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Proposed drug and alcohol clearinghouse

The feds are making a big move toward stepping up the pressure on individuals who drive commercial vehicles while under the influence of illegal drugs or alcohol.

The Federal Motor Carrier Safety Administration unveiled its proposed plan for a drug and alcohol clearinghouse that would store positive drug and alcohol test results; adulterated, substituted drug test results; test refusals; and successful completions of the return to duty process following a positive test result.

The reporting requirements fall on both prospective and current employers, medical review officers, consortiums, third-party administrators and substance abuse professionals. In the case of owner-operators, the agency is proposing the mandated use of a consortium or third-party administrator to complete the reporting requirements to the clearinghouse.

Positive test results may be kept only three or five years – a time frame the agency is seeking comment specifically on – for individuals who have successfully completed the return to duty process and had subsequent negative follow-up test results.

Conversely, the agency is essentially proposing to keep the positive test results in the database indefinitely on individuals who do not complete a return-to-duty process after the positive drug or alcohol test.

Not only will drivers have access to the clearinghouse to view their own profiles, but the agency is also proposing to notify drivers when changes are made to their profiles or when their records are accessed. The notification would be either by mail or by email, depending on the driver’s preference.

In the proposal, motor carriers would be required to check a driver’s records in the clearinghouse before hiring the driver. The driver would have to give written consent for this search.

Additionally, FMCSA is proposing to require motor carriers to check the database annually on existing employees. The agency is proposing that this be a “limited” search, which would only flag employee records that have been changed. That would also require written consent from the drivers, but the agency would allow a blanket consent to be signed at the time of employment.

The employer would then have to get written permission to do a full review of any employee records that were flagged as having been changed in the past year.

Drivers who do not provide consent to employers for searches of the clearinghouse will not be allowed to conduct safety-sensitive functions. Basically, they won’t be allowed to drive a truck.

The proposal also includes provisions for reporting citations for driving under the influence to the clearinghouse. However, if the citation does not result in a conviction, it would have to be removed from the records.

Mistakes do happen, and FMCSA acknowledges this with a proposed challenge process for erroneous data. This would be for clerical errors and inaccurate information. It’s not an additional step in the appeals process on positive results. Those would still remain with the MRO.

The agency is proposing that clerical errors would have to be addressed within 90 days from the date of the challenge petition, and “critical information” corrections would have to be addressed within 30 days.

The proposal is silent on the requirements of foreign-domiciled motor carriers that operate in the U.S. and does not address whether a third-party vendor would actually be responsible for operating the drug and alcohol clearinghouse.

The notice of proposed rulemaking will publish in the Federal Register in the near future. Once that happens, that will kick off a 60-day comment period for the public to comment on FMCSA’s full proposal.

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