What Does FMCSA Increase To 50% Random Drug Testing Rate Mean For Fleets And The CDL Clearinghouse?
In December, the Federal Motor Carrier Safety Administration (FMCSA) has increased its random drug testing rate from 25% of CDL drivers tested to 50%, effective Jan. 1, 2020.
So, why was this change made?
For the last four years the random drug testing rate has stayed at 25%. Now that more than 1% of drivers have tested positive in their FMCSA random testing, on January 1st, 2020, the rate automatically reverts to the 50% random testing rate.
This rate increase was partially due to the legalization of recreational marijuana in many states nationwide creating a more widely accepted stigma around weed and the recently added (in 2018) semi-synthetic opioids to the random drug test panels that are generally taken as pain pills.
How This Increase Affects Fleets With CDL Drivers?
FMCSA estimates there are 3.2 million CDL holders operating in interstate commerce and 1 million CDL holders operating in intrastate commerce. With this population and 50% of drivers to be tested, approximately 2.1 million random controlled substances tests will need to be conducted in calendar year 2020.
With more drivers being test, more drug tests and results will have to be performed, likely slowing down the drug testing process.
Some common delays in this DOT testing process may include:
- Getting the specimen to the lab (sometimes not overnight),
- MROs not receiving chains of custody and must take extra time to obtain it, and
- Labs taking longer to verify results due to more confirmation tests happening
In other words, more drivers will be found testing positive and either go through a SAP to eventually Return-to-Duty or leave the industry as a CDL driver.
Historically, many of the drivers that tested positive and were let go tried to switch jobs and hide their positive drug test (or refusal to take a drug test) with their new employers. This “loophole” will now be closed with the FMCSA CDL drug and alcohol Clearinghouse going live January 6th, 2020.
How The FMCSA CDL Clearinghouse Will Complicate Issues In 2020
With the FMCSA CDL Drug and Alcohol Clearinghouse now live, the FMCSA Portal website (required to access for Clearinghouse registration) and the Clearinghouse website is crashing, and confusion is running rampant.
The biggest issues the Clearinghouse will immediately cause will affect fleets that are hiring drivers in January. These fleets need to make sure they are registered to the Clearinghouse, which has been crashing for over a week.
Many of these hiring fleets are likely to send in a potential new hire for a pre-employment drug test at a collection site. As required by the new rule, the driver needs to be “queried” to see if the database has any red flags on the driver. However, this driver is not registered in the Clearinghouse database to give consent that the company can run this query, causing a compliance issue.
Before the driver can be tested for their pre-employment drug test, that driver (which is likely sitting at the drug testing site) will have to:
- Register as a driver to the Clearinghouse
- The employer will have to select the driver to request electronic consent of a query
- The driver will need to give consent within the Clearinghouse, and then
- The employer or their C/TPA can run a query on the driver.
- If nothing is found in the database, the pre-employment drug test can continue.
Issues to be aware of in this process:
- If the employer sends a consent request to the driver… but the driver has not registered to the Clearinghouse to authorize consent, the FMCSA will mail a letter to the driver based on their license address about the consent request, which could take 2-3 weeks to get to the driver.
- If the employer tells the drug testing site that the consent was received by the driver (but this never actually happened), the drug test site will note the consent and perform the drug test. Later, if that company is audited, the employer can be held at fault if the violation of no consent was caught.
As you can tell, this will delay the pre-employment testing process and cause many headaches, especially for drug testing sites that are not up-to-date on FMCSA testing guideline changes or Clearinghouse rules.
On the DOT auditor side, after any grace-period of getting everyone registered to the Clearinghouse (which the FMCSA has stated will NOT happen), auditors can look to see when a pre-employment drug test was completed and when the pre-employment Clearinghouse query was conducted. If the drug test date was BEFORE the query date, this would be out of compliance and could possibly receive a violation.
Furthermore, auditors can easily see if annual queries in the Clearinghouse on all drivers were conducted or not. If not, the company is in violation and could face fines.
Fleets that are hiring in January need to register to the Clearinghouse and make sure the potential new-hire driver also registers to the Clearinghouse. With the Clearinghouse website and FMCSA Portal website crashing, there may be a delay in this registration and pre-employment hiring process. If registration issues persist, try registering after normal working hours when the website has less people trying to register.