Truck and bus employers regulated by the Federal Motor Carrier Safety Administration (FMCSA) are now required to supply the agency with information about violations of federal drug and alcohol testing rules by employees for inclusion in a new FMCSA Drug & Alcohol Clearinghouse, an electronic database that will become operational in January 2020.
Medical review officers (MROs), substance abuse professionals, consortia/third-party administrators and other service agents also are required to report these kinds of violations to the clearinghouse by current and prospective employees who failed pre-employment drug tests.
The agency describes the clearinghouse as “a secure online database that will allow FMCSA, CMV employers, state driver licensing agencies and law enforcement officials to identify—in real-time—CDL drivers who have violated federal drug and alcohol testing program requirements, and thereby improve safety on our nation’s roads.”
“As this congressional mandate is enacted, FMCSA’s goal is to ensure drivers, employers and everyone who will be using the clearinghouse are registered as efficiently and effectively as possible,” says agency administrator Raymond P. Martinez. “FMCSA is here to be helpful during this implementation, and we strongly encourage all CMV stakeholders to get registered in the clearinghouse now.”
As of Jan. 6, 2020, when the clearinghouse becomes fully operational, all FMCSA-regulated employers must be prepared to do the following:
Queries of New Hires/Transfers. Employers must query the clearinghouse before allowing a newly-hired commercial motor vehicle driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers must sign a consent form allowing the employer to do so.
Annual Queries of Current Employees. Employers must query the clearinghouse at least once per year for each driver they currently employ. Drivers must sign a consent form allowing the employer to do so. The employer must maintain records of all queries and information obtained in response to the query, for a period of three years. (As of Jan. 6, 2023, an employer who maintains a valid registration fulfills this requirement).
Reporting of Drug and Alcohol Program Violations. Employers must report drivers’ drug and alcohol program violations to the clearinghouse within three business days after the employer learns of the information.
Employers must prohibit drivers who have violated FMCSA’s drug and alcohol program regulations from performing safety-sensitive duties unless the driver has complied with the return-to-duty process set forth in agency regulations.
Change Your Policies
Revise Drug and Alcohol Testing Policies. In addition to registering with the clearinghouse, FMCSA regulations require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver applicants that the following information will be reported to the clearinghouse:
● A verified positive, adulterated, or substituted drug test result.
● An alcohol confirmation test with a concentration of 0.04 or higher.
● A refusal to submit to a drug or alcohol test.
● An employer’s report of actual knowledge, as defined in the regulations.
● On-duty alcohol use.
● Pre-duty alcohol use
● Alcohol use following an accident.
● Other drug use as defined in the regulations.
● A substance abuse professional’s report of the successful completion of the return-to-duty process.
● A negative return-to-duty test.
● An employer’s report of completion of follow-up testing.
In addition, after Jan. 6 state driver licensing agencies will be required to query the FMCSA Clearinghouse whenever a commercial driver’s license (CDL) is issued, renewed, transferred, or upgraded. Under the regulations, the clearinghouse registration is valid for five years, unless it has been cancelled or revoked.
Employers still will be required to obtain the other information required by the safety performance history investigation regulations (such as accident history) directly from the driver-applicants’ previous Department of Transportation-regulated employers because that information is not reported to the clearinghouse.
Keep in mind that employers who do not comply with the FMCSA Clearinghouse requirements will be subject to the civil and/or criminal penalties set forth in the rules, with civil penalties not to exceed $2,500 for each offense, warns attorney Kathryn J. Russo of the law firm of Jackson Lewis.
Employers (and their service agents) should log on to the FMCSA Clearinghouse to register with it and so that they can become familiar with the site, she notes. The site also has information about how employers of CDL drivers can now review details about how to purchase a query plan that will enable them to conduct queries starting Jan. 6.
Bus driver employers, trucking companies and truck owner-operators will have two pricing options for gaining access to the clearinghouse to check on drivers for drug or alcohol violations. They have a choice of paying either a flat per-query rate of $1.25 each for both limited and full queries, or one annual payment $24,500 for an unlimited number of queries.
The $1.25 plan can be customized into 19 different bundles ranging from 1 to 7,500 different queries depending on the size of the company, with bundled pricing ranging from $1.25 to $9,375. The agency recommends choosing a query bundle large enough to cover the number of drivers currently employed. Companies also can purchase additional plans as needed.
“All employers of CDL drivers must purchase a query plan in the clearinghouse,” FMCSA said when it announced the fee schedule earlier this year. “This query plan enables employers, and their consortia/third-party administrators, to conduct queries of driver clearinghouse records.”
Queries are divided into two different categories: limited or full. Limited queries search for the presence of information in a driver’s clearinghouse record. Full queries are intended to reveal detailed information about drug or alcohol violations.
FMCSA stresses that only employers can purchase a query plan. Third-party administrators cannot purchase queries on behalf of employers. FMCSA also explained that all owner-operators are required to work with a third party to manage their drug and alcohol testing programs for them.