A federal agency is seeking to add hair testing to the government’s arsenal of workplace drug screening tools, despite evidence that the process is unreliable and may lead to racial bias. The proposed rule change by the Substance Abuse and Mental Health Services Administration (SAMHSA), which was published in the Federal Register last week, comes even though the tests have been rejected by the government several times in the past.
If adopted, the rule change would allow hair testing for workers employed by federal agencies and federally regulated industries. SAMHSA wrote in the proposal that “hair testing potentially offers several benefits when compared to urine,” including “a longer window of drug detection.”
Process Is UnreliableBut because the process can return a positive result months after drug use, it is not a reliable indicator of impairment. Additionally, studies have shown that hair drug testing results are influenced by hair color. Because darker hair absorbs more drug metabolites than lighter colors, the results of the tests can be unfairly biased against members of the Black and Hispanic communities.
The agency admitted the existence of “scientific evidence that melanin pigments may influence the amount of drug incorporated into hair,” noting that “codeine concentrations in black hair were seven-fold higher than those in brown hair and 14-15-fold higher than those in blond hair.” SAMHSA added that these findings “have raised concerns that selective drug binding with the wide variation of color pigments distributed amongst the population may introduce bias in drug test results.”
To address the inherent weaknesses of hair drug testing, SAMHSA notes that a second positive test via a saliva screening or urinalysis would be required to confirm the original results. The agency wrote that “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.”
SAMHSA also noted that “an employment action taken on the basis of a positive hair test alone, without other corroborating evidence, may be vulnerable to legal challenge.”
NORML Slams ProposalPaul Armentano, the deputy director of the National Organization for the Reform of Marijuana Laws (NORML), slammed the federal government’s proposal to use hair drug testing in a press release.
“It is mind-boggling that the federal government is revisiting this half-baked proposal now,” Armentano said. “Given the heightened awareness surrounding the need for social and racial equity, the idea of proposing a testing procedure that will inherently deny more people of color opportunities than it would others who have engaged in exactly the same activities is beyond tone deaf and counterproductive.”
“Hair follicle testing is well established to possess limited probative value, which is why it has never gained a particularly strong foothold in the general workplace. Federal authorities have also rejected the inclusion of hair follicle testing in the federal workplace drug testing guidelines on multiple occasions dating back decades” NORML wrote in the statement. “The newly proposed rules explicitly recognize the technology’s many limitations, acknowledging that ‘a positive hair test alone, without corroborating evidence, may be vulnerable to legal challenge.’”
If the proposed rule change is approved, it is likely to be adopted by other federal agencies including the Department of Transportation and the Nuclear Regulatory Commission as well as companies in the industries they regulate. SAMHSA estimates the rule change would lead to 275,000 hair tests for drugs by federal agencies and more than 1.5 million tests in the private sector each year.
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