The FMCSA has forwarded its final rule establishing a national database (hereinafter referred to as “Clearinghouse”) of truck drivers who have failed or refused to take drug and alcohol testing to the White House Office of Management and Budget. This is the final hurdle in the rule approval process, which began in 2014 when the proposed rule was first announced as mandated by the Moving Ahead for Progress in the 21st Century Act (“MAP-21”). Although not mandated until the passage of MAP-21, calls for such a database were made as early as 2001 when a bus crash in New Orleans that claimed the lives of 22 people was attributed to an impaired driver, who managed to drive a CMV despite previous failed drug tests with a former employer.
The rule would revise 49 C.F.R. § 382 to establish the Clearinghouse. It will require employers and medical personnel to report information about current and prospective employees’ positive drug and alcohol tests, as well as any refusals to submit to the testing Clearinghouse. These rules will apply to those who operate CMVs under 49 C.F.R. § 383, as well as their Mexican and Canadian counterparts. The rule will require employers to search the Clearinghouse for positive drug and alcohol test results or refusals to submit to testing both for current employees on an annual basis, and as part of the pre-employment process for prospective employees. Employers cannot, though, run these checks without first obtaining the consent of the driver on whom the employer searches the Clearinghouse. Drivers should be aware any driver who refuses this consent cannot work in any “safety sensitive function.” Employers should also be aware all laboratories who perform DOT drug testing must file an annual summary report identifying the motor carrier employers for whom they have performed testing services to ensure employer compliance.
These requirements will also significantly affect owner-operators and the motor carriers who employ them. The rule imposes the same requirements on the employer of an owner-operator as if the owner-operator was a direct employee of the motor carrier. Independent owner-operators, though, must participate in random drug testing via a consortium or third-party drug test administrator and authorize it to submit information on any of its drivers, including the independent owner-operator themselves, to the Clearinghouse.
Under the proposed rule a driver will receive notification of when information has been entered into the Clearinghouse about them. The driver has the right to review this information and the driver may petition the FMCSA to correct inaccurate information in the Clearinghouse. Drivers will need to submit a petition within 18 months of the alleged error. However, drivers will not be able to challenge the accuracy or validity of any alcohol or controlled substance test. These procedures will only be available for clerical errors, such as attributing a positive test to the wrong driver, incorrect name or CDL number, mis-identification of the type of test performed (i.e., pre-employment screening versus random testing), and other similar inaccuracies. The driver then has to opportunity to request FMCSA to conduct an administrative review if he or she believes any decision was made in error.
Changes may have been made between the proposed version and the final version of the rule. This will remain unclear until the final version is published in the Federal Register following OMB review. Therefore, we recommend staying up to date of any changes between the rules.
These reporting and verification procedures, according to the FMCSA, would place employers in better positions to determine whether current or prospective drivers have been prohibited from operating CMVs under the DOT drug and alcohol program or pose a significant safety risk to the employer and the motoring public. FMCSA estimates the rule will cost the industry approximately $186 million annually. Despite this significant burden, the Clearinghouse will be beneficial by making roads safer by empowering motor carriers with more information regarding prospective employees, giving the carrier the ability to hire the safest drivers and reducing its own risk.
This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com