On Dec. 5, 2016, the Federal Motor Carrier Safety Administration (FMCSA), part of the U.S. Department of Transportation (DOT) published a final rule that creates a national drug and alcohol testing clearinghouse for commercial driver license holders who operate commercial motor vehicles (CMVs).
The final rule was adopted as required by the Moving Ahead for Progress in the 21st Century Act (MAP-21). The final rule is expected to improve roadway safety by identifying drivers who are ineligible to operate a CMV because they have violated FMCSA drug and alcohol regulations.
The final rule becomes effective on Jan. 4, 2017, though compliance with it will not be required until Jan. 6, 2020.
The final rule creates a national clearinghouse for drug and alcohol testing. Under the rule, employers will be required to use the national database to check whether their current and prospective employees have unresolved violations under the FMCSA’s drug and alcohol testing program.
Under the final rule, motor carriers will need to use the national clearinghouse database to check on a current employee’s status at least once per year. Verification for prospective employees must be part of the employer’s hiring process. Motor carriers are prohibited from allowing employees to perform safety-sensitive functions—including operating a CMV—if they violate the DOT’s drug and alcohol testing regulations.
Finally, the final rule requires CDL holders to notify their employers whenever they violate a drug or alcohol testing regulation while working for a different employer. The FMCSA has explicitly stated that drivers are not required to notify the employer who administered the test. Drivers who fail to notify their employers as required may be subject to civil and criminal penalties.
The final rule applies to individuals who operate CMVs in commerce in the United States and who are subject to the CDL requirements or the equivalent CDL requirements for Canadian and Mexican drivers. Specifically, the final rule affects motor carriers and organizations that employ individuals who hold a valid CDL and are subject to drug and alcohol testing under FMCSA regulations.
Drug and Alcohol Testing Requirements
The FMCSA requires CDL holders to participate in the federal drug and alcohol testing program if they operate CMVs that:
Have a gross vehicle weight rating (GVWR) of 26,001 pounds or more;
Are designed to transport 16 or more passengers (including the driver); or
Are used in the transport of hazardous materials.
In addition, under the drug and alcohol testing program, employers cannot allow a CDL holder to perform safety-sensitive functions when the employer has actual knowledge that the CLD holder has engaged in on-duty or pre-duty alcohol use, used alcohol prior to post-accident testing or used a controlled substance. “Actual knowledge” may be established through direct observation of drug or alcohol use, an employee admission of drug or alcohol use, information provided by a previous employer, or a traffic citation for driving a CMV while under the influence of drugs or alcohol.
Employers that have actual knowledge of CDL alcohol or drug use may allow CDL holders to drive only after CLD holders complete the DOT’s return-to-duty process prescribed in 49 CFR part 40, subpart O. In addition, the FMCSA has stated that “although not required to do so, [an] employer may, at its discretion, fire the employee without giving the opportunity to complete the return-to-duty process.”
Canadian and Mexican Drivers
The final rule applies to all Canadian and Mexican employees, employers or service agents that are currently required to comply with DOT and FMCSA drug and alcohol testing requirements. Canadian and Mexican motor carriers will have to use and report to the national clearinghouse if they plan to engage in cross-border trucking. Canadian and Mexican trucks are also subject to FMCSA enforcement mechanisms, including investigations and roadside inspections.
Currently, the FMCSA is able to access information about Canadian CDL holders through the CDLIS pointer system. As a result, the FMCSA does not anticipate having trouble accessing or accommodating Canadian information as a part of the clearinghouse design. The FMCSA will work with Canadian authorities if any issues arise that may affect the ability of Canadian carriers to comply with the requirements of the final rule.
Finally, the FMCSA intends to provide access to the clearinghouse only in English, although parties will be able to enter French or Spanish words and names in the various data entry fields. Users with limited English proficiency may seek assistance with the clearinghouse by contacting the FMCSA’s Office of Civil Rights at 202-366-8810 to request a language accommodation.
The final rule creates a national clearinghouse as a central repository for CDL holder compliance with the FMCSA’s drug and alcohol testing program.
Congress directed the FMCSA to establish a national drug and alcohol clearinghouse when the MAP-21 was enacted in 2012. The FMCSA stated that the creation of this national clearinghouse is “a major safety win for the general public and the entire commercial motor vehicle industry” because it will allow carriers across the country to:
Identify current and prospective drivers who have tested positive for drugs or alcohol; and
Employ CDL holders who drive drug- and alcohol-free.
The national clearinghouse will also prevent drivers who test positive for drugs or alcohol from concealing those test results from employers simply by moving to a different jurisdiction.
The successful implementation of the final rule depends on keeping the national clearinghouse up to date. For this reason, the final rule also includes a reporting requirement that applies to:
Medical review officers (MROs);
Substance abuse professionals (SAPs);
Consortia/third-party administrators (C/TPAs); and
Other service agents.
These individuals and entitles will be required to report the following information:
Positive drug test results;
Alcohol test results greater than 0.04 blood alcohol content;
Refusals to test; and
Other non-test violations of the FMCSA’s drug and alcohol regulations.
In addition, substance abuse professionals (SAPs) are required to report information about drivers undergoing the return-to-duty drug and alcohol rehabilitation process.
Employers retain the discretion to conduct testing beyond what is required by the DOT; however, the final rule does not grant the FMCSA the authority to require employers to report the results of non-DOT tests to the clearinghouse. Positive results from non-DOT tests must be kept separate from DOT test results and may not constitute violations of DOT or FMCSA regulations.
The clearinghouse will retain drug and alcohol program records for five years or until drivers complete the return-to-duty process, whichever is later.
The final rule requires employers to query the clearinghouse to determine whether current and prospective CDL holders have any unresolved drug and alcohol testing violations. For current employees, verification must take place once per year. For prospective employees, querying the clearinghouse must take place during the pre-employment process.
In addition, clearinghouse queries must take place whenever a CDL is issued, renewed, transferred or upgraded.
CDL Holder Consent
Under the final rule, and in accordance with the Privacy Act of 1974, employers must obtain a driver’s consent before accessing that driver’s clearinghouse record. The FMCSA will also require driver consent before releasing the driver’s clearinghouse record to any employer.
The FMCSA will allow drivers to access their own information, free of charge.
Please visit the FMCSA website or contact Conservation United for more information regarding the national drug and alcohol testing clearinghouse or other FMCSA compliance issues.