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Transportation Webinar: The FMCSA

Transportation Webinar: The FMCSA's Latest: Drug and Alcohol Clearinghouse and Entry Level Driver Training


(January 18, 2017)

In our first webinar of 2017,  we discussed the new Drug and Alcohol Clearinghouse and how it will effect motor carriers. OSHA is also on the warpath for non-DOT drug testing, so we talked about non-DOT drug and alcohol testing relative to the reporting of workplace incidents. Also included was an overview of the FMCSA's new rule on entry-level driver training requirements.

Please click here view the PowerPoint presentation.

Authors
Robert T. Green
T (864) 751-7617
F (864) 751-7800
Shawn N. Kalfus
T (404) 962-1042
F (404) 962-1279
Alexander L. Maultsby
T (336) 378-5331
F (336) 378-5400
Robert D. Moseley
T (864) 751-7643
F (864) 751-7800
ASSOCIATED SERVICES
Associated Industries
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The FMCSA Commercial Driver's License Drug and Alcohol Clearinghouse and You

  • What it is
  • What it does
  • What you need to do
  • When you need to do it
  • And everything else you need to know NOW

The FMCSA Commercial Driver's License Drug and Alcohol Clearinghouse

What it is

–Central Database of CDL drivers’:

•Positive drug and alcohol test results

•Refusals to take drug and alcohol tests

•Other violations of the drug and alcohol testing regulations

FMCSA Commercial Driver's License Drug and Alcohol Clearinghouse

What it does

–Intended purposes:

•Reduce the number of drivers under the influence

•Reduce the number of motor vehicle accidents

•Reduce expenses and liability

•Simplify the hiring process

•Close hiring loopholes

•Reduce driver turnover

FMCSA Commercial Driver's License Drug and Alcohol Clearinghouse

What YOU need to do

–Depends on who YOU are:

•Motor Carriers

•Medical Review Officers

•Substance Abuse Officers

•State Licensing Agencies

MOTOR CARRIERS

REPORTS       

•Within 3 business days:

Positive drug tests

–Alcohol tests with a concentration of 0.04 or higher;

–Alcohol and drug test refusals;

–All instances of known drug or alcohol use (observations, admissions, DUI citations, etc.);

Negative return-to-duty drug test results; and

–Successful completion of follow-up tests

QUERIES

•Must check the Clearinghouse:

Before hiring any CDL Applicant

Once annually to verify all current drivers are compliant

•Must keep a record of each query for three years until January 2023

–Then, relieved if proper registration

Service Agents of Carrier or CDL Driver

MUST REPORT

Positive drug tests

–Alcohol tests with a concentration of 0.04 or higher;

–Alcohol and drug test refusals;

–All instances of known drug or alcohol use (observations, admissions, DUI citations, etc.);

Negative return-to-duty drug test results; and

–Successful completion of follow-up tests

MEDICAL REVIEW OFFICERS

MUST REPORT

–Positive, adulterated, or substituted drug and alcohol test results; and

–Alcohol and drug test refusals, as defined by 49 CFR 40.191

SUBSTANCE ABUSE PROFESSIONALS

MUST REPORT

–Within 1 business day

•Identification of driver and date of initial drug or alcohol assessment; and

•Successful completion of treatment and/or education and determination of eligibility for return-to-duty testing

STATE LICENSING AGENCIES

MUST CHECK CLEARINGHOUSE BEFORE

Issuing commercial drivers licenses

Renewing commercial drivers licenses; or

Transferring commercial drivers licenses

WHEN YOU NEED TO DO IT

NOW!

–The rule went into effect on January 5, 2017

BUT

–You have until January 6, 2020 to be in compliance

•To give you enough time to implement policies and procedures to ensure compliance

Everything Else you Need to Know

Driver’s Written Consent

•Must have driver’s written consent to query the database for test results  (Privacy Act of 1974)

Practical tip

»For new hires:  if they don’t  consent, don’t hire them

»For current drivers:  have them execute one written consent form that covers all annual queries

•Drivers can check their info at any time for free

Everything Else you Need to Know

No more three-year employment check!

