Worsening drug test results among the nation’s commercial driver workforce have resulted in the federal government setting a random drug testing rate of 50% in 2020 to be met by their employers, representing a substantial increase from the 25% rate that was imposed in 2019.
The minimum annual percentage rate for random alcohol testing remains unchanged at 10%. The Federal Motor Carrier Safety Administration (FMCSA) made the announcement of the new drug testing rate on Dec. 27—just five days before it was to go into effect on Jan. 1.
The notice issued by Secretary of Transportation Elaine Chao also predicted that the change will result in an estimated $50 million to $70 million increase in costs to employers in the truck and bus industries by requiring that more of their drivers be tested.
American Trucking Associations said it was disappointed that the new percentage was announced on such short notice, pointing out that trucking companies already had already completed their annual budget planning by the time the edict was issued. ATA also has advocated for hair testing, which it says is a more accurate method. A hair testing rule is expected to be proposed by FMCSA later this year.
When it comes to its current rules, FMCSA chooses a group of companies employing commercial driver license (CDL) holders to participate in a survey each year. The survey requires them to submit their annual federal drug and alcohol testing program results to the agency. The selected carriers also are held responsible for ensuring the completeness, accuracy and timeliness of the data they submit.
Under the regulations, if the total reported positive rate is equal to or greater than 1%, FMCSA will increase the minimum annual percentage rate for random controlled substances to 50% for all driver positions. In 2018, the most recent year for which the agency has results, the positive rate was figured at exactly 1%. For 2016 and 2017, the estimated positive usage rate for drugs was estimated to be 0.7% and 0.8%, respectively.
For the 2018 survey, forms were sent to 4,480 randomly selected motor carriers. Of these forms, 1,908 were completed and returned to FMCSA, resulting in usable data from 1,552 carriers (comprising 300,635 CDL drivers), which the agency says gave it a better picture of the state of random controlled substance testing in the industry.
Based on the 2018 survey results, the estimated percentage of subject motor carriers with random controlled substance and alcohol testing programs in place is 94%, and the percentage of all CDL drivers participating in such programs is estimated to have been 99%. Among the estimated 3.2 million CDL holders operating in interstate commerce and 1 million CDL holders operating in intrastate commerce, at least 1.05 million random controlled substances tests were conducted, with an annual random testing rate of 25%.
At a 50% annual random testing rate, approximately 2.1 million random controlled substances tests will need to be conducted in calendar year 2020, the agency reported, which puts an additional strain on employers.
Clearinghouse Obligations
Starting Jan. 6, employers of commercial drivers also are now required to submit drug testing data to the new FMCSA CDL Drug and Alcohol Clearinghouse. In addition, employers must query the Clearinghouse about any driver they intend to hire before allowing that person to drive.
Late last year, the agency also announced a three-year delay in requiring state licensing agencies to participate in the Clearinghouse. The motor vehicle licensing agencies had pointed out that FMCSA failed to detail how they were to participate in the program, both in terms of reporting to and making use of the Clearinghouse database. The state agencies can still participate voluntarily, but they are not required to do so.
FMCSA said the compliance date extension allows it time needed to work on another rulemaking designed to address questions concerning state agency access and use of driver-specific information from the Clearinghouse. The postponement also will allow FMCSA to develop an IT platform for the state agencies to use to electronically request and receive clearinghouse information.
When it comes to fleet operators, in addition to new hires they must query the Clearinghouse at least once a year for each driver they currently employ. Drivers must sign a consent form allowing the employer to do so. Employers must report drivers’ drug and alcohol violations to the Clearinghouse within three business days after learning of the information.
In addition, employers are required to ban drivers who have violated FMCSA’s drug and alcohol program regulations from performing safety-sensitive duties unless the driver complies with the return-to-duty process mandated by agency regulations.
In addition to registering with the Clearinghouse, employers are expected to add language to their FMCSA drug and alcohol testing policies notifying drivers and driver applicants that the following information will be reported:
● A verified positive, adulterated, or substituted drug test result.
● An alcohol confirmation test with a concentration of 0.04 or higher.
● A refusal to submit to a drug or alcohol test.
● An employer’s report of actual knowledge, as defined in the regulations.
● On-duty alcohol use.
● Pre-duty alcohol use.
● Alcohol use following an accident.
● Other drug use as is defined in the regulations.
● A substance abuse professional’s report of the successful completion of the return-to-duty process.
● A negative return-to-duty test.
● An employer’s report of completion of follow-up testing.
Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and criminal penalties set forth in the agency’s regulations, including possible civil penalties of up to $2,500 for each offense.
