human Services Proposes Guidelines for Hair Drug Testing

The Substance Abuse and Mental Health Services Administration (SAMHSA), U.S. Department of Health and Human Services (DHHS), proposed scientific and technical guidelines for hair drug testing in federal workplace drug testing programs in the Federal Register on September 10, 2020. The proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Hair (HMG) will allow federal executive branch agencies to collect and test hair specimens for pre-employment drug tests and random drug tests.

Hair has a longer window of drug detection than urine. Hair is easily collected, transported and stored, and is also more difficult to substitute and/or adulterate than urine since collections are performed under direct observation. Hair testing will be limited to pre-employment testing and random testing because hair grows slowly. Drugs generally are not detected in hair for 5 to 7 days after ingestion, so hair testing is not appropriate for reasonable suspicion testing and post-accident testing. DHHS seeks comments as to whether hair testing may be used for return-to-duty or follow-up testing.

A federal agency choosing to test hair specimens must authorize collection and testing of at least one other specimen (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 in sufficient amount or length of hair.

The collection process proposed by DHHS provides that the hair specimen will be collected by a trained collector under direct observation. The HMG collection procedure requires that a single hair specimen (at least 100 mg of hair) be obtained from the crown of the donor’s head and as close to the scalp as possible. The specimen is divided into two specimens (A and B) that are placed into separate specimen collection containers. DHHS also proposes collecting another specimen simultaneously (urine or oral fluid). This is intended to protect the workers who are tested because hair testing has been subjected to legal challenges in the past. For this reason, DHHS is specifically requesting comments on advances in the science of hair testing that adequately address the limitations of hair testing and elucidate the extent to which hair color, external contamination and other factors will affect hair tests and the interpretation of hair test results. DHHS also is seeking comments as to whether hair tests that are positive for marijuana should be excluded from the requirement to test an alternate authorized specimen.

SAMHSA will accept comments for the next 60 days electronically at http://www.regulations.gov, or by regular mail or overnight mail to SAMHSA, Center for Substance Abuse Prevention, Division of Workplace Programs, 5600 Fishers Lane, Room 16N02, Rockville, MD 20857.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 254

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About this Author

Kathryn J. Russo Disability Lawsuits Attorney Jackson Lewis Law firm Alcohol Testing Lawyer
Principal

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S....

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