Don’t ignore old drug or alcohol violations
The Drug & Alcohol Clearinghouse is celebrating its third birthday, but it’s no party for some drivers. Despite the rumors, those who had drug or alcohol violations before the Clearinghouse was born cannot be handed a free pass.
Consequences remain
While it’s true that violations that occurred before January 6, 2020, cannot be reported to the Clearinghouse, those violations still hold the same consequences. Drivers who violated the DOT testing rules must be removed from service, undergo treatment, and pass a return-to-duty test before being allowed to drive again.
The tricky part will be finding out about any of those old unresolved violations, because they won’t appear on a Clearinghouse query. In addition, as of January 6, 2023, motor carriers no longer need to ask a driver’s former employers about FMCSA-mandated testing violations, which means some old violations may simply fall off the radar.
SAP complications
Even some substance abuse professionals (SAPs) have a misunderstanding about old violations, falsely assuming that violations older than January 6, 2020, can be ignored. A major reason for that misunderstanding is that SAPs are unable to “process” those violations through the Clearinghouse.
With more recent violations, SAPs are required to enter information about their initial assessment of the driver and the driver’s successful completion of treatment. Without the ability to do that for older violations, some SAPs believe either that the violations no longer matter or that there should be some way to get those violations into the Clearinghouse.
The rules do not place a “statute of limitations” on pre-2020 violations. In addition, the Part 40 rules that SAPs must follow do not even mention the Clearinghouse. As a result, SAPs must continue to process all drivers the same, even though they cannot report information to the Clearinghouse about violations that occurred prior to January 6, 2020.
MROs are in an uncomfortable position
The myths surrounding old violations are also placing medical review officers (MROs) in a tough position. Some are being asked to report pre-2020 violations into the Clearinghouse so that those violations may be processed the same as more recent ones. However, MROs too are prohibited from reporting pre-2020 violations to the Clearinghouse.
What should you do?
If your drivers, MRO(s), or SAP(s) suggest that drug or alcohol violations that occurred before January 6, 2020, either no longer require treatment and a return-to-duty test OR need to be entered into the Clearinghouse, respond with the facts:
- Neither Part 40 nor Part 382 say anything about begin able to ignore “old” violations, no matter how old they might be; and
- The Clearinghouse reporting rules in 382.705 took effect on January 6, 2020, and neither violations occurring before that date nor any part of the SAP process related to those violations can be reported to the Clearinghouse.
You may need to remind your SAP(s) of their obligations under Part 40 and the DOT SAP Guidelines, available at www.transportation.gov/odapc.
Finally, you may continue to ask driver-applicants — and (with written consent) even their former employers — about any DOT drug or alcohol testing violations they may have had prior to January 6, 2020. If you learn that a driver had such a violation and did not complete the treatment and return-to-duty process, make sure that process is complete before using the driver in any safety-sensitive function.
Key to remember: Drug or alcohol violations that occurred before January 6, 2020, still carry consequences even though they cannot be reported to the Drug & Alcohol Clearinghouse.