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Clearinghouse Rules Effective January 6, 2020. ARE YOU READY??

Register with the Clearinghouse Employers (and their service agents) should log on to the FMCSA Clearinghouse to register with the Clearinghouse and become familiar with the site. See: https://clearinghouse.fmcsa.dot.gov/. Clearinghouse registration is valid for five years, unless cancelled or revoked.

Revise Drug and Alcohol Testing Policy In addition, 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. Clients that have had policies developed by Figment Group will receive an Addendum to distribute to current CDL drivers and add to the current policy for new CDL drivers.

  • 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 at 49 CFR § 382.107;
  • On duty alcohol use pursuant to 49 CFR § 382.205;
  • Pre-duty alcohol use pursuant to 49 CFR § 382.207;
  • Alcohol use following an accident pursuant to 49 CFR § 382.209;
  • Drug use pursuant to 49 CFR § 382.213;
  • A SAP’s report of the successful completion of the return-to-duty process;
  • A negative return-to-duty test; and,
  • An employer’s report of completion of follow-up testing.

January 6, 2020

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 January 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 (listed in the bullet points above) 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 complies with the return-to-duty process set forth at 49 CFR Part 40, Subpart O (requiring SAP evaluation, possible treatment, return-to-duty testing and follow-up testing).

January 6, 2023

Safety Performance History Investigations In addition to the items listed above, employers also will be required to conduct the drug and alcohol testing portion of the safety performance history investigation of driver-applicants through the Clearinghouse. Employers still will be required to obtain the other information required by the safety performance history investigation regulations (e.g., accident history) directly from the driver-applicants’ previous DOT-regulated employers, because that information is not reported to the Clearinghouse.

Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense). 

PART 1: Commercial Driver’s License Drug and Alcohol Clearinghouse

What is the Clearinghouse? The Clearinghouse is a secure online database that will give employers, the Federal Motor Carrier Safety Administration (FMCSA), State Driver Licensing Agencies (SDLAs), and State law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations.

What is the main purpose of the Clearinghouse? One of the main purposes of the Clearinghouse is to ensure that drivers who commit a drug or alcohol violation while working for another employer, or who attempt to find work with another employer; do not perform safety-sensitive functions until completing the return-to-duty process.  Drug and alcohol violation records maintained in the Clearinghouse will “follow” the driver regardless of how many times he or she changes employers, seeks employment or applies for a CDL in a different State.

What records will the Clearinghouse contain? The Clearinghouse will contain records of violations of drug and alcohol prohibitions in 49 CFR Part 382, Subpart B, including positive drug or alcohol test results and test refusals. When a driver completes the return-to-duty (RTD) process and follow-up testing plan, this information will also be recorded in the Clearinghouse. Additionally, employer’s actual knowledge of illegal drug use or alcohol use on the job and also SAP reports of the successful completion of the return-to-duty process will be maintained and stored in the Clearinghouse.

The Clearinghouse will contain only violations that occurred on or after January 6, 2020. If a driver’s violation occurred prior to January 6, 2020, and is in the return-to-duty (RTD) process when the Clearinghouse is implemented, the violation and any related RTD activity will not be entered into the Clearinghouse.

How will the CDL driver be identified in the Clearinghouse? For over 20 years, SSN # or Employee ID have been used to identify a driver for a drug or alcohol test. This all changes now to CDL number (Driver’s License number) and State of issue. This will present a challenge as currently the custody and control form for drug testing and the breath alcohol testing form have a designated field to capture the SSN # or Employer ID. Currently there is no field to capture the State of issue and driver’s license number.

Who will be authorized to access the Clearinghouse? To access the Clearinghouse once it is operational, a user will be required to request access from the Federal Motor Carrier Safety Administration (FMCSA) by registering for the Clearinghouse. Authorized users include:

  • CDL drivers
  • Employers – this includes motor carriers and other employers of drivers operating commercial motor vehicles (CMVs) that require a commercial driver’s license (CDL) or commercial learner’s permit (CLP)
  • Consortia/third-party administrators (C/TPAs)
  • Medical review officers (MROs)
  • Substance abuse professionals (SAPs)
  • Enforcement personnel

PART 2:  Users of the Commercial Driver’s License Drug and Alcohol Clearinghouse

How will the MRO be required to use the Clearinghouse? The medical review officers (MRO) will report positive drug test results and MRO determined refusals to test.

