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Compliance MythBuster, Part 1 – The Ongoing Requirement to Verify Previous Driver Employment and Safety Performance History

By Dave Osiecki & Sean Garney of Scopelitis Transportation Consulting LLC & Regulatory Consultants to DriverReach – March, 2021 

In the wise words of Mark Twain: “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”

DriverReach is starting a new blog series aimed at accurately communicating driver and fleet-related requirements, typically governed by Federal Motor Carrier Safety Administration (FMCSA) safety rules. The idea is to dispel some common industry myths or misconceptions. This is the first blog in our new ‘Compliance MythBuster’ series.

The Compliance Myth: Now that the FMCSA’s CDL Drug & Alcohol Clearinghouse is up and running, carriers performing the required pre-employment query fulfills all of the previous employer history check requirements. This is false

The Facts: There are two previous employer history checks required under FMCSA’s rules. The first is the Previous Employer Safety Performance History Check. The second is the Previous Employer Drug & Alcohol History Check. Both are still required under FMCSA’s safety rules. These required ‘investigations’ are found in the Federal Motor Carrier Safety Regulations at Section 391.23--a section in the rulebook aptly titled “Investigations and inquiries”. 

The Previous Employer Safety Performance History Check in Section 391.23(d), requires motor carriers seeking to hire a commercial motor vehicle driver to contact the driver’s previous employers to:

  1. request general driver identification information;
  2. verify employment information for the prior 3 years; and
  3. request information from previous motor carrier employers on any DOT-recordable accidents in which the driver-applicant may have been involved in the prior 3 years.

The Previous Employer Drug & Alcohol History Check in Section 391.23(e) requires motor carriers seeking to hire a CDL driver to request specific information from all previous DOT-regulated employers (i.e., motor carriers, railroads, airlines and transit operators) for whom drug testing was required within the prior 3 years. Motor carrier must ask:

  1. whether the driver had violated the drug and alcohol rules in Parts 382 or 40 of 49 CFR;
  2. whether the driver failed to undertake or complete a prescribed rehab program (if the previous employer does not know, the prospective carrier must obtain this information from the driver); and,
  3. for a driver who had successfully completed a rehab program, and remained employed by the employer that referred the driver to that program, information on whether the driver had any subsequent positive alcohol or drug tests, or refusals to be tested.

Beginning January 6, 2023, hiring motor carriers will not need to do the Previous Employer Drug & Alcohol History Check with previous motor carrier employers** since, at that point, the Clearinghouse will have been in place for 3 years, and it will be populated with this same information.

Now, here’s the important myth busting information: Even after January 6, 2023, all hiring motor carriers will still be required to perform the Previous Employer Safety Performance History Check. This requirement is not going away because the information required to be collected by hiring motor carriers is not reported to or stored in the Clearinghouse. 

** After January 6, 2023, if a driver-applicant was employed in a safety sensitive function by a DOT-regulated employer that was not a motor carrier (e.g., a railroad or a transit bus operator), a hiring motor carrier must still perform the Previous Employer Drug & Alcohol History Check. This is the case since these other DOT-regulated employers are not required to submit information to FMCSA’s Drug & Alcohol Clearinghouse.

 

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