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Transportation Updates – FMCSA National Drug and Alcohol Testing Clearinghouse

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Key Highlights

Employer obligations

  • The national clearinghouse database will administer and enforce the drug and alcohol testing program.
  • Employers must use the database to ensure current and prospective employees do not have unresolved violations.
  • The database will enable employers to identify drivers who are ineligible to operate a CMV.

Important Dates

  • The national clearinghouse final rule was published on Dec. 5, 2016.
  • Compliance with the final rule is required by Jan. 6, 2020.
  • On Sep. 6, 2019, the FMCSA proposed extending the compliance for state licensing agencies only to Jan. 6, 2023.

Overview

The Federal Motor Carrier Safety Administration (FMCSA) has created a national drug and alcohol testing clearinghouse that will take effect on Jan. 6, 2020. The regulation that established the clearinghouse was required by the Moving Ahead for Progress in the 21st Century Act (MAP-21).

The clearinghouse will centralize the testing processing for commercial driver license holders (CDLs) who operate commercial motor vehicles (CMVs). The clearinghouse is expected to improve roadway safety by helping employers identify drivers who are ineligible to operate a CMV because they have violated FMCSA drug and alcohol regulations.

Motor carriers will need to use the national clearinghouse database to check on a current employee’s status at least once per year. Verification for prospective employees must be part of the employer’s hiring process.

To provide some guidance on these changes, our partners at Acuity have outlined a few of the new requirements below.

The Clearinghouse requires the following:

From motor carriers:

  1. Register as a user in the Fall of 2019.  Be aware, FMCSA will be charging employers fee of approximately $1.25 for conducting queries in the Clearinghouse. Employers must purchase a query plan to ensure they can conduct queries.
  2. Selecting a C/TPA is required for an employer who employs him or herself as a driver or owner-operator.  A query plan must be purchased here also so their designated C/TPAs can conduct queries. C/TPAs cannot purchase queries on behalf of motor carriers.
  3. Obtain driver consent for all new drivers and additional driver consent for current drivers requiring full Clearinghouse queries. Employers are also required to query all current employees at least annually; 
    1. Limited query only on existing drivers with no refusals or positive test results
    2. Full query on new drivers, or a driver refusal or positive test result
  4. Report drug and alcohol program violations
  5. If applicable, report on Return To Duty (RTD) and ensure completion of follow-up testing
  6. New hire drivers, employers are also required, until January 6, 2023, to conduct both electronic queries in the Clearinghouse (annually) and manual, (one time at new hire) offline inquiries to previous employers for pre-employment driver investigations.

From truck drivers:

  1. Truck drivers do not have to create an account if they are not looking to switch jobs, but if they are, they must register in the clearinghouse.
  2. Though all drivers switching employers need to register, only failed tests or refusals will be entered into the clearinghouse database.
  3. Drivers must provide consent to limited query requests and, when required, full query requests.
  4. If required, drivers can register as a user in the Fall of 2019
  5. Drivers will select Substance Abuse Professional (SAP), only if they have a drug or alcohol violation in the Clearinghouse and enter the Return-To-Duty (RTD) process.

 

More About The Drug and Alcohol Clearinghouse

Final Rule

The final rule creates a national clearinghouse for drug and alcohol testing. Under the rule, employers will be required to use the national database to check whether their current and prospective CMV drivers have unresolved violations under the FMCSA’s drug and alcohol testing program.

Under the final rule, motor carriers will need to use the national clearinghouse database to check on a current employee’s status at least once per year. Verification for prospective employees must be part of the employer’s hiring process. Motor carriers are prohibited from allowing employees to perform safety-sensitive functions—including operating a CMV—if they violate the Department of Transportation’s (DOT) drug and alcohol testing regulations.

In addition, the final rule requires CDL holders to notify their employers whenever they violate a drug or alcohol testing regulation while working for a different employer. The FMCSA has explicitly stated that drivers are not required to notify the employer who administered the test. Drivers who fail to notify their employers as required may be subject to civil and criminal penalties.

Affected Employers

The final rule applies to individuals who operate CMVs in commerce in the United States and who are subject to the CDL requirements or the equivalent CDL requirements for Canadian and Mexican drivers. Specifically, the final rule affects motor carriers and organizations that employ individuals who hold a valid CDL and are subject to drug and alcohol testing under FMCSA regulations.

Drug and Alcohol Testing Requirements

The FMCSA requires CDL holders to participate in the federal drug and alcohol testing program if they operate CMVs that:

  • Have a gross vehicle weight rating (GVWR) of 26,001 pounds or more;
  • Are designed to transport 16 or more passengers (including the driver); or
  • Are used in the transport of hazardous materials.

