New DOT (FMCSA) Clearinghouse Regulations - What employers and drivers need to know!
Employers across the country are gearing up for some of the most significant changes in the Department of Transportation (DOT) regulations recent in years. The Federal Motor Carriers Safety Administration (FMCSA) Clearinghouse rule, also known as the Commercial Driver’s License Drug and Alcohol Clearinghouse (“Clearinghouse”) - 49 CFR Part 382, subpart G, will go into effect on January 6, 2020.
Officials with the Federal Motor Carrier Safety Administration (FMCSA) promote that the Clearinghouse will improve highway safety by helping employers, the FMCSA, State Driver Licensing Agencies, and State law enforcement to quickly and efficiently identify drivers who are not legally permitted to operate commercial motor vehicles (CMVs) due to drug and alcohol program violations. This new, secure online database will provide access to real-time information, ensuring that drivers committing these violations complete the necessary steps before getting back behind the wheel or performing any other safety-sensitive function.
The Role of the Clearinghouse
The primary role of the new Clearinghouse is increased safety. The implementation of the Clearinghouse database will, over time, close a dangerous loophole that has been exploited since the 1990s. In compliance with Part 382.413 of the current DOT regulations, employers are required to utilize a manual and mainly paper-driven process to inquire with a driver’s previous employer(s) over the last three years. Past employers would be contacted, commonly via fax, and would be required to provide any information regarding prior drug and alcohol testing violations. These employment verifications typically involved precious time, effort, record retention & retrieval for past employers, and good memory and unwavering honesty from the drivers, to function as an efficient safety check.
Previously, a driver could have a drug and alcohol testing violation with “trucking company A,” be terminated, and go apply at “trucking company B.” When “trucking company B” has the prospective driver provide their past employer information, the driver conveniently neglects to disclose that they ever worked for “trucking company A.” Since there is currently no central repository for this type of information, drivers could avoid the consequences of failing a drug or alcohol test by merely failing to disclose the information of their previous employer(s), leaving a prospective employer entirely in the dark on past violations.
The implementation of the Clearinghouse’s secure, online database will now provide employers and other authorized users real-time information about commercial driver’s license (CDL) and commercial learners’ permit (CLP) holders’ drug and alcohol program violation, thus improving safety on our Nations roadways.
The Clearinghouse’s Impact
Referencing the FMCSA’s Clearinghouse FactSheet, these new regulations will affect “all CDL drivers who operate CMVs on public roads, and their employers and service agents.”
This includes, but not limited to:
- Interstate and intrastate motor carriers, including passenger carriers
- School bus drivers
- Construction equipment operators
- Limousine drivers
- Municipal vehicle drivers (e.g., waste management vehicles)
- Federal and state agencies that employ drivers subject to FMCSA drug and alcohol use testing regulations (e.g., Department of Defense, public transit)
Information that will be reported and stored in the FMCSA Clearinghouse includes:
- Verified positive, adulterated, or substituted controlled substance test results
- Reports of refusal to test (including no-shows)
- Verified positive alcohol test results above .04
- DUI citations while operating a Commercial Motor Vehicle
- DUI conviction while operating a Commercial Motor Vehicle
- Reports of actual knowledge of illicit alcohol or drug use
- Negative return-to-duty test results
- Records of compliance with follow-up testing requirements
Employers of drivers operating CMVs that require a commercial driver’s license (CDL) or commercial driver’s permit (CLP) are required to implement and conduct a drug and alcohol use testing program that complies with FMCSA and DOT requirements. Employers will be required to query the Clearinghouse and request drug and alcohol testing histories from previous employers (going back three years) until January 6, 2023. The Clearinghouse query will then replace the need for an employer to request employment history, going forward.
The FMCSA Clearinghouse brings the following new requirements for employers:
Registration - FMCSA regulated employers must register their company with the Clearinghouse, starting right now. The database will pull your company information from other FMCSA systems using your USDOT Number. Registration is free.
Designate your C/TPA - Once registration is complete employers, that work with one or more consortia/third-party administrator(s) (C/TPAs), will be required to designate them in the Clearinghouse before they can access the Clearinghouse database on the employer's behalf. Employers will also be able to invite “assistants” or other employees who will access the Clearinghouse on the company’s behalf, inviting them to register as part of the company or organization.
Pre-Employment Screening - Employers will be required to run detailed database queries to make sure applicants they are planning to hire for regulated positions do not have outstanding positive test results.
Annual Screening - Employers will be required to run limited database queries for current drivers at least once a year to determine whether any information exists in the Clearinghouse about those employees. If the limited query returns any results, a detailed database query will then be required.
Employers must also:
- Purchase a database Query Plan from the FMCSA that best fits your company’s needs.
- Be sure CDL information (number & state of origin) is in a driver file and easily accessible.
- Implement changes to your hiring process that includes consent from drivers to do an initial detailed query and include the details for which an employer will report results to the Clearinghouse.
