by John Gallagher, FreightWaves Washington Correspondent
A loophole that allows truck drivers who fail a drug or alcohol test to get hired shortly after by another carrier starts to close on Jan. 6, 2020.
That’s when the Federal Motor Carrier Safety Administration (FMCSA) begins to employ the Commercial Driver’s License Drug and Alcohol Clearinghouse, a final rule for which was issued in December 2016.
The purpose of the congressionally mandated clearinghouse, according to FMCSA, is to create an online database “that will allow FMCSA, [commercial motor vehicle] employers, State Driver Licensing Agencies, and law enforcement officials to identify — in real-time — CDL drivers who have violated federal drug and alcohol testing program requirements, and thereby improve safety on our nation’s roads.”
The impetus for a drug and alcohol clearinghouse can be traced back at least 20 years to a bus crash in New Orleans in May 1999 in which 22 passengers were killed. Federal investigators found that the probable cause of the accident was the failure of the medical certification process to detect and remove the driver from service due to his severe medical conditions, as well as a lack of a way to identify drivers who have tested positive for drugs.
As a result, the National Transportation Safety Board recommended that FMCSA develop a system that records all positive drug and alcohol test results and require prospective employers and certifying agencies to query the system before making hiring and certification decisions.
The final clearinghouse rule also incorporates recommendations by the FMCSA itself to Congress in 2004 and responds to concerns from a 2008 U.S. Government Accountability Office report on the problem of job-hopping by commercial drivers after they fail drug tests.
How it works
The clearinghouse is designed to be a central location for test results, which should streamline the process for carriers to ensure compliance with federal regulations. It will include positive drug and alcohol test results and test refusals, which are a violation under current regulations. It will identify drivers who move frequently and obtain a commercial driver’s license (CDL) in different states, and link those CDLs to maintain complete and accurate information on such drivers.
In addition to reporting drug and alcohol program violations, employers will use the clearinghouse to check that current or prospective employees are not prohibited from driving a truck due to an unresolved drug and alcohol program violation. This query must be conducted as part of a pre-employment driver investigation, and at least annually for current employees.
Drivers who test positive can follow a “return-to-duty” (RTD) process. RTD status is included in the clearinghouse database, and when the RTD process is completed, the clearinghouse will reflect that accomplishment so that fleets will know that a driver has taken the steps necessary to return to good standing.
All violation records are maintained in the clearinghouse for five years or until the RTD process is completed, whichever is later.
State motor vehicle agencies, which had concerns about their role in the clearinghouse and the privacy controls used in transmitting data, received from the FMCSA an extension until Jan. 6, 2023, to comply with the regulation.
Who must register
Employee drivers are not required to register in the clearinghouse unless they are applying for a position with another company or if they have had previous violations.
Employers are required to register so that they can perform a required full query (see below under “User costs”) of the site for each driver each year, which requires driver consent through the driver portal account. Employers may designate a consortium/third-party administrator (C/TPA) who can report violations and/or conduct queries on their behalf.
Owner-operators who employ themselves as CDL drivers — typically a single-driver operation — also must register because they are subject to the requirements pertaining to employers as well as to drivers. Owner-operators also must designate a C/TPA to comply with employer clearinghouse reporting requirements.
Employers will be required to conduct both electronic queries in the clearinghouse and traditional manual inquiries with previous employers to meet a federal three-year time frame requirement. Manual inquiries will be required only until Jan. 6, 2023, at which point only queries into the clearinghouse will be needed.
All drivers who register for the clearinghouse will be able to electronically access their records at no cost. For fleets and owner-operators, there is a charge for conducting queries.
There are two types of queries: limited queries, which are used to check if a driver has a clearinghouse record (with driver consent obtained outside the clearinghouse), and full queries, which provide employers access to detailed information about any resolved or unresolved violations in a driver’s record.
FMCSA has provided an initial cost breakdown by type of query and number of drivers. The cost of a single basic query is $1.25.
Employers can pay either a flat per-query rate of $1.25 for both limited and full queries or one annual payment $24,500 for an unlimited number of queries, the agency announced on Aug. 20.
The $1.25 plan can be customized into 19 different bundles ranging from one to 7,500 queries, depending on the size of the company. The cost for a bundled plan ranges from $1.25 to $9,375. FMCSA recommends choosing a query bundle large enough to cover the number of drivers currently employed. Companies can purchase additional plans as needed.
Trucking industry consultants have advised carriers on ensuring their company complies with the regulation before and after it takes effect. J.J. Keller & Associates Inc. outlined four steps fleets should take, including making sure that those contracting with third parties update those contracts, particularly if they plan to designate an administrator to conduct queries on the carrier’s beh
alf. The consultancy also recommended training drivers on how to use the clearinghouse, whether they need to register or not, and determining whether to conduct limited or full database queries.
Transportation law firm Scopelitis urged carriers to:
Ensure that their federally mandated drug and alcohol testing policies contain all necessary details about the clearinghouse.
Develop procedures for running initial queries for prospective drivers and annual queries for existing drivers.
Communicate with drivers to ensure they will be properly registered through the clearinghouse if required.
It’s important to remember that being listed in the clearinghouse isn’t a death sentence for a driver’s career — but it could put a stop to it for a while until the driver can reclaim good standing. It also doesn’t preclude a carrier from hiring a driver with a past positive test result. In fact, according to FMCSA, the addition of the clearinghouse does not change in any way current U.S. Department of Transportation procedures for transportation workplace drug and alcohol testing.
But FMCSA also believes having a driver’s compliance history following him or her for a minimum of five years will become a significant deterrent to illegal drug and alcohol use, noting that, “As we continue to raise the severity of the consequences for unsafe conduct behind the wheel, drivers who wish to be productive participants in the industry should modify their behavior accordingly.”