States have 60 days to downgrade licenses of drivers with drug and alcohol violations
Effective November 8th, rulings from the Federal Motor Carrier Safety Administration (FMCSA) will require any state driver’s licensing agency (SDLA) to initiate mandatory downgrades of commercial driver’s licenses and commercial learner’s permits once they are notified that a driver has failed a drug or alcohol test. These agencies must not issue, renew, upgrade, or transfer a commercial driver's license (CDL), or commercial learner's permit (CLP) for any individual prohibited under FMCSA's regulations from performing safety-sensitive functions after any drug and alcohol program violations. CDL or CLP privileges must be removed from the driver’s license, effectively downgrading it, until the driver completes all return-to-duty requirements.
For the downgrade provision, FMCSA will send notifications to state agencies when a drug or alcohol violation is reported to their Drug & Alcohol Clearinghouse. The rule requires states to complete and record the CDL downgrades on the CDL Information System’s driver record within 60 days of notification. When a driver complies with return-to-duty requirements, FMCSA will send another notification to the state agency informing them that the driver is no longer prohibited to drive.
The rule also includes a provision that states that if a driver is falsely identified as prohibited, FMCSA will notify the state agency that they are not prohibited and must have their CDL privileges “promptly reinstated” and their driving record expunged.
The rule states that “the CDL downgrade requirement rests on the simple, but safety-critical, premise that drivers who cannot lawfully operate a CMV because they engaged in prohibited use of drugs or alcohol or refused a test should not hold a valid CDL or CLP.”
When issuing the rule, FMCSA explained that because most state driver’s licensing agencies do not receive any information regarding drug and alcohol violations of drivers who are licensed in their state, some drivers who are not supposed to be on the road continue to operate trucks with valid licenses. The new rule will help deter unsafe driving and close the “knowledge gap by ensuring that all SDLAs are able to determine whether CMV drivers licensed in their state are subject to FMCSA’s CMV driving prohibition,” FMCSA stated. Compliance with the final rule is required by November 18, 2024.
What is the return-to-duty protocol?
Before an employer allows a driver to return to duty to perform a safety-sensitive function after the driver has violated prohibitions that driver must first do the following:
- Be evaluated by a substance abuse professional (SAP).
- Participate in and complete the treatment program prescribed.
- Pass a drug and/or alcohol return-to-duty test.
- Have a documented follow-up testing schedule.
Employers are responsible for reporting negative return-to-duty test results to the Clearinghouse by the close of the third business day following the date on which the employer obtained the information
A return-to-duty test can be used as a pre-employment test when a pre-employment test is required and the new employer would be required to conduct both tests on the same day.
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“6.5.5 Return-to-Duty Process and Testing (under Direct Observation).” The Motor Carrier Safety Planner, FMCSA, https://csa.fmcsa.dot.gov/SafetyPlanner/MyFiles/SubSections.aspx?ch=23&sec=70&sub=185.
“Controlled Substances and Alcohol Testing: State Driver's ...” The Federal Register, 7 Oct. 2021, https://www.federalregister.gov/documents/2021/10/07/2021-21928/controlled-substances-and-alcohol-testing-state-drivers-licensing-agency-non-issuancedowngrade-of.