United States: FMCSA-Regulated Employers Take Note: Drug And Alcohol Clearinghouse Implementation Quickly Approaching

In 2012, Congress passed and President Obama signed the "Moving Ahead for Progress in the 21st Century Act," a transportation reauthorization bill referred to as "MAP-21." That law directed the Federal Motor Carrier Safety Administration (FMCSA) to create a means of identifying and tracking commercial drivers who violate the agency's drug and alcohol testing program, to ensure that drivers with a history of violating the drug and alcohol regulations are taken off the road until they demonstrate compliance with those rules. On January 6, 2020, nearly eight years later, a FMCSA database called the Commercial Driver's License Drug and Alcohol Clearinghouse (Clearinghouse) will launch. As of this date, employers that use commercial drivers must observe new reporting and query requirements adopted to implement this ambitious safety rule.

The Clearinghouse will enable employers to more easily identify drivers who commit a drug or alcohol program violation while working for one employer, but who fail to subsequently inform another employer. Records of drug and alcohol program violations will remain in the Clearinghouse for five years, or until the driver has completed the return-to-duty process, whichever is later. Compliance with Clearinghouse reporting and query requirements is mandatory to achieve a compliant FMCSA drug and alcohol program.

Driver Drug and Alcohol History Inquiries

The FMCSA is the federal agency within the Department of Transportation (DOT) that enforces drug and alcohol testing rules and regulations for employees who drive commercial trucks and buses, as well as vehicles that carry hazardous materials. These regulations apply to any driver who holds a commercial drivers' license, and set out drug and alcohol testing requirements in addition to general rules on drug and alcohol use.1 The regulations also provide detailed instructions on the steps Covered Drivers must complete if they violate those regulations and wish to resume performing safety-sensitive driving work for any employer. Covered Drivers who have committed drug and alcohol violations are ineligible to operate a commercial motor vehicle on public roads until they have completed a federally-mandated return-to-duty process.

Before the creation of the Clearinghouse, every FMCSA-regulated employer has been required to take proactive steps to verify the drug and alcohol testing record of any Covered Driver about to begin performing safety-sensitive functions (either as a new hire or via internal transfer), primarily by querying the driver's prior employers. If the record showed that the Covered Driver previously violated a drug and alcohol testing regulation, the employer could not allow the driver to perform a safety-sensitive function until the employer confirmed that the driver successfully completed mandatory return-to-duty requirements.

New Query and Reporting Requirements

The rule implementing the Clearinghouse does not change any existing drug and alcohol testing requirements for DOT-regulated workplace drug and alcohol testing, but adds mandatory reporting and review requirements. FMCSA-regulated employers will now be required to track and report the following information directly to the Clearinghouse on an ongoing basis:

  • Any drug or alcohol confirmation test result with an alcohol concentration of 0.04 or greater;2
  • Any refusal to submit to a DOT test for drug or alcohol use (including by submitting adulterated or substituted results, or failing to comply with the testing process without medical excuse);
  • Actual knowledge that a Covered Driver used illegal drugs or used alcohol before duty, while on duty, or following a workplace accident in violation of FMCSA regulations;
  • Negative return-to-duty test results; and
  • Confirmation that the Covered Driver successfully completed all follow-up tests ordered by the Substance Abuse Professional.

The Clearinghouse rule also requires Medical Review Officers, Substance Abuse Professionals, consortia/third-party administrators and other service agents retained by employers to report to the Clearinghouse information related to drug and/or alcohol program violations and the return-to-duty process.

These reports will be compiled in a secure electronic database of information that will allow the FMCSA, as well as FMCSA-regulated employers, to identify Covered Drivers who have violated federal drug and alcohol testing program requirements. As the database grows over time, it will therefore become easier to assess whether an individual is eligible to perform safety-sensitive functions or whether the required return-to-duty process has been completed by individuals who previously violated the FMCSA regulations.Unfortunately, employers must also continue to independently gather driver drug and alcohol program compliance records directly from prior and prospective employers until the Clearinghouse has been operating for three years, which is the look-back period for new driver queries on drug and alcohol program compliance.

FMCSA-regulated employers will be obligated to query the Clearinghouse database whenever the employer "uses" a driver for the first time.3 The employer is expected to proactively review the information in the Clearinghouse to ensure that prospective Covered Drivers are compliant and allowed to perform safety-sensitive functions in accordance with FMCSA regulations. Specifically, employers must query the Clearinghouse before permitting a specific Covered Driver to operate a commercial motor vehicle on public roads. Employers are also required to query the Clearinghouse annually for each Covered Driver they employ to ensure ongoing compliance.

