By: Abigail Potter, Manager of Safety and Occupational Health Policy at the American Trucking Associations
On December 5, 2016, the Federal Motor Carrier Safety Administration (FMCSA) finalized a rule to create a drug and alcohol clearinghouse for commercial driver license holders (CDL).
The clearinghouse will act as a central repository for drivers’ positive test results, refusals to test and other such federal violations of the drug and alcohol testing regulations.
Once fully operational the clearinghouse will significantly improve safety and help expedite the hiring process for commercial drivers.
Since the mid-90’s, many trucking companies advocated for a clearinghouse to close a significant loophole in the hiring process.
Currently during the pre-employment screening process, employers are required to make inquiries about a driver-applicant’s DOT drug and alcohol history with all DOT-regulated employers that employed the driver within the previous three years.
This process requires individuals with drug and alcohol histories to work against their own self-interest during the hiring process.
With the use of a clearinghouse, employers will be able to reduce their reliance on applicants’ honesty in giving a full and complete employment history to verify their violation histories.
Starting in 2020, motor carrier employers, designated service agents, medical review officers (MRO) and substance abuse professionals (SAP) will be required to submit a variety of records to the Clearinghouse.
Motor carrier employers or their designated service agents will be responsible for reporting within three business days: alcohol confirmation tests with a concentration of 0.04 or higher; alcohol testing refusals; drug testing refusals that do not involve an MRO determination; all instances of actual knowledge of drug and alcohol use (i.e. observed use, admission to use, or a DUI traffic citation); negative return-to-duty tests; and successful completion of follow-up tests. MROs will be responsible for reporting verified positive, adulterated or substituted test results, and those results the MRO determines to be a refusal, within two business days.
Finally, SAPs will be required to report when they conduct an initial drug and/or alcohol assessment of an employee, and when an employee completes the return-to-duty process, within one business day.
In addition to submitting information, each motor carrier employer, or its designated service agent, will be required to query the clearinghouse before hiring a CDL driver applicant to verify that the driver is not in violation of any drug and alcohol prohibitions.
Employers will also be required to query the database annually for records relating to their existing driver workforce, but are not limited to one query per year.
Furthermore, motor carrier employers will still be required to request drug and alcohol testing histories from previous employers until the Clearinghouse has been in operation for at least three years.
After three years, employers will no longer be required to request drug and alcohol testing histories from previous employers and will be able to fulfil their requirement to retain a record of each query with a valid registration with the Clearinghouse system.
Finally, state licensing agencies will be required to obtain information from the Clearinghouse before issuing a new, renewed, or transferred CDL.
While FMCSA’s final rule lays out a strong blueprint for establishment of an effective drug and alcohol clearinghouse, there are still many questions that need to be answered about its implementation.
Here are three areas of concern that need to be addressed by FMCSA and the eventual third-party contractor for the Clearinghouse:
FMCSA has stated that it plans to collect a “reasonable fee” from entities required to query the Clearinghouse. However, FMCSA has yet to define exactly what is considered a “reasonable fee.” To reduce costs, FMCSA does plan to require subscription fees, batch processing of data, and pre-population of recurring data in the contract proposal to manage the clearinghouse. Many motor carrier employers are concerned that FMCSA will establish a fee structure similar to the Pre-Employment Screening Program (PSP).
- Driver Consent
FMCSA plans to require that all motor carrier employers and all CDL drivers register with the Clearinghouse to allow for a “seamless” process in granting consent. Motor carrier employers during the hiring process will be required to obtain written consent for the full pre-employment query and may obtain one general consent to conduct the annual limited query (not as detailed as a full query), for multiple years. All motor carrier employers will be required to submit driver consent directly to the Clearinghouse and the CDL driver will have to confirm that consent was granted through the online database.
- Voluntary Period to Submit Records
FMCSA has stated that starting January 6, 2020, all parties affected by the Clearinghouse will be required to submit certain drug and alcohol records and make queries to access records. Since FMCSA does not plan to require retroactive submission of drug and alcohol results prior to the implementation date, there are concerns that accessing the Clearinghouse during the first few months of implementation might not be a cost effective tool to motor carrier employers because very few records will have been submitted. A voluntary submission period of records prior to the requirement to query the Clearinghouse might support greater participation by motor carrier employers in the first year of operation.
FMCSA has made significant progress toward eliminating the significant loophole in the current DOT drug and alcohol testing program.
However, there are questions that still need to be answered about the details of implementation before the Clearinghouse is in effect.
These questions are tricky but once answered the Clearinghouse will be an effective tool for preventing drug users from getting behind the wheel.
2017 Transportation Spotlight Report
2017 Transportation Spotlight Report
2017 marks the 10-year anniversary of HireRight’s Employment Background Screening Benchmark Survey.
The American Trucking Associations prepared these materials for HireRight for informational purposes only. These materials are not intended to be comprehensive, and are not a substitute for, and should not be construed as, legal advice. The American Trucking Associations and HireRight do not warrant any statements in these materials. Employers should direct to their own experienced legal counsel questions involving their organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.