Effective January 6, 2020, the U.S. Department of Transportation (DOT) has formally begun implementation of the federal Drug and Alcohol Clearinghouse (“Clearinghouse”). The purpose of the Clearinghouse is to provide a secure online database for employers, the Federal Motor Carrier Safety Administration (FMCSA), State Driver Licensing Agencies and State law enforcement personnel to submit and review real-time information about a covered driver’s drug and alcohol program violations. The Clearinghouse will contain records of violations of drug and alcohol prohibitions under 49 C.F.R. § 382, Subpart B, including positive drug or alcohol test results and test refusals. As the Clearinghouse program is further developed in conformity with the regulations, employers are advised by the DOT to periodically consult the FAQs on the FMCSA website. It is important to note that the new rule does not change any of the existing requirements for DOT procedures relating to transportation workplace drug and alcohol testing.
The following summarizes some of the most important changes that employers need to be aware of to remain compliant with the Clearinghouse, as follows:
Registration Requirements: Employers, drivers, medical review officers (MROs), substance abuse professionals (SAPs) and consortia/third-party administrators (C/TPAs) must register in the Clearinghouse at https://clearinghouse.fmcsa.dot.gov/Register.
- Drivers will not be required to immediately register for the Clearinghouse; however, drivers will need to register to provide consent for full queries and to review the information in the Clearinghouse.
- Employers must register in order to report information and conduct the required inquiries. Additionally, employers may purchase “query plans” on the FMCSA website.
Reporting Requirements: Covered employers will be required to track and promptly report certain driver information directly to the Clearinghouse, including positive confirmation tests, refusals to test, actual knowledge of driver drug or alcohol use before duty, while on duty or soon after an accident in violation of existing regulations, negative return-to-duty tests, and confirmation that a driver has completed all follow-up tests directed by a SAP. Employers will also be required to report information about drivers who: (1) test positive for drugs or alcohol, (2) refuse to participate in a drug or alcohol test, or (3) undergo the drug and alcohol rehabilitation process that is required for drivers to return to duty.
Query Requirements: When an employer hires a new covered driver, a covered employer must conduct a full query of the Clearinghouse related to the driver’s compliance history. The Clearinghouse will provide a centralized location to query driver information and report drug and alcohol program violations incurred by both current and prospective covered drivers. Under the new rules, employers must use the Clearinghouse to:
- Search the system for information regarding current or prospective drivers who have unresolved violations of federal drug and alcohol testing regulations that prevent a driver from operating a commercial motor vehicle;
- Conduct a full query of the Clearinghouse as part of each pre-employment driver investigation process;
- Conduct limited queries at least annually for every driver employed;
- Request electronic consent from each driver for a full query, including pre-employment queries;
- Report drug and alcohol program violations; and
- Record negative return-to-duty (RTD) test results and the date of successful completion of a follow-up testing plan for any driver employed with unresolved drug and alcohol program violations.
Additionally, employers must confirm that all reported incidents are resolved before permitting a driver to conduct safety-sensitive functions.
Consent Requirements: All drivers will be required to consent to employers performing required queries, and drivers will be prohibited from performing any safety-sensitive function, if a driver refuses the required consent. Drivers will need to provide electronic consent using the Clearinghouse for full queries. Limited queries will require written consent and a single consent form may be used for the annual limited queries.
Employers will be required to investigate a driver’s testing compliance history, during the hiring process, by contacting each of the employee’s DOT-regulated employers during the preceding three (3) years. After the Clearinghouse has been in operation for three (3) years, i.e. on or about January 6, 2023, this contact requirement will terminate.
To ensure compliance with the new regulations, employers are encouraged to train employees involved in obtaining the DOT drug and alcohol background checks to use the Clearinghouse queries, set up a process for conducting the dual inquires, e.g. full and limited, set calendar reminders for conducting annual Clearinghouse inquires on existing drivers, as well as, training designated employees on conducting inquiries, including driver authorization, record retention, and what actions are required when a violation is discovered.