In order to query the Clearinghouse, an employer must obtain the consent of the driver in advance. Consents to initial, or "limited" queries can be evergreen, and allow the employer to continue to query the Clearinghouse as needed (for example, on an annual basis) after the driver's initial check. If the query identifies a relevant report on a driver in the database, however, the driver must at that time and on an individual basis authorize the release of the full query report to the employer. Failing to authorize the release of these records to the querying employer will prevent the employer from using or continuing to use the driver.

As An FMCSA-Regulated Employer – What Must You Do?

In anticipation of the implementation date, FMCSA-regulated employers should begin the process by registering with the Clearinghouse and purchasing a "Query Plan,"4 which is essentially a credit program for a set number of queries. The Clearinghouse website also contains a set of "FAQs" or frequently asked questions to help regulated employers and their drivers become familiar with the process. Once the database "goes live" on January 6, 2020, FMCSA-regulated employers must initiate a query as part of the onboarding process for new Covered Drivers and must complete this process before allowing a Covered Driver to begin performing safety-sensitive functions.

Drivers need not register with the Clearinghouse unless or until there is information in the database for which they will need to authorize a release to current or prospective employers. Employers may want to encourage drivers to create an account, however, as doing so will streamline the process by which a new driver can be hired, or returned to work following a report on a limited query requiring the driver to authorize the full query report.

FMCSA-regulated employers must also be aware of their obligation to identify and submit information to the Clearinghouse and set up processes to capture and report this information. In some cases, the employer may need to create reports documenting support for a report of a violation. For example, supporting documentation will be required when an employer reports actual knowledge of FMCSA drug and alcohol rules, such as a statement from a supervisor who saw the driver engage in prohibited conduct, or documenting a driver's admission or a regulatory violation. Similarly, documentation may accompany a report of a refusal to submit to required drug and/or alcohol testing. The employer must also ensure that all of the information reported to the Clearinghouse was also provided to the Covered Driver in question, and so certify. This process is designed to ensure that Covered Drivers are able to exercise their right to dispute potentially inaccurate information. Although an employer can empower its third-party administrator and others involved in the administration of its FMCSA drug and alcohol program to assist in making these reports, the employer bears the ultimate responsibility to recognize and report required information to the Clearinghouse. Clearinghouse records are also made available to state driver licensing agencies.

On an annual basis, FMCSA-regulated employers also will need to submit a query regarding all Covered Drivers used, to ensure ongoing compliance with FMCSA regulations. As with existing Motor Vehicle Records (MVR) annual review requirements, the Clearinghouse must be queried at least once for each Covered Driver within 365 days of their hire date, or within another 12-month period as determined by the employer. The employer has some flexibility as to the timing of the query it wishes to conduct, but should be aware of how its decision may affect its everyday operations. For example, if an employer elects to run all covered drivers at once as part of its annual review, and the limited query reveals information necessitating a full query on certain drivers, the employer must then conduct a full query on each of those drivers within 24 hours. If the employer fails to conduct a full query within 24 hours – recognizing that the employer must obtain specific consent from the driver to do so within this time period – the employer cannot allow the Covered Driver to continue to perform any safety-sensitive function until the results of the full query confirm that the Covered Driver's Clearinghouse record is clear. Employers should therefore be wary about the potential disruptions this can create in the workplace and be prepared to respond accordingly.

Finally, employers are obligated to notify drivers of the Clearinghouse requirements. Specifically, Covered Drivers must be notified of the requirement that personal information collected and maintained pursuant to the FMCSA regulations will be reported to the Clearinghouse, including: (i) any verified positive, adulterated, or substituted drug test result; (ii) an alcohol confirmation test with a concentration of 0.04 or higher; (iii) a refusal to submit to any test required by the regulations; (iv) an employer's report of actual knowledge, as defined in the regulations, of on-duty alcohol use; pre-duty alcohol use following an accident; and controlled substance use; (v) a substance abuse professional report of the successful completion of the return-to-duty process; (vi) a negative return-to-duty test; and (vii) an employer's report of completion of follow-up testing. Employers can provide this information through an updated policy or a special educational communication to the drivers they use.

On Tuesday, November 12, 2019, Littler will conduct a complimentary webinar on preparing for the Drug and Alcohol Clearinghouse. Click here for more information.

Footnotes

1 The FMCSA controlled substances and alcohol use and testing regulations can be found at 49 CFR Part 382, with testing procedures at 49 CFR Part 40.

2 Information concerning confirmed positive drug screens will be reported by the Medical Review Officer responsible for reviewing the results.

3 FMCSA uses the term "employs" to mean "uses." Businesses need not be common-law employers of drivers to be obligated to ensure compliance with FMCSA drug and alcohol regulations.

4 Information on the registration process and available Query Plans can be found by visiting https://clearinghouse.fmcsa.dot.gov.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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