How will Employers be required to use the Clearinghouse?  The employer must use the Clearinghouse to:

  • 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 they employ.
  • Request electronic consent from the driver for a full query, including pre-employment queries.
  • Report drug and alcohol program violations such as employer determined refusals, positive alcohol test results and actual knowledge of drug or alcohol use as defined in 49 CFR Part 382.107. Employers are required to report a drug and alcohol program violation by the close of the third business day following the date on which the employer obtained the information.  If the timeframe has passed the employer must still report the drug and alcohol program violation. However, the Clearinghouse will capture the date the violation was reported. This information may be reviewed during an investigation of the employer’s operations and compliance with the Federal Motor Carrier Safety Regulations.
  • Record the negative return-to-duty (RTD) test results and the date of successful completion of a follow-up testing plan for any driver they employ with unresolved drug and alcohol program violations.

Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense).  Employers who do not comply with the FMCSA requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense). The Drug & Alcohol Clearinghouse was created by an act of Congress requiring DOT FMCSA to create the Clearinghouse Online Database.

No employer may permit a driver to perform a safety-sensitive function if the driver refuses to grant the consent required by paragraphs (a) and (b) of 382.703.

How will the Owner-operator be required to use the Clearinghouse? An owner-operator (an employer who employs himself or herself as a CDL driver) is subject to the requirements pertaining to employers as well as those pertaining to drivers. Under the Clearinghouse final rule, an employer who employs himself or herself as a CDL driver must designate a consortium/third-party administrator (C/TPA) to comply with the employer’s Clearinghouse reporting requirements (§ 382.705(b)(6)).

How will the Driver use the Clearinghouse? Once a driver has registered in the Clearinghouse, he or she will be able to access his or her Clearinghouse record electronically, at no cost. This record would include any violation information available in the Clearinghouse, along with the status of their return-to-duty (RTD) process, if applicable.

How will Substance Abuse Professionals (SAPs) be required to use the Clearinghouse?  SAPs will use the Clearinghouse to report specific information about a CDL driver’s return-to-duty (RTD) activities. This information includes the date of completion of the initial assessment, and the date the SAP determines that the driver is eligible for RTD testing.

Will the Consortium/Third Party Administrator use the Clearinghouse? Employers may designate a C/TPA(s) who can report violations and perform queries on their behalf. An owner-operator is an employer that employs himself or herself as a CDL driver and must designate the C/TPA in the Clearinghouse.

How will State Driving License Agencies (SDLA) be required to use the Clearinghouse? As of January 6, 2020, SDLAs will be able to query the Clearinghouse prior to completing licensing transactions, such as the issuance, renewal, transfer, and upgrade of a commercial driver’s license (CDL).

PART 3:  Queries & Consents Through the Commercial Driver’s License Drug and Alcohol Clearinghouse

An employer must conduct a pre-employment query for a prospective employee in the Clearinghouse prior to hiring the employee for a position requiring him or her to perform safety-sensitive functions, such as operating a commercial motor vehicle (CMV). The employer must also query the Clearinghouse annually for all currently employed CDL drivers. Before the employer may access information in the driver’s record, the driver must submit electronic consent through the Clearinghouse.  Granting employer access.

On January 6, 2023, once three years of violation data is stored in the Clearinghouse, prospective employers will no longer be required to conduct manual inquiries with a CDL driver’s previous employers; the prospective employer’s query of the Clearinghouse will satisfy that requirement. However, until then a prospective employer will be required to conduct both electronic queries in the Clearinghouse and manual inquiries with previous employers to meet the three-year timeframe for pre-employment driver investigations as required per § 391.23(e).

If a prospective employee was subject to drug and alcohol testing by a Department of Transportation (DOT) agency other than the Federal Motor Carrier Safety Administration (FMCSA), prospective employers must continue to request drug and alcohol violation information from those DOT-regulated employers, since that information will not be reported to the Clearinghouse.

