The US Department of Health and Human Services (HHS) is proposing amending workplace drug testing guidelines to permit federal employers to analyze employees’ hair for the presence of illicit drug use.

The proposed rule change, posted in the Federal Register on September 10, seeks to allow federal agencies to collect and test hair specimens as part of pre-employment and/or random drug screenings.

NORML’s Deputy Director Paul Armentano strongly criticized the proposal, acknowledging that hair testing technology may yield disparate results from person to person based on hair color, skin color, and several other variables – such as exposure to high humidity or second-hand environmental exposure.

He said: “It is mind-boggling that the federal government is revisiting this half-baked proposal now. 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 possesses 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. 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 plan is adopted, HHS estimates that hair follicle testing will be some eight-times more expensive than traditional urinalysis, and that it will likely only be utilized in “approximately one percent of the 275,000 specimens tested per year.”

The federal Register is accepting public comments on the proposed plan until November 9, 2020. Written comments may be submitted here.