Effective Jan 1st, 2016, the FMCSA announced that it is, “Reducing the minimum annual percentage rate for random controlled substances testing for drivers of commercial motor vehicles (CMVs) requiring a commercial driver’s license (CDL) from the current rate of 50% of the average number of driver positions to 25% of the average number of driver positions.”
As a company that employs commercial drivers, you might be asking yourself, “Should I lower my testing rate to 25% or not?” Our recommendation is to not lower your rate at least not yet.
Why the Testing Rate Fell
In order for the FMCSA to lower the random drug testing rate, the rate for positive, FMCSA-regulated random drug test results must fall below 1% for three consecutive years. For 2011, 2012, and 2013, the FMCSA has recorded a positive test result rate of 0.7%. This data is based upon FMCSA’s most recent survey (2013) of drug-test results from 1,654 different motor carriers. Combined, these carriers employ approximately 497,000 commercial drivers and 0.7% (34,790) tested positive for metabolites from controlled substances. In the 2012 and 2011 surveys, the estimated results were 0.6% and 0.9%, respectively.
While these numbers may show an encouraging trend, these surveys do not include refusals, failures to produce a sufficient urine sample without a medical explanation, and other situations, which are treated as a positive test. Furthermore, survey takers donate information on a volunteer basis, which many industry analysts believe discourage carriers with high positive testing rates from contributing information. Finally, these numbers fail to account for data from 2014 and 2015, during which time many states passed measures to legalize the medicinal and recreational use of marijuana. All of these factors give us reason to treat the FMCSA’s data on positive testing rates with greater suspicion.
Does This Data Reflect What We See Today?
For CleanFleet, our positive testing (including refusals) rate has increased over the last 3 years and the positive testing rate for 2015 is 1.45%, which is double that of the FMCSA and far above the 1% threshold. Our positive testing rate in 2013, the year of the FMCSA survey, was 0.96%. Over the next two years, we saw a 51% increase in positive test results! As CleanFleet is based based in Oregon, this increase above the FMCSA’s reported national survey results may reflect the legal recreational and medicinal use of marijuana in Oregon and Washington. However, as CleanFleet also services clients across the US, we have reason to believe that our numbers reflect wider trends in the increasing use of controlled substances for commercial driver.
In addition to our stats, a survey by the Substance Abuse and Mental Health Services Administration showed an increase in individuals who reported marijuana use over the past month, which rose from 6.2% of Americans over age 12 in 2002 to 8.4% in 2014. In addition, the National Institute on Drug Abuse reports that, since medical marijuana was legalized in Colorado in 2009, the percentage of marijuana-positive drivers involved in fatal motor vehicle crashes there has increased significantly.
Minimum Testing Rate May Not Protect You in the Court of Law?
The FMCSA has now lowered the minimum random drug-testing rate as a result of the aforementioned results of their survey, a decision expected to, “Save the industry millions of dollars in operational expenses.” Rob Abbott, ATA’s vice president of safety policy added, “This announcement is an important step that will immediately reduce regulatory and cost burdens for motor carriers.”
Following the minimum testing standards will protect you from violating FMCSA regulations. However, basic compliance will not protect you in a situation of civil litigation. Lowering your testing rate for the reasons of “burden” and “expense” will not protect you in court of law, and in fact may be used against you if the plaintiff can prove that going beyond the minimum standards would have significantly lowered your risk for accidents, crashes, injuries, and fatalities. Moreover, minimum documentation standards may not be sufficient to prove that you exercised due diligence in maintaining safe working conditions and screening out potentially dangerous drivers.
Don’t know where to start in deciding what testing rate and testing programs are best for your business. Do you want an evaluation of both your current FMCSA compliance and your general legal liability as it relates to your drug and alcohol testing program? Reach out to CleanFleet and we’ll be happy to help!