Robert E. Klein/AP Photo
A Delta Air Lines flight attendant demonstrates safety measures, Boston Logan International Airport, November 10, 2016.
The transportation workforce instability and a worker-friendly job market both brought on by COVID show no signs of letting up. Flight attendants flee regional carriers for higher pay, better routes, and other perks with legacy airlines. Bus drivers quit in droves, forcing transit systems to offer signing bonuses, while merchant marine crews grapple with endless weeks working on ships waiting to get into clogged ports. What could make this work more unsettling? A proposed Department of Health and Human Services pre-employment drug testing regime that could render millions of employees in safety-sensitive positions—pilots, flight attendants, railway engineers, mariners, and truckers and others—ineligible for work or send them out of the industry altogether.
The transportation sector currently has some of the toughest and most intrusive drug screening regulations in the country. Pre-employment drug testing is often a standard feature of many of these jobs: More than 12 million workers in safety-sensitive positions undergo Department of Transportation screening for amphetamines, cocaine, marijuana (THC), opioids, and phencyclidine (PCP). Now, proposed new rules would make missing a test the same as flunking it and pose other hazards to job applicants in the transportation sector.
Under the proposed HHS pre-employment screening rule, a job seeker who fails to show up for a drug test registers as having refused to take the test, which, in turn, would be designated as a positive drug test result. This “positive test”—even if that person decided not to take the job associated and even though no actual test was ever taken—compromises current and future job prospects. (The Department of Transportation adopts HHS scientific rules for drug testing, but can opt out of certain non-medical ones. DOT drug screenings are above and beyond any screenings that an employee’s firm also requires.)
“Where it becomes complicated is now you have that in your record,” says Greg Regan, president of the AFL-CIO’s Transportation Trades Department, which commented on the proposed rules. “So, that when you’re applying for the next job, [an employer] could look at that and [say] well, this might not be a person we want to hire because they’ve already refused one drug test.”
Heather Healy, director of the Association of Flight Attendants’ employee assistance program, explains that when a flight attendant participates in an open house–style “cattle call” for an airline, that person usually has applications out to other airlines as well. Legacy airlines act fast, and a person can get multiple offers with training schedules and a pre-employment drug test scheduled as much as three or four weeks after the initial call. So it is not uncommon for a person to wait for a better offer. The catch is that typically job seekers do not contact an employer to say they have accepted another position. When a person does not show up for the training and drug test, the airline knows that the person accepted another job. (But that does not mean that the airline has necessarily canceled the drug test.)
This type of requirement would create huge problems for employees and employers in a hot airline job market, where flight attendants are moving in droves from regional airlines to legacy carriers like American, Delta, and United for better pay, hours, and the opportunity to work on European and other transcontinental routes. Employees get ensnared in an Orwellian nightmare. Employers pay for drug tests that people do not take, and given the subsequent disqualifications for missing tests, the pool of applicants gets whittled down that much more.
Modernizing federal drug testing practices may be one of the possible factors behind the current drug testing rules reform push at HHS.
The HHS proposal is a recipe for chaos, says Healy. “There’s going to be a whole bunch of these scheduled drug tests for people who are never going to show up, and where people that don’t show up, they will be classified as positive. The person who goes over to Delta but didn’t show up to the United training, they’re going to find out that they’re positive and they cannot be a flight attendant for that airline.”
Once an applicant registers as having had a positive test, that individual cannot return to a safety-sensitive position until they have been evaluated by a substance abuse professional and have completed additional pre-employment and follow-up testing. Nor can the person go back to their old job with the regional carrier, since they are in violation of federal regulations.
Merchant marines could face an even more dire set of consequences. The Coast Guard is the legal arbiter of tests for merchant marine fleets. If a merchant marine registers a positive test, that person must surrender their merchant marine credential—and many people find it almost impossible to get their credential restored, unlike land-based employees who have different ways of returning to good standing.
The proposed changes also include the introduction of oral fluid (i.e., saliva) drug testing to the federal regime. (Currently, the federal government relies on urinalysis for drug tests.) Employers will have to decide whether to use oral or urine testing in their own testing regimes or create a hybrid framework. Some sectors like trucking want to standardize hair testing: Some large companies are already using hair testing, a practice that remains controversial due to concerns about racial bias and other matters. (HHS is currently working on a hair testing study.) Another proposed rule would reduce the threshold for false positives that certain foods like poppy seeds or oils can produce.
Modernizing federal drug testing practices to catch up with the science and private companies’ practices may be one of the possible factors behind the current drug testing rules reform push at HHS. Healy surmises that they may want to expedite their workflows and jettison “those pieces that cause them to have to do more work and involve more players.”
Ironically, HHS has also proposed eliminating the public-comment period on new rules—which would prevent medical and union representatives from weighing in on issues like pre-employment drug screening and specific drug testing regimes. “You need public comment,” says Healy.
An HHS spokesman said that the department’s Substance Abuse and Mental Health Services Administration was unable to comment on the proposed rules since the mandatory guidelines for oral fluids and urine are currently under review.
