FMCSA Announces Drug and Alcohol Clearinghouse Final Rule
Federal regulatory officials on Dec. 2 announced a final rule that will create a clearinghouse that would track when a commercial driver fails a drug or alcohol test and require carriers to check an applicant against the clearinghouse database.
The Federal Motor Carrier Safety Administration said the database will allow employers to “follow” drivers, regardless of how many times they change jobs, seek employment or apply for a commercial driver license in a different state.
The new regulation, mandated by the MAP-21 transportation law, will take effect on Jan. 6, 2020.
“FMCSA believes three years is necessary to provide the agency time to design and implement the information technology systems needed to facilitate the reporting of results and violations of the drug and alcohol testing rules and the responses to queries from employers and prospective employers,” the agency said. “Also, this period of time will ensure that stakeholders have sufficient time to prepare for this rule.”
Specifically the rule, first proposed in February 2014, will set up and maintain records of all drug and alcohol program violations in a central repository. It will require that employers query the system annually to determine whether current and prospective employees have incurred a drug or alcohol violation that would prohibit them from performing “safety-sensitive” functions.
“An overwhelming majority of the nation’s freight travels by truck, and millions of passengers reach their destinations by bus, so creating a central, comprehensive and searchable database of commercial motor vehicle drivers who violate federal drug and alcohol testing requirements has been a departmental priority,” Transportation Secretary Anthony Foxx said in a statement. “This system will be a new technological tool that will make our roads safer.”
The information in the clearinghouse will help an employer detect who commits a drug or alcohol violation while working for one employer but attempts to find work with another employer. It also will ensure that a driver who fails a test completes the return-to-duty process.
“This is a major safety win for the general public and the entire commercial motor vehicle industry,” FMCSA Administrator Scott Darling said. “Drivers who test positive for drugs or alcohol will no longer be able to conceal those test results from employers and continue to drive while posing a safety risk to the driving public.”
The rule also requires motor carriers, medical review officers, third-party administrators and substance abuse professionals to report information about drivers who test positive for drugs or alcohol, refuse drug and alcohol testing and undergo the return-to-duty drug and alcohol rehabilitation process.
FMCSA said the clearinghouse will be administered and maintained in strict compliance with applicable federal security standards. “The agency will comply with the consent requirement of the Privacy Act prior to releasing any driver’s clearinghouse record to an employer,” the rule said.
Employers and medical review officers, or their designated representatives, also will be required to report information about positive drug test results, alcohol test results greater than 0.04 blood alcohol content, refusals to test and other non-test violations of FMCSA’s drug and alcohol regulations.
Additionally, the rule requires that an employer may not allow a covered employee to perform safety-sensitive functions when the employer has actual knowledge that a driver has engaged in on-duty or pre-duty alcohol use, used alcohol prior to post-accident testing or used a controlled substance.”
“An employer may not use a driver under these circumstances until the driver has completed the return-to-duty process,” the rule said. “Although not required to do so, the employer may, at its discretion, fire the employee without giving the opportunity to complete the return-to-duty process.”
The agency said it does not regulate an employer’s decision to terminate or the conditions under which an employer chooses to keep a driver on after a drug or alcohol violation.
The announcement was welcomed by American Trucking Associations, which said it has long sought a national repository for drug and alcohol test results in order to close a loophole where a driver with a history of drug or alcohol abuse could be hired by a carrier without that carrier being informed of their history.
“Today’s announcement provides the trucking industry with a powerful tool to keep drivers who have tested positive for drugs or alcohol out from behind the wheel of our trucks,” said Bill Sullivan, ATA executive vice president of advocacy.
“Having information about a driver’s history is important to carriers when we make hiring decisions,” said ATA Chairman Kevin Burch, president of Jet Express Inc. of Dayton, Ohio. “This clearinghouse will give carriers like mine peace of mind to know we are putting safe – and sober – drivers behind the wheel and on the road.”
