Navigating FMCSA’s Drug Testing “Blind-spots”
The U.S. Department of Transportation (“DOT”) under the Federal Motor Carrier Safety Administration (“FMCSA”) mandates that all person’s subject to the commercial driver’s license (“CDL”) requirements and their employers follow the alcohol and drug testing rules. The FMCSA rules and regulations outline for employers and their employees the procedures for testing, the frequency of tests, as well as the substances for which testing will be conducted. The people or entities subject to or otherwise impacted by FMCSA rules and regulations are anyone employing CDL drivers to operate commercial motor vehicles (“CMV”) on public roads, CDL drivers who operate CMVs on public roads, interstate motor carriers, intrastate motor carriers, federal, state, and local governments, civic organizations, and faith-based organizations.
An employer/entity subject to the FMCSA rules and regulations related to drug testing must have a thorough understanding of how FMCSA’s drug testing rules may help an entity/employer protect itself against a driver using prohibited substances but employers/entities must also understand the large blind spots that exist under the current framework that may leave that employer/entity vulnerable.
- FMCSA Testing Blinder – Prescribed Opioids
According to FMCSA Section 382-301, before a driver may perform any safety sensitive functions on an employer’s behalf, that driver shall undergo testing for a variety of controlled substances. The list of controlled substances for which an employee is tested was expanded to include synthetic opioid drugs (hydrocodone, dydromorphone, oxycodone, and oxymorphone) along with marijuana, cocaine, amphetamines, and phencyclidine – PCP. Synthetic opioid drugs were added to this list due to the information coming out with respect to the opioid use problem and because opioids can cause drowsiness, slower reaction times, and diminished alertness – conditions that may lead to serious and potentially deadly results for a person driving a CMV.
- The blind spot?
According to Section 382-213, despite the concern about drowsiness or alertness, a driver may perform safety sensitive functions for an employer while prescribed opioids by a licensed medical practitioner “who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.” This appears to conflict with the already stated FMCSA requirement for a verified negative controlled substances test before a driver may perform any safety sensitive functions.
However, a driver who tests positive for opioids in any FMCSA drug test is entitled to have that positive test changed to a negative test by providing the medical review officer (“MRO”) with a copy of the prescription from a licensed medical provider for the identified opioid. As such, FMCSA Section 382-213 permits a driver to perform safety sensitive functions and an employer may have no knowledge that its driver is using opioids while on the clock.
- Where’s the concern?
The concern is that operating a motor vehicle while under the influence of opioids is a potentially dangerous endeavor that becomes potentially more dangerous when the vehicle being operated is a tractor trailer with a full load traveling down an interstate at seventy miles per hour. And this may be perfectly within the FMCSA rules and regulations.
Of additional concern is that the MRO may make the determination that a positive for opioids remains a positive despite being presented with a valid prescription for the opioid medication if the MRO has reason to be believe the driver is abusing the drug. However, the MRO and the prescribing medical provider do not speak with each to compare notes. Further, the test used to detect opioids and other controlled substances is a urinalysis test, which fails to provide information with respect to how much or how little of the substance is in the user’s system and whether the user may be impaired. A blood test would be necessary to determine impairment and the FMCSA doesn’t require it.
Here’s one scenario that should cause concern: a driver has a valid prescription for opioid medication prior to being employed, he passed the pre-employment-controlled substance test by providing the valid prescription, and one day before the driver’s shift, s/he takes more than the recommended dosage. On this day, the driver becomes involved in a single vehicle accident, causing significant damage to the tractor trailer, and the driver suffers significant physical injuries. The driver is subject to a post-accident-controlled substance test according to FMCSA Sect. 382-303(b)(2)(i) and (ii). This driver will “pass” the controlled substance test post- accident because the driver has a valid prescription for the opioid medication so any positive result for opioid would presumptively be made negative by MRO. The MRO, because the test is a urinalysis test, will have no reliable method for knowing that the driver “abused” the opioid medication on that day. The drug testing company will inform that driver’s company that the driver passed the controlled substance test.
- What’s a company to do?
Unfortunately, the hands of employers/entities are somewhat tied with regards to what they can do in the situation described above under the current FMCSA rules and regulations. The driver’s use of prescription medications is protected from disclosure absent some evidence that the driver is misusing or abusing medications.
Trucking companies, however, are not without a means to protect themselves from hiring drivers currently prescribed opioid medications. The best and most specific method for a trucking company to help identify drivers who are prescribed opioids is to pay for and have all potential newly hired drivers undergo, and pass, a DOT medical exam. The employer, by paying for the medical exam, would have access to the medical history of the driver, including any currently prescribed medications. The DOT medical exam does not provide foolproof protection because the exam and the medical examiner are reliant on the driver for relaying accurate information, but it is preferable to not doing it.
- New Clearinghouse
Beginning in January 2020, the DOT rolled out its Drug and Alcohol Clearinghouse. The Clearinghouse is a database intended track CDL holders that have failed alcohol or controlled substance tests, including drivers that have just refused to take an alcohol or controlled-substance test.
Employers or the agents are now required to update the clearinghouse with any DOT alcohol or controlled substance violations by their employees and with verification of the CDL driver’s completion of the steps in the DOT return-to-duty process. Employers are now required to also report drug/alcohol testing violations to include all positive tests and refusals to take such tests. These tests are maintained in the clearinghouse for five years.
The Clearinghouse regulation provides for two types of queries of the database: Full and limited. Employers are now mandated to complete a full query at the pre- employment state which will show any violation of FMCSA drug-testing regulations in Part 382. A full query by the employer/entity requesting the consent of the driver. The second type is a limited query; the new Clearinghouse regulation requires a limited query be done at least once a year on all the carrier’s drivers.
- Not a Panacea but Major Improvement
The new Clearinghouse does not remove all the blind spots, loopholes, or otherwise cure the problems associated with employers having drivers with alcohol or controlled substance violations driving their CMVs. It is, however, a step in the right direction in the effort to make the roads safer for all operators of motor vehicles. Certain loopholes or blind spots remain such as the driver that is currently employed but fails or refuses a pre-employment drug test. That driver remains employed and his current employer is unaware of the violation. Another blind spot of the Clearinghouse is that the Clearinghouse lacks a mechanism for notifying current employers when one of its current drivers fails a test during the pre-employment testing for another company
So how can employers make the best use of the new Clearinghouse and best limit a driver with violations slipping through the cracks? One step is for the trucking companies to fulfill their obligations of populating the Clearinghouse database with up to date information as soon as practicable. Another proactive step is for the employer to run queries on all drivers monthly, not just annually. The cost of each query is $1.25 per query per driver or $15 a year per driver. Should a trucking company find itself engulfed in litigation following a trucking accident involving a driver with a drug/alcohol violation, that trucking company would most certainly not want to say it failed to learn of the driver’s violation because the company was unwilling to pay an extra $13.75 a year to run monthly queries.
FMCSA rules and regulations provided employers/entities with CDL drivers some methods to protect themselves from drivers that operate CMVs while under the influence of controlled substances. But as noted above, simply following the FMCSA rules and regulations won’t provide full protection. There are, however, steps companies can and should take. These include being proactive by paying for the DOT medical exams for all newly hired drivers and currently employed drivers so that the employers may learn if the driver is currently prescribed medications that the employer believes may create an unsafe work environment. Also, don’t simply do the minimum. The new Clearinghouse regulation mandates annual queries but permits more frequent ones – conduct more frequent queries. The queries are easy and inexpensive. Just these two steps have some upfront costs but those costs pale in comparison to consequences of not being prepared.