2023 DOT Updates

Jan 18, 2023

Pre-employment Investigations

It has now been three years since the FMCSA Clearinghouse came into being, with all FMCSA DOT violations to the drug and alcohol regulations being posted within it. This means that for employers following 49 CFR 391.23(e) they are now able to find all of the FMCSA violation information, for the past three years (as required), within the Clearinghouse. There is no longer any need to contact previous employers to make these inquiries, all violations will have been entered into the Clearinghouse.

It must be noted, however, that if the employee has worked for another DOT agency, such as the FRA, FTA, or FAA, the employer will still be required to directly request violation information from those employers, as it will NOT be listed in the FMCSA Clearinghouse database.

Random Drug Testing Rates

Every year each DOT agency, which regulates its specific transportation industry, sets the random testing rate for their agency. The rates can stay them same, or be increased or decreased. These changes, if they occur, are based on the information reported from the drug and alcohol Management Information System (MIS) form which is required by the 49 CFR Part 40, as well as any other indicators such as violation reports to the Clearinghouse for the FMCSA, for example.

These random testing rates are the minimum yearly requirements for each agency respectively. For example, if an agency has a minimum requirement of 50% for drug testing, and 10% for alcohol testing it would mean that an employer with 100 employees working in safety-sensitive positions would have to make sure that 50 employees were randomly chosen for drug testing, and 10 were randomly chosen for alcohol testing, in that year.

This year all of the alcohol testing rates for each of the agencies has remained the same, however the drug testing rate has changed for the Pipeline & Hazardous Materials Safety Administration (PHMSA). The PHMSA’s annual random drug testing rate will now be 25% in 2023.

Enforcement Discretion for SAPs

This update is regarding amendments to the requirement for Substance Abuse Professionals to conduct their assessments in person, as part of the return-to-duty process. As per the 49 CFR §§ 40. 291, 40.293, and 40.301, SAPs are directed to conduct all return-to-duty assessments interviews face-to-face, for those employees who have violated the DOT drug and/or alcohol regulations.

This requirement was amended by ODAPC during the COVID-19 public health emergency as they recognized that it was often simply not viable for these assessments to occur face-to-face. So, on April 4, 2020 ODAPC issued a Statement of Enforcement Discretion to allow remote “face-to-face” assessments, and then, extended this allowance several times in the following years.

The DOT and ODAPC issued a new statement of enforcement discretion, which became effective Jan. 1, 2023. As was initially stated in the original Statement of Enforcement Discretion, the choice to conduct remote assessments is completely voluntary, and SAPs are able to continue conducting in-person assessments as they see fit.