HireRight’s DAC Trucking Services team works closely with outside agencies and organizations, such as the American Trucking Associations (ATA) and the Federal Motor Carrier Safety Administration (FMCSA), to stay apprised of the latest regulatory activities and legislative changes in the transportation industry. Working with organizations such as these also allows HireRight to serve as an advocate for our customers by supporting legislative activities that allow our customers to background check and drug screen drivers more effectively and efficiently, benefiting the entire industry.
Several major legislative initiatives and regulatory changes impacting the screening industry were introduced in 2009. In addition, the Department of Transportation issued a major change to drug and alcohol testing requirements earlier in the year. There are also pending changes issued by the Department of Health and Human Services that are slated to take effect in May 2010. These initiatives and regulatory changes are discussed in detail below.
Driver Pre-Employment Screening
The FMCSA announced on October 7, 2009, that it will launch a new Driver Pre-Employment Screening Program that will allow motor carriers to electronically access a database of driver inspection and crash records as part of the hiring process. The database will be populated by the FMCSA’s Motor Carrier Management Information System (MCMIS). MCMIS consists of driver performance data, which includes roadside inspection and compliance review results, enforcement data, state-reported crashes, and motor carrier census data.
By using this information during the pre-employment screening process, motor carriers can better assess the potential safety risks of a prospective employee. The program will also offer consumer protection, as drivers will be given the opportunity to verify the data contained in their driving history and to initiate the dispute process to correct any discrepancies.
National Drug and Alcohol Test Clearinghouse
Currently, a loophole in pre-employment drug and alcohol testing exists that can allow a driver who tests positive to apply for work with another carrier and test negative without that employer finding out about the previous positive test result. This represents a critical safety gap for employers.
In May 2009, Sen. Mark Pryor, D-Ark., proposed the Safe Roads Act, which outlines regulatory changes that would require all employers and medical review officers (MROs) to report positive pre-employment tests within three days to a national database. The legislation would also require employers to request, receive, and maintain a report from the national database as part of the pre-employment driver screening requirements. The bill also includes a provision to protect employees’ privacy and define employees’ rights to challenge information contained in the database. The ATA fully supports the bill and is currently working to help secure its passage.
Driver Record Notification System
There is currently a proposal to replace the annual Motor Vehicle Records (MVR) requirement with automated notification system(s), such as HireRight’s Driver Violation Alert or other state-sponsored programs. A study conducted by the FMCSA indicates that drivers with a violation in the past year are 37 percent more likely to be involved in an accident. The FMCSA also estimates that up to 50 percent of drivers who receive a violation do not self-report, meaning employers do not discover violations until the annual MVR review.
More timely notification of violations would improve safety by proactively revealing problem drivers or driving behavior so that employers can take corrective action. The first step in this process would be for the FMCSA to establish minimum standards around the use of an automated notification system. The ATA is currently working with the House Transportation Committee to further discussions on this topic so that the legislation can continue to move forward.
Mandatory Direct Observation
New direct observation rules took effect August 31, 2009. Direct observation is mandatory for any return-to-duty or follow-up testing. All employees who go for return-to-duty and follow-up tests on and after the effective date must have their collections observed. This includes employees currently in follow-up testing programs who were still in those programs on and after August 31. Return-to-duty and follow-up drug tests apply to safety-sensitive transportation industry employees—FMCSA, FAA, FTA, PHMSA, FRA, and Coast Guard—who have failed or refused to take a prior test.
Pending Changes by the Department of Health and Human Services
Proposed changes by HHS for DOT-required drug and alcohol testing were submitted in November 2008, with changes expected to take effect in May 2010. Changes to the requirements include adding MDMA (Ecstasy) to the amphetamine panel, establishing a lower cutoff for amphetamine and cocaine levels, and establishing another laboratory type for testing. These will also require changes to current chain of custody forms. There will be an opportunity for public comment when DOT issues notice of the rule change.