After three years, the Clearinghouse will relieve motor carriers of their duty to check the last three years of employment history

•(but keep checking until January 2020)

Everything Else you Need to Know

–Records of driver drug/alcohol violations will stay in the database for

–5 years

–or until the driver has completed the return-to-duty service process

–(whichever is later)

Everything Else you Need to Know

Expected Benefits

•Increased safety of motor public

•$42,000,000 reduction in costs associated with motor vehicle collisions

•Increased profits due to

–Simplified hiring process (less lag time)

–Less driver turnover (decreased employment overhead)

Everything Else you Need to Know

–The FMCSA will require a “reasonable subscription fee” from entities required to comply.

–Amount not yet determined

–The FMCSA will contract with a third-party to operate and maintain the Clearinghouse – the fees will be determined by a “competitive bidding process.”

Everything Else you Need to Know

–The rule does not change any existing DOT-wide procedures for workplace drug and alcohol testing.

Register Now!

–To review the full rule and register your company, go to:

https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/annual-survey-instructions

–Note the frequently asked questions section- lots of helpful information

Shawn N. Kalfus

1180 W. Peachtree St. NW

Suite 2300

Atlanta, GA 30309-3482

(404) 962-1042

shawn.kalfus@smithmoorelaw.com

OSHA Gets in the Mix

•New rules on reporting workplace injuries and illnesses

•Emphasis on accurate reporting

•Accuracy is affected if processes deter or discourage reporting

•What does this have to do with drug testing?

OSHA Gets in the Mix

•FOR NON-DOT EMPLOYEES ONLY

•Should not have a policy that automatically requires employees to be tested if they report injuries or are named in such reports

•Must find a “reasonable possibility” that drug use could have contributed

•Key:  Look for some conduct or behavioral cause for the injury.

OSHA Gets in the Mix

•OSHA rules do not affect:

–DOT drug testing, post accident or otherwise

–Testing under state workers’ compensation law

–Reasonable suspicion testing

–Random testing

OSHA Says . . .

•So, in sum, OSHA says:

If an accident is going to be the basis for ordering a drug or alcohol test, do not test a non-DOT employee unless he or she is injured enough to file a workers’ compensation claim or unless his or her actions (negligent, careless, out of the ordinary) appear to have caused the accident.

Alexander L. Maultsby

300 North Greene Street

Suite 1400

Greensboro, NC 27401

336-378-5331

alex.maultsby@smithmoorelaw.com

Entry Level Driver Training (ELDT)

•Overview

•Compliance date: February 2020

•References:

–81 FR 88732

–49 CFR parts 380, 383, and 384

ELDT: Scope of Coverage

•New Class A and B CDLs

•CDL upgrades

•Hazardous Materials Endorsements

•Motor Coach Endorsements

ELDT: Required Training

•Program from FMCSA approved provider

•Class room and behind-the-wheel training

•Program components include:

–Basic vehicle operation

–Pre/post trip inspections

–Hours of service

–Maintenance

–Cargo handling

–Post-crash procedures

•Must pass a written test and demonstrate behind-the- wheel proficiency

ELDT: Trainers

•Trainers must be approved and listed in FMCSA registry

•To be approved:

–Program must cover all areas required by the rule

–Instructors must have appropriate CDL

–Training vehicles must be of similar to those the trainees will operate

•Classroom portion of training can be web-based

•Trainers are subject to audit or investigation

ELDT: Hours Requirement

•Proposed rule called for 30 hours

•Final rule omitted hours requirement

•Some industry groups are pushing back

Robert T. Green

2 West Washington Street

Suite 1100

Greenville, SC 29601

864-751-7617

robert.green@smithmoorelaw.com

Robert D. Moseley

2 West Washington Street

Suite 1100

Greenville, SC 29601

864-751-7643

rob.moseley@smithmoorelaw.com