Closing the Cracks with the FMCSA’s Drug and Alcohol Clearinghouse
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Slipping through the cracks has become much more difficult for drivers with the 2020 implementation of the Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse.
The following scenario paints a picture of how easy it once was for commercial driver’s license (CDL) holders who violated the FMCSA drug and alcohol testing regulations to move from job to job and continue to threaten public safety on U.S. roadways. Later in this article, we will explore requirements and responsibilities related to the clearinghouse.
In March 2019, John Doe, a CDL holder employed by ABC Transport, was selected for a random drug and alcohol test regulated by the U.S. Department of Transportation. After receiving notification of his selection, he was escorted to an area to provide a test sample. He soon became irritated and started vocalizing his frustration. After approximately five minutes, Mr. Doe informed his supervisor that he was not going to provide a sample and left. In turn, ABC Transport followed their company policy and ended Mr. Doe’s employment for refusing to provide the test sample.
A few weeks later, Mr. Doe applied for a position as a construction equipment transport driver with XYZ Construction Co. The company hired Mr. Doe based on his driving experience. He passed the pre-employment drug and alcohol screening and began work at once. Shortly after starting his new position, Mr. Doe caused a collision with another vehicle that resulted in serious injuries to both him and the occupants of the other vehicle. Through XYZ Construction’s post-accident drug and alcohol testing, the company discovered that Mr. Doe’s test sample was positive for amphetamines.
During the investigation, XYZ Construction was able to demonstrate they did their due diligence by sending a driver inquiry form to Mr. Doe’s former employer. However, Mr. Doe’s former employer did not respond to the information request. Therefore, XYZ Construction was not aware that Mr. Doe had refused to give a random drug and alcohol test sample, which, per 49 CFR 382.211, “Refusal to submit to a required alcohol or controlled substances test,” prohibited Mr. Doe from performing safety-sensitive functions – including driving commercial motor vehicles. Unfortunately, XYZ Construction may still be liable for all damages.
Prior to the implementation of the FMCSA’s Drug and Alcohol Clearinghouse, situations like this occurred often. This was due in part to employers’ inability to obtain real-time drug and alcohol violation history regarding potential drivers. This lack of knowledge resulted in employers hiring some drivers with substance abuse problems to operate 80,000-pound tractor-trailers. According to the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System, in 2019, 5,005 people were killed in crashes that involved large trucks. Imagine how many of those fatalities could have been prevented if there had been a tool employers could have used to discover which operators were prohibited from driving due to drug and/or alcohol policy violations.
To improve highway safety and combat the growing number of commercial motor vehicle incidents involving substance abuse violations among CDL and commercial learner’s permit (CLP) holders, the U.S. Congress tasked the U.S. Department of Transportation with developing a national database (i.e., clearinghouse). The clearinghouse is a centralized database that stores near real-time data about CDL/CLP holders’ drug and alcohol violations. Querying the database allows employers, law enforcement and state driver licensing agencies to obtain critical information about current and prospective CDL holders who are prohibited from operating a commercial motor vehicle. This information helps prevent prohibited drivers from being hired or allowed to perform safety-sensitive functions.
By design, the clearinghouse is a team effort among drivers, employers, medical review officers, substance abuse professionals, law enforcement and state driver licensing agencies. In addition, companies may choose to have a consortium/third-party administrator oversee their drug and alcohol program. All these players have key roles in improving highway safety. Before using the clearinghouse, all parties must register on the FMCSA Clearinghouse website (https://clearinghouse.fmcsa.dot.gov/register).
Who Does What?
Now that we know a little about why there is a need for the FMCSA’s clearinghouse, let’s discuss the different parties’ responsibilities, starting with the employer.
Per 49 CFR 382.701, “Drug and Alcohol Clearinghouse,” employers must conduct both pre-employment and annual queries for all CDL holders who they employ. Pre-employment requires a full query on CDL holders, and the annual query is a limited one. These queries are in addition to the requirements to investigate under 49 CFR 391.23(a), which states the following: “Except as provided in subpart G of this part, each motor carrier shall make the following investigations and inquiries with respect to each driver it employs, other than a person who has been a regularly employed driver of the motor carrier for a continuous period which began before January 1, 1971: (1) An inquiry, within 30 days of the date the driver‘s employment begins, to each driver‘s licensing authority where the driver held or holds a motor vehicle operator‘s license or permit during the preceding 3 years to obtain that driver‘s motor vehicle record. (2) An investigation of the driver‘s safety performance history with Department of Transportation regulated employers during the preceding three years.”
Note: The good news is that, as of January 2023, only the clearinghouse queries will be necessary. Inquiring with a driver’s prior employers will no longer be required by the standard.
Collecting data is a task that is shared by many clearinghouse roles. Employers must report violations of drug and alcohol regulations and update a return-to-duty completion status in the clearinghouse. The role of a medical review officer is to report all positive drug tests and testing refusals. The substance abuse professional’s role is to enter return-to-duty assessment information and report when drivers are eligible for return-to-duty testing. Consortium/third-party administrators enter information in the clearinghouse on behalf of employers under their administration. In addition, CDL holders use the clearinghouse to view their own records and give consent to full queries requested by prospective employers during the hiring process.
It is important to mention that employers must receive consent from current or prospective employees prior to running queries. Consent for a full query requires prospective employees to grant consent via the FMCSA clearinghouse. Consent for a limited query can be granted to employers on a signed consent form.
Nearly Three Years Since Implementation
In their March 2022 monthly summary report, the FMCSA reported that since the clearinghouse went live in January 2020, there have been nearly 12.5 million queries conducted. Employers, medical review officers and consortium/third-party administrators have reported 129,530 drug and alcohol violations. The violations include known use of alcohol or drugs, positive test results or failure to submit a sample. The report further stated that drugs represented 82% of all violations, with marijuana being the drug of choice and discovered in over 70,000 tests.
At the time the report was published, there were a total of 89,650 CDL/CLP holders listed as prohibited, meaning they were not legally allowed to drive a commercial motor vehicle, thereby helping to make our national highway system safer. The report also stated that of the 89,650 violators discovered, a total of 29,483 drivers had completed the return-to-duty process.
Another way the clearinghouse helps improve the safety of America’s roadways is that it gives law enforcement officers the ability to perform queries and obtain information on a CDL/CLP holder’s status. This can be done anywhere they have access to the internet, such as during traffic stops or roadside inspections.
Remember, the goal of the FMCSA’s clearinghouse is to make U.S. roadways safer. To accomplish this, all stakeholders must do their part to ensure accurate and timely reporting to the clearinghouse. The potential risk to public safety and company liability is too great to do nothing.
About the Author: Joshua Reilly, SMS, CIT, CUSP, is a safety specialist at Electrical District No. 3 of Pinal County in Arizona. He earned his bachelor’s degree in occupational safety and health from Columbia Southern University. In 2015, after 26 years of service, Reilly retired from the U.S. Army as a Chief Warrant Officer 3, with specialties in maintenance management and safety.