The Federal Motor Carrier Safety Administration (FMCSA) has required truck drivers to submit to drug and alcohol testing for almost two decades now. Drug and alcohol testing is required to be conducted by trucking companies in the following situations: pre-employment screens, random testing during employment, post-accident screens, when reasonable suspicion of use is suspected by the company or as part of return-to-duty testing. The current legislation creates a loophole that the FMCSA is now attempting to close with this new proposed rule for a national drug and alcohol testing clearinghouse.
The Loophole
The FMCSA inadvertently created a loophole in previous regulations regarding the screening and reporting of positive drug and alcohol tests. The legislation currently in place requires trucking companies to screen, as part of their pre-employment protocols, any new truck drivers for drugs and alcohol. If the driver tests positive, the trucking company cannot hire the driver. The problem though lies in that there is no place for trucking companies to report these positive tests or for trucking companies to find out about positive tests by drivers at other companies. So, theoretically a driver can fail a drug or alcohol test with one company, cease use of drugs and/or alcohol for a period of time allowing them to pass a drug and alcohol test for the next company they apply to and then get hired, only to go back to using drugs and/or alcohol.
The Background
In May of 2004, the FMCSA submitted a report to Congress indicating that a centralized clearinghouse of positive drug and alcohol test results would be feasible, cost-effective and preferred to a system that relied on drivers to self-report their positive drug and alcohol tests.
Nothing was done by Congress regarding the report until 2010 when legislation was introduced mandating the creation of a national clearinghouse for drug and alcohol tests and screenings. The clearinghouse was to maintain positive drug and alcohol tests from any stage of employment. In addition, the legislation mandated that any company hiring a commercial truck driver, who was subject to the Federal Motor Carrier Safety Regulations, must check the database before hiring the driver. The legislation, though, did not pass.
In 2012, the legislation was re-introduced and was included by Congress in the transportation reauthorization bill – Moving Ahead for Progress in the 21st Century (MAP-21). MAP-21 was passed by Congress setting the table for the creation of the clearinghouse.
What the New Rule Proposes and How it Will Work
The provision for the clearinghouse as it was enacted through MAP-21 requires the FMCSA to establish the database by October 1, 2014 to store and catalog positive drug or alcohol tests as well as refusals by truck drivers to take a drug or alcohol test. The legislation also requires the FMCSA to establish protocols for managing and protecting the privacy of the information as well as setting up a secure process for accessing the data.
Once the database is established, companies will be required to report to the clearinghouse any positive drug or alcohol tests as well as any refusals to test by drivers. In addition, Medical Review Officers, Substance Abuse Professionals and private third-party US Department of Transportation (USDOT) drug and alcohol testing laboratories would be required to report failed drug and/or alcohol tests, refusals to submit to testing and when a driver has successfully completed a substance abuse program and is legally qualified to return to duty.
Private third party USDOT drug and alcohol testing centers would also be required to submit annual summaries of information which would help the FMCSA identify companies that do not have a testing program in place.
As part of the proposed rule, any company hiring a new driver will be required to search and review the database for positive tests or refusals to test. The drivers would need to provide consent to the company to search the database, but a refusal to provide consent would prevent the driver from being hired for a safety-sensitive position, such as driving a truck.
The trucking companies will also be required to complete annual checks of the database for each CDL driver that it employs.
US Transportation Secretary Anthony Foxx summed the new rule up by stating, “Safety is our highest priority, and we will continue to embrace new tools and opportunities that protect the travelers on our nation’s road. [This] proposal will help ensure dangerous drivers stay off the road, while encouraging the employment of the many safe drivers who follow our drug and alcohol requirements.”
Click here to see the announcement by the FMCSA of this proposed rule.