In addition, under the drug and alcohol testing program, employers cannot allow a CDL holder to perform safety-sensitive functions when the employer has actual knowledge that the CDL holder has engaged in on-duty or pre-duty alcohol use, used alcohol prior to post-accident testing or used a controlled substance. “Actual knowledge” may be established through direct observation of drug or alcohol use, an employee admission of drug or alcohol use, information provided by a previous employer, or a traffic citation for driving a CMV while under the influence of drugs or alcohol.

Employers that have actual knowledge of alcohol or drug use may allow CDL holders to drive only after CDL holders complete the DOT’s return-to-duty process prescribed in 49 CFR part 40, subpart O. In addition, the FMCSA has stated that “although not required to do so, [an] employer may, at its discretion, fire the employee without giving the opportunity to complete the return-to-duty process.”

Canadian and Mexican Drivers

The final rule applies to all Canadian and Mexican employees, employers or service agents that are currently required to comply with DOT and FMCSA drug and alcohol testing requirements. Canadian and Mexican motor carriers will have to use and report to the national clearinghouse if they plan to engage in cross-border trucking. Canadian and Mexican trucks are also subject to FMCSA enforcement mechanisms, including investigations and roadside inspections.

Currently, the FMCSA is able to access information about Canadian CDL holders through the Commercial Driver’s License Information System CDLIS . As a result, the FMCSA does not anticipate having trouble accessing or accommodating Canadian information as a part of the clearinghouse design. The FMCSA will work with Canadian authorities if any issues arise that may affect the ability of Canadian carriers to comply with the requirements of the final rule.

Finally, the FMCSA intends to provide access to the clearinghouse only in English, although parties will be able to enter French or Spanish words and names in the various data entry fields. Users with limited English proficiency may seek assistance with the clearinghouse by contacting the FMCSA’s Office of Civil Rights at 202-366-8810 to request a language accommodation.

Clearinghouse

The final rule creates a national clearinghouse as a central repository for CDL holder compliance with the FMCSA’s drug and alcohol testing program. 

Congress directed the FMCSA to establish a national drug and alcohol clearinghouse when the MAP-21 was enacted in 2012. The FMCSA stated that the creation of this national clearinghouse is “a major safety win for the general public and the entire commercial motor vehicle industry” because it will allow carriers across the country to:

  • Identify current and prospective drivers who have tested positive for drugs or alcohol; and
  • Employ CDL holders who drive drug- and alcohol-free. 

The national clearinghouse will also prevent drivers who test positive for drugs or alcohol from concealing those test results from employers simply by moving to a different jurisdiction.

Reporting

The successful implementation of the final rule depends on keeping the national clearinghouse up to date. For this reason, the final rule also includes a reporting requirement that applies to:

  • FMCSA-regulated employers;
  • Medical review officers (MROs);
  • Substance abuse professionals (SAPs);
  • Consortia/third-party administrators (C/TPAs); and
  • Other service agents.

These individuals and entitles will be required to report the following information:

  • Positive drug test results;
  • Alcohol test results greater than 0.04 blood alcohol content;
  • Refusals to test; and
  • Other nontest violations of the FMCSA’s drug and alcohol regulations.

In addition, SAPs are required to report information about drivers undergoing the return-to-duty drug and alcohol rehabilitation process.

Employers retain the discretion to conduct testing beyond what is required by the DOT; however, the final rule does not grant the FMCSA the authority to require employers to report the results of non-DOT tests to the clearinghouse. Positive results from non-DOT tests must be kept separate from DOT test results and may not constitute violations of DOT or FMCSA regulations.

The clearinghouse will retain drug and alcohol program records for five years or until drivers complete the return-to-duty process, whichever is later.

Query Requirements

The final rule requires employers to query the clearinghouse to determine whether current and prospective CDL holders have any unresolved drug and alcohol testing violations. For current employees, verification must take place once per year. For prospective employees, querying the clearinghouse must take place during the pre-employment process.

In addition, clearinghouse queries must take place whenever a CDL is issued, renewed, transferred or upgraded.

CDL Holder Consent

Under the final rule, and in accordance with the Privacy Act of 1974, employers must obtain a driver’s consent before accessing that driver’s clearinghouse record. The FMCSA will also require driver consent before releasing the driver’s clearinghouse record to any employer.

The FMCSA will allow drivers to access their own information, free of charge.

More Information

Please visit the FMCSA website or contact The Horton Group, Inc.  for more information regarding the national drug and alcohol testing clearinghouse or other FMCSA compliance issues.

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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