Quickly approaching its 60-day milestone, the Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse has already made an impact on the driver hiring and recruiting process. With that said, it has led to plenty of confusion and the reporting of failed tests.
According to the FMCSA, more than 8,000 positive substance abuse tests have been recorded, as of February 21. Over 650,000 of the nation’s truck drivers have registered for the clearinghouse.
“We’ve seen encouraging results from the Drug and Alcohol Clearinghouse, but there’s still work to do to ensure we identify more drivers who should not be behind the wheel. The clearinghouse is a positive step, and the agency continues to work closely with industry, law enforcement and our state partners to ensure its implementation is effective,” FMCSA Acting Administrator Jim Mullen said.
The rate of positive tests will continue to increase this year, in part due to the 50% random drug testing rate in effect. That rate was increased from 25% in 2019 because the number of positive tests exceeded the statutory threshold. At the higher rate, it’s logical to assume there will be a higher number of failed tests.
As more drivers take drug tests, and more carriers interact with the clearinghouse, it has led to some misunderstanding on the rule and how to implement it. Dual-mode drivers are just one area of confusion.
“I have received questions from clients with dual-mode CDL drivers and they are confused on clearinghouse applicability when the driver is working over half the time under other modal rules, such as the Pipeline and Hazardous Materials Safety Administration or the Federal Transit Administration for purposes of random testing, but the driver is subject to Part 382 for other testing situations,” said Kathy Close, editor of Transport Safety for compliance specialists J. J. Keller & Associates, Inc. “They are surprised to learn that these drivers are still subject to pre-employment and annual queries.”
“Any testing violations under FMCSA tests are reported, but violations under the other modes are not,” Close added. “That’s why it’s important to make sure the appropriate agency under which the test was performed is marked on the chain of custody for dual-mode employees.”
According to J. J. Keller, there are three common misunderstandings that are occurring more than others. They are: understanding what a query is and when it must be done, what information needs to be reported, and what needs to be documented.
Understanding queries
1. What are queries?
There are two types of queries – limited and full. A carrier or consortia/third-party administrator (C/TPA) must conduct a limited query on all of a carrier’s existing drivers annually. All drivers must have been queried by January 5, 2021, and then each year thereafter based on a 365-day calendar. A limited query is used to check for the presence of information in the driver’s clearinghouse record. If that query returns a record, the carrier must conduct a full query to learn details of that record. The carrier has 24 hours to conduct the full query, which will provide details on any failed tests and also information on the return-to-duty process drivers must undergo following a failed test.
2. What steps must be taken to conduct a query?
To conduct a limited query, a carrier needs a consent form from the driver authorizing such a query. The signature can be either electronic or wet, and the timeframe allowed for the query can vary, but is limited in length. But the employer may have the consent worded in such a way that it is valid for more than one annual query. For instance, it may have a specific date range or it may state it is valid during the course of employment. Without consent, a limited query can’t be performed and the driver must be removed from safety-sensitive functions.
Full queries are required as part of the pre-employment process, or any time a limited query returns a record. A driver must be registered in the clearinghouse and provide electronic consent before a full query can be conducted. Without that consent and a completed full query, a driver can’t be hired. Full query is required each time the employer requests the report.
3. Who is subject to a query?
According to FMCSA Part 382 (drug and alcohol regulations), those operating a CDL-required commercial motor vehicle (CMV) are subject to a query. That includes any full-time, part-time and leased drivers, as well as those with other job titles that may operate a CMV. Dual-mode drivers – those that operate in a FMCSA safety-sensitive function for less than half their work time – are also subject. Those operating a CMV that does not require a CDL, even if they have one, are not subject to a query.
4. Why do a query?
Queries play an important role in keeping the roads safe. This begins in the pre-employment process, which requires a full query on any applicant to ensure drivers are legal and abiding by drug and alcohol laws. J. J. Keller pointed out that queries serve the same purpose as §391.23/§40.25 (investigations), but you need the results in hand, unlike those sent to former employers. Also, the Safety Performance History Record Request (SPHRR) check is still required for prior employees. The requirement to investigate the drug and alcohol testing information via the SPHRR remains on the books until January 2023.
Reporting requirements
1. Who must report information?
According to FMCSA, “employers and medical review officers (MROs), or their designated representatives, are 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. In addition, Substance Abuse Professionals (SAPs) are required to report information about drivers undergoing the return-to-duty drug and alcohol rehabilitation process.”
2. What should be reported?
Employers or their designated C/TPA are required to report positive test results of, or refusals by, any current CDL driver or commercial learner’s permit (CLP) driver applicant. This also includes adulterated or substituted drug test results and situations of “shy bladder” without a valid medical explanation. Drivers who admit to MROs adulterated or substituted specimens must also be reported. Only positive test results conducted when FMCSA is the agency designated on the Drug Testing Custody and Control Form are to be reported.
3. When do the results need to be reported?
Any driver that has violated DOT testing rules, according to Part 382, must be reported within two business days. In addition, employers who learn of specific information must report it to the clearinghouse by the end of the third business day. Information that the MRO is not privy to must be reported by the employer, such as alcohol test results with a confirmed alcohol concentration of 0.04 or greater, certain refusal-to-test scenarios for drug or alcohol tests, and actual knowledge.
4. What role does an SAP play?
SAPs must notify the clearinghouse within one business day of completing an initial assessment following a drug and/or alcohol violation. The SAP must also report within one business day determination that a driver has completed the return-to-duty process. Unlike other reporting requirements, the driver must designate the SAP before the information can be entered.
5. Who enters the information?
Carriers or their designated C/TPA’s may enter information, although the employer is still held responsible for compliance in all cases. In fact, to ensure this is followed, J. J. Keller advises employers to enter into a contract that specifically spells out who will perform which function under the Drug and Alcohol Clearinghouse rules.
6. Are owner-operators exempt?
An owner-operator who is not leased by a motor carrier is still subject to the rules and must designate a C/TPA to conduct the annual limited query on his/her behalf.
Documentation requirements
1. What records must carriers keep?
Records will be maintained in the clearinghouse for five years or until the return-to-duty status is completed, whichever is later. Carriers or their representatives that conduct queries must maintain records related to each query for three years. This includes all consent records. The clearinghouse will maintain these query records as well as a driver’s response.
According to the agency, “employers are required to conduct both electronic queries in the clearinghouse and traditional manual inquiries with previous employers to meet the three-year timeframe required by §391.23.” This requirement goes away as of January 6, 2023.
2. Do carriers need to update documentation?
The answer is yes. While the underlying requirements of Part 382 do not change, policy and educational documents must now include what information is being shared by the carrier or its C/TPA to the clearinghouse.
3. How can carriers streamline this process?
Complying with the Drug and Alcohol Clearinghouse regulation is a multi-step process, and as with many regulations, a misstep can result in fines or undue scrutiny on the carrier. Carriers should seek consent from drivers as early in the process as possible. Since a driver can’t be hired without consenting to a full query, and that can’t be done until a driver registers in the clearinghouse, the hiring process can be streamlined if that consent is requested early in the process. Carriers can help drivers with this process by providing registration links and information on the clearinghouse. Compliance specialists can also assist in this process, helping manage the registration and reporting steps involved.
