By Matthew Wrobel, Foley Services
The Federal Motor Carrier Safety Administration has released the long awaited Notice of Proposed Rulemaking for the Department of Transportation Drug and Alcohol Testing Clearinghouse. Required by Congress and requested by industry figures, this regimen would cause a substantial shakeup of both testing and hiring if implemented as described in the NPRM.
The Clearinghouse will contain the following information:
- Verified Positive Drug Tests
- Adulterated/Substituted Drug Tests
- Positive Alcohol Tests
- Alcohol & Drug Refusal to Tests
- Negative Return-to-Duty Tests
- Information on Follow-Up Testing
- “Actual Knowledge” Incidents involving a citation, but not directly observed incidents or employee admissions. (If your driver fails a non-DOT test, you will need to report them, but if you catch them using drugs you will not.)
The rules would require employers to perform a check of the Clearinghouse every time they hire a driver. This would be in addition to the current check of previous employers but, because it would remove the self-reporting aspect, it would be more secure. Prospective employees would no longer be able to hide testing violations by omitting previous jobs. This move has been welcomed by a number of carrier associations, because carriers are essentially stuck taking hiring risks.
Another major change proposed in the rules is that FMCSA will start a major trawl of data to catch non-compliant carriers. Laboratories will be required to report all the companies who are taking tests. FMCSA will compare that information to the list of carriers and would target carriers for enforcement.
This would be a major change to compliance. It would be, by far, the biggest data haul since CSA was enacted in 2010 and would have far-reaching effects for enforcement activity and the carriers FMCSA chooses to target for investigation and auditing.
Owner Operators: Owner-Operators will be required to use a Consortium or Third-Party Administrator (C/TPA) to submit information. Other carriers will also be able to delegate a C/TPA to perform these tasks for them. Carriers or their C/TPAs will be responsible for submitting positive alcohol tests as well as drug and alcohol refusal-to-tests. They will also be required to submit negative return-to-duty results.
Return-to-Duty: The Clearinghouse will track the entire return-to-duty process. Drivers will be reported when they enter a program and when they complete educational requirements, return-to-duty tests, and every follow-up test. Finally, the Clearinghouse will record when the return-to-duty process is completed.
There will be a 60-day commenting period along with time to respond to those comments and an implementation time period.