On January 6, 2020, motor carriers using drivers subject to the FMCSA’s drug and alcohol rules will be required to submit testing results and other information to a new electronic Drug and Alcohol Clearinghouse. The Clearinghouse is a tool to be used to comply with the Substance Abuse and Mental Health Services Administration (SAMSHA) drug and alcohol regulations for drivers required to hold a commercial driver’s license (CDL). Any violations pursuant to 49 CFR Part 382, Subpart B will be maintained in the Clearinghouse. The goal of the Clearinghouse is to streamline the process for ensuring driver compliance.
Employers and individuals that are covered under these new regulations include:
- Any employer who employs and uses a driver with a CDL; and
- Individuals who operate commercial vehicles and hold a CDL.
Commercial vehicles include large property carrying commercial vehicles, large passenger vehicles capable of carrying 16 people or more, or vehicles used to transport any hazardous materials.
The FMSCA is strongly recommending that employers visit https://clearinghouse.fmcsa.dot.gov/Register to register their organization in the Clearinghouse before the January 6, 2020 implementation date. Though entering driver information in the Clearinghouse database becomes mandatory on January 6, 2020, employers still must maintain their reference check current process of contacting prior companies the driver worked for until January 6, 2023. Using both the Clearinghouse and contacting prior commercial motor vehicle employers will allow the Clearinghouse time to obtain and maintain driver data to eventually eliminate the need for organizations to contact former employers.
Through the new Clearinghouse, employers will able to run a driver query to determine if the current or prospective employee can perform safety sensitive functions or if they are prohibited because of a drug or alcohol program violation. Employers will be charged $1.25 per query. The rate will be higher for organizations that use a third-party administrator to run checks. Queries must be submitted at the pre-employment, post-offer stage for prospective employees and annually for any existing drivers. Annual queries may be submitted during any 365-day period as determined by the employer. To submit a query, employers will need the driver’s CDL information. Queries in the Clearinghouse cannot be run using an employee’s Social Security Number.
Third party administrators (TPA) can use the Clearinghouse on behalf of an employer if the employer designates the TPA to do so
Covered employers must obtain consent from their drivers to run a query. If an employee does not give consent, the Company cannot allow the employee to drive. There are two types of queries: full and limited.
- A full query must be obtained in the pre-employment stage and requires that the driver provide specific consent to the employer. This consent must be provided electronically within the Clearinghouse as well as paper consent provided by the prospective employer. Employers should work with legal counsel to create a specific document for consent to ensure compliance.
- A limited query is run on an annual basis for existing drivers. and requires a general consent is required. Limited queries are Employers may obtain a multi-year general consent from each driver for limited queries. A sample document can be found here, however, employers are strongly encouraged to work with legal counsel to create a specific document based on their business.
If a limited query indicates that there is a driver record in the Clearinghouse, the employer must then run a full query to obtain the additional information, also requiring driver consent for a full query. Any adverse information on a driver will be maintained in the Clearinghouse for five years.
Drivers will also need to register to provide electronic consent in the Clearinghouse if a prospective or current employer needs to conduct a full query of the driver’s Clearinghouse record; this will include all pre-employment queries beginning on January 6, 2020. Driver registration is available at https://clearinghouse.fmcsa.dot.gov/register.
Employers are also responsible for reporting any actual knowledge of a drug and alcohol testing program violation to the Clearinghouse. Actual knowledge is defined as “based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances, or an employee’s admission of alcohol or controlled substances use.”
Additional questions and answers may be found here. The information in this article provides a high-level overview of what to expect. Specific requirements for covered employers and employees are extensive and nuanced. Employers are being urged to seek legal counsel for assistance in compliance with the updated rules.
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