Through June 30, 2021, 85,745 drug and alcohol violations had been reported to the Federal Motor Carrier Safety Administration’s Drug & Alcohol Clearinghouse since its launch on Jan. 6, 2020. Of those, 2,183 have been a result of a fleet reporting “actual knowledge” of a violation, and 12,448 have been for a test refusal.
Combined, that means 17.1% of all violations in the clearinghouse are a result of a fleet reporting the violation. But, according to J. J. Keller & Associates, in at least some of those cases, the drivers may be assessed a violation due to a reporting system that confuses carriers and results in violations being entered into the clearinghouse database when, in fact, they should not be.
The purpose of the Drug & Alcohol Clearinghouse is to create an online database so FMCSA, employers, state driver licensing agencies and law enforcement officials can identify in real time CDL holders who have violated federal drug and alcohol testing program requirements.
Unfortunately, a percentage of these drivers are being unfairly penalized and sidelined because of what amounts to clerical errors. It’s unknown exactly how many drivers are impacted but reporting mistakes by fleets do occur, and drivers pay the price.
Common reporting errors
Reporting errors can occur for any number of reasons. According to J. J. Keller, some common reporting errors include placement of a non-CDL driver into the wrong classification (failed drug test violations are based on the vehicle operated, not whether the driver holds a CDL), or when a reasonable-suspicion test is ordered by someone who is not one of the fleet’s trained supervisors and did not directly observe the driver.
Post-accident tests also trip up some fleets, as reporting is not necessary if the testing does not meet the criteria set out in Part §382.303. Employers are also responsible for collection site errors, including use of non-DOT forms when a federal custody and control (COC) form is required (and vice versa), failure to include the driver’s CDL number as the employee identifier in the clearinghouse, or performing and reporting a drug test automatically with a driver physical when it is not required.
Also, carriers sometimes neglect to enter the required data to the clearinghouse within the three-day deadline of learning of a qualifying event such as a violation or a return-to-duty or completion of follow-up testing result.
What should employers report?
Employers are responsible for reporting failed alcohol tests with a blood alcohol level of 0.04% or greater and certain refusal-to-test scenarios that do not involve a medial review officer (MRO). A failure to show for a preemployment test is not a refusal to test, according to Part §382.107, J. J. Keller noted.
Carriers must also report when they have actual knowledge (more on this below) of a violation, including DUI while operating a CDL-required commercial motor vehicle. Negative return-to-duty tests and completion of the follow-up testing program should also be reported.
What should not be reported?
Due to the confusing nature of regulations, carriers sometimes report violations when they shouldn’t. If a driver has a blood alcohol content level greater than 0.02% but less than 0.04%, that should not be reported, J. J. Keller said. Also, any DUI or DWI citation involving a personal vehicle or a commercial vehicle that does not require a CDL is not considered actual knowledge, and reporting is not required.
Even possession of drugs or alcohol does not need to be reported as it is not considered actual knowledge even though it violates 49 CFR 392.4 and 49 CFR 392.5. The results of any non-FMCSA- or non-DOT-required test do not need to be reported, nor do any test results performed prior to the launch of the clearinghouse on Jan. 6, 2020. Any return-to-duty or follow-up testing that is based on a violation that occurred prior to Jan. 6, 2020, also should not be entered.
Finally, carriers that have a voluntary self-admission policy that complies with §382.121 should not enter any information in the clearinghouse based on a driver’s self-admission under the program. There are instances, according to FMCSA, in which if the driver’s self admission does not fall under §382.121, the violation must be reported.
What is actual knowledge?
FMCSA rules reference “actual knowledge” repeatedly, but what does that mean? According to the agency, actual knowledge, as defined in §382.107, means “that an employer has knowledge that a driver has used alcohol or controlled substances based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee’s admission of alcohol or controlled substance use, except as provided in §382.121.” Direct observation as used in this definition means “observation of alcohol or controlled substances use” while a driver is subject to performing a safety-sensitive function, “and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under §382.307.”
Managing compliance with the Drug & Alcohol Clearinghouse is complicated and often requires personnel or outside services dedicated to ensuring a program is operating efficiently and properly. J. J. Keller & Associates offers compliance for fleets and makes subject matter experts available to assist.
The compliance specialists also note that not all consortium/third-party administrators (C/TPA) offer clearinghouse services, so carriers should ask if that is available. If not, then hiring an outside firm to do so and assigning someone at the carrier level to serve as the lead in managing clearinghouse reporting obligations is important.
When errors occur, carriers must address these immediately as drivers could be out of service until they are corrected. Regular self-audits of drug and alcohol records can help mitigate issues, as can conducting regular refresher training on policies and procedures, reassigning roles as necessary and/or outsourcing some or all of these tasks.
Compliance with Drug & Alcohol Clearinghouse regulations includes maintaining proper records and reporting requirements. Failing to do so leads to drivers facing undue burdens and time spent off the road — or even the end of their driving career.