- Report drug and alcohol testing violations to the Clearinghouse, including alcohol test results with a concentration of .04 or greater, refusals to take a drug or alcohol test, and any actual knowledge of a violation. Employers will also report negative return-to-duty (RTD) test results and the successful completion of a driver’s follow-up testing plan. This information must be reported by the close of the third business day after the employer is informed.
- Train your Designated Employer Representative (DER) and safety officers on the required documentation for reporting “actual knowledge” of drugs or alcohol use while operating a Commercial Motor Vehicle (CMV)
An owner-operator or employer who employs themselves as a driver must comply with FMCSA drug and alcohol requirements that apply to both employers and drivers. Owner-operators are required to work with at least one consortia/third-party administrator (C/TPA). Owner-operators are required to designate their C/TPA(s) in the Clearinghouse before they can access the Clearinghouse database on their behalf. Owner-operators will also be able to invite “assistants” or other employees who will access the Clearinghouse on the company’s behalf, inviting them to register as part of the company.
Employers will also be required to revise their policies to reflect these new regulations:
Part 382 – Controlled substances And Alcohol Use and Testing
Subpart F – Alcohol Misuse and Controlled Substances Use Information, Training, and Referral
§382.601: Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances.
(12) The requirement that the following personal information collected and maintained under this part shall be reported to the Clearinghouse:
- (i) A 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 subpart C of this part;
- (iv) An employer's report of actual knowledge, as defined at §382.107:
- (A) On duty alcohol use pursuant to §382.205;
- (B) Pre-duty alcohol use pursuant to §382.207;
- (C) Alcohol use following an accident pursuant to §382.209; and
- (D) Controlled substance use pursuant to §382.213;
- (v) A substance abuse professional (SAP as defined in §40.3 of this title) 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.
- (c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer's authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.
- (d) Certificate of receipt. Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in this section. Each employer shall maintain the signed certificate and may provide a copy of the certificate to the driver.
Any driver who holds a CDL (or CLP) and meets the DOT requirements (49 CFR Part 383), and the FMCSA Drug and Alcohol Testing Program (Part 382) must comply with the new Clearinghouse requirements. Drug and alcohol testing regulations are designed to help keep our roadways safe. Failure to consent to a required test will result in a driver being prohibited from performing a safety-sensitive function, such as operating a CMV.
Drivers should be prepared to provide their CDL numbers when testing. Employers will require you to give consent whenever there is a need to run a full database query. Refusing to comply with consent will prohibit you from performing any FMCSA regulated safety-sensitive functions with that employer. Drivers should also:
Get Registered – While immediate Clearinghouse registration is not required for all drivers, they will need to be registered to view their own Clearinghouse record, or to provide electronic consent for a current or prospective employer to query the database. Registration is free.
Review Your Record – Once registered, drivers can review or initiate the process to revise or remove incorrectly reported information.
Provide Consent – Provide electronic consent for a current or prospective employer to conduct a full query (including a pre-employment query) in the Clearinghouse. Failing to consent to a query will result in a driver being prohibited from performing safety-sensitive functions for the employer conducting the query.
An owner-operator or employer who employs themselves as a driver must comply with FMCSA drug and alcohol requirements that apply to both employers and drivers.
As you work to implement these new requirements, get registered for the Clearinghouse, ensure your drivers and service providers understand these new requirements; here are some noteworthy dates to be aware of:
December 5, 2016
Clearinghouse Final Rule Published
The Clearinghouse final rule implemented the Congressional mandate to establish a drug and alcohol clearinghouse and identified the roles and responsibilities of those who will be required to use the Clearinghouse.
Users can establish an account that will allow access to the Clearinghouse once it becomes operational on January 6, 2020.
Query Plans Available for Purchase
Registered employers can log into the Clearinghouse to purchase their query plan. Query plans may only be purchased from the FMCSA Clearinghouse by registered employers.
January 6, 2020
Mandatory use of the Clearinghouse goes into effect. Employers must report certain drug and alcohol program violations and can conduct electronic queries in the Clearinghouse. Manual inquiries with previous employers are still required to cover the preceding three years.
January 6, 2023
Clearinghouse Three-Year Mark
Employers must query only the Clearinghouse to satisfy the employer requirement to identify prospective drivers who have committed drug and alcohol program violations.
There are also new Clearinghouse requirements for Consortiums/Third-Party Administrators (c/TPAs), Medical Review Officers (MROs) & Substance Abuse Professionals (SAPs). The time is now to get familiar with the new regulations, get registered with the Clearinghouse database, and plan the implementation requirements with your service provider(s) to ensure you ready to go come January 6, 2020. The FMCSA’s Clearinghouse webpage provides information about the program, including a fact sheet, user roles card, guidance on getting registered, information on query plans, a list of frequently asked questions, and a place where those interested can sign up to receive email updates about the Clearinghouse.