National Database on Positive Drug & Alcohol Tests Closer to Reality

By Joe Rajkovacz, CCTA Director of Governmental Affairs

After years of prodding from employers and a Congressional mandate, the Federal Motor Carrier Administration (FMCSA) has issued a rulemaking to establish the Commercial Driver’s License Drug and Alcohol Clearinghouse. The clearinghouse, as proposed would collect verified positive, adulterated, and substituted drug test results as well as refusals and negative return-to-duty test results.

FMCSA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on February 20, 2014 beginning a 60 day public comment period. After the comment period closes, FMCSA will review all comments submitted and if they believe any are substantive to the rulemaking, the agency could modify the proposal. A final rule could be expected before October 1, 2014 since Congress mandated the creation of the Clearinghouse by that date.

The rulemaking contains many new requirements on “regulated entities” such as motor carriers, Medical Review Officers (MRO), Substance Abuse Professionals, and consortium/third party administrators (C/TPA’s). The CCTA subsidiary, American Alliance Drug Testing (AADT), would be a regulated entity under this rulemaking.

State driver’s license agencies would also be allowed to access the new clearinghouse to determine whether an individual should not be issued a CDL because of failure to comply with the drug and alcohol regulations.

Why the Clearinghouse is Being Created

For many years, establishing a clearinghouse has been one of the top ten safety recommendations of the National Transportation Safety Board (NTSB), which emerged after the NTSB conducted an investigation in 1999 of a bus crash that ran off the road, killing 22 passengers. The investigation found the driver tested positive for marijuana in a post-accident test. Their investigation further revealed the driver had failed previous pre-employment test and the current employer had no knowledge because the driver did not disclose that information or the fact another employer fired him for failing a random drug test.
The Government Accountability Office (GAO) also issued two reports on investigations it conducted that uncovered numerous instances of drivers “job hopping” after failing drug tests and not disclosing those facts to prospective employers.

The clearinghouse, as proposed, is intended to end close the loophole in drug and alcohol testing regulations that relies exclusively the truthfulness of job applicants.

Key Proposed New Requirements

Under the proposed rule employers will be required to query the clearinghouse on every new hire prior to putting them to work (similar to the requirement that all new hires take a drug test prior to beginning a safety sensitive function). FMCSA is proposing an initial fee of $5 for each query. Employers will also be required to check each employed driver annually to be certain they did not fail a drug or alcohol test while possibly working for another motor carrier for a fee of $2.50 for each of these queries. Additionally, the proposed rule would require employers with “actual knowledge” of an employee being cited for driving a commercial motor vehicle while under the influence of alcohol or drugs to report into the clearinghouse that information.

For owner-operators, their C/TPA would be required to report any alcohol tests with a concentration of 0.04 or greater; negative return-to-duty tests, drug and alcohol test refusals and reports of the driver completing all follow-up tests. As with employers, the responsibility for reporting positive drug test results will be on the MRO and they have just one business day to accomplish this requirement.

FMCSA is also proposing to change how both motor carriers and drivers are identified on the Alcohol Testing Form (ATF) and the Federal Drug Testing Custody and Control Form (CCF). In both instances motor carriers must use either their U.S. DOT number or IRS Employer Identification Number (EIN). Drivers will no longer be allowed to use a Social Security number (SSN) and must instead provide their CDL number and state of issuance. For owner-operators with their own authority, FMCSA is highly “recommending” they get an EIN if they don’t already have one. They could still use a SSN if they choose to do so.

Driver Due Process Considerations

Under the proposal, in order to query the clearinghouse for information on any driver, the employer must get the consent of the driver and will be prohibited from having a driver sign a “blanket” consent form. Each type of query (pre-employment or annual) will require its own specific consent from the driver, which employers must retain for three years.

Organized labor and driver oriented associations have been vocal critics of establishing a clearinghouse, fearful that many of their members will be inadvertently reported into the database through “false positive” tests and a phenomenon known as “shy bladder.”

The proposed rule attempts to placate those concerns by mandating drivers are notified every time an inquiry is made into the database and establishes procedures for correcting/appealing negative information entered in the database. Thus far the rule does not contain any “good faith” provisions to protect employers or C/TPA’s who reported as required and later it was discovered an error was made on the part of the collector, laboratory or MRO.