A limited query allows an employer to determine if an individual driver’s Clearinghouse record has any information about resolved or unresolved drug and alcohol program violations, but does not release any specific violation information contained in the driver’s Clearinghouse record. For a limited query, a general consent is required. This will be obtained outside the Clearinghouse. Employers may obtain a multi-year general consent from the driver for limited queries. A sample limited consent form will be posted by the Federal Motor Carrier Safety Administration (FMCSA) on the Clearinghouse website for employers’ reference. However, the limited consent request must specify the timeframe the driver is providing consent for.

A full query allows the employer to see detailed information about any drug and alcohol program violations in a driver’s Clearinghouse record. An employer must obtain the driver’s electronic consent in the Clearinghouse prior to the release of detailed violation information during the full query.

Employees must be queried at least once within a 365-day period based on their hire date, or another 12-month period determined by the employer, as long as the requirements of § 382.701(b) are met.

Employers will be charged a fee to conduct limited and full queries within the Clearinghouse only. There will not be a fee for registration or other Clearinghouse activities.

The Clearinghouse will support a feature allowing employers to upload a file containing multiple drivers to be queried; these queries will be conducted in batches. A template of the file to be used for this process will be made available on the Clearinghouse website.

Download the Clearinghouse Query Plan Fact Sheet: https://clearinghouse.fmcsa.dot.gov/Documents/Query-Plan-Factsheet.pdf

PART 4:  Driver Data in the Commercial Driver’s License Drug and Alcohol Clearinghouse

The Clearinghouse is a secure online database that will give employers, the Federal Motor Carrier Safety Administration (FMCSA), State Driver Licensing Agencies (SDLAs), and State law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations. Records of violations of drug and alcohol prohibitions in 49 CFR Part 382, Subpart B, including positive drug or alcohol test results and test refusals will be included. When a driver completes the return-to-duty (RTD) process and follow-up testing plan, this information will also be recorded in the Clearinghouse.

Once a driver has registered in the Clearinghouse, he or she will be able to access his or her Clearinghouse record electronically, at no cost. This record would include any violation information available in the Clearinghouse, along with the status of their return-to-duty (RTD) process, if applicable. Registration is scheduled to open in the fall of 2019.

Drivers will be able to:

  • View their own driver record electronically.
  • Provide consent to release detailed violation information to a current or prospective employer.
  • Identify a substance abuse professional (SAP) so the SAP may enter specific information regarding the driver’s return-to-duty (RTD) activities.

A driver will be required to enter their CDL information during their Clearinghouse registration. This will allow them to view any violation or return-to-duty (RTD) information associated with their CDL. The driver does not need to be registered in the Clearinghouse for a violation to be added to their Clearinghouse record. Additionally, the Clearinghouse will identify drivers who move frequently and obtain CDLs in different States and link those CDLs, in order to maintain complete and accurate information on such drivers.

The Clearinghouse is subject to certain provisions of the Privacy Act. For example, the Agency will verify the driver’s consent for the release of information prior to allowing an employer to access the driver’s Clearinghouse record. The Federal Motor Carrier Safety Administration (FMCSA) takes the protection of personal information very seriously. The Clearinghouse will meet all relevant Federal security standards and FMCSA will verify the effectiveness of the security protections on a regular basis.

  • Clearinghouse information will not be available to the public; only authorized users will be able to register and access the Clearinghouse for designated purposes.
  • The Clearinghouse will require authentication, via a login.gov username and password, to access records. Login.gov, a shared service which offers secure online access to participating government systems, also requires the completion of a user verification process to ensure the proper person is using those credentials.
  • Drivers registered in the Clearinghouse will be able to access their Clearinghouse records at any time, and at no cost to them. Drivers will only be able to access their own information, not information about other drivers.
  • FMCSA will only share detailed drug and alcohol violation information with a prospective or current employer, and/or their designated consortium/third-party administrator (C/TPA), when an employer or designated C/TPA has requested and received specific consent from the driver. Drivers will be able to see the information that would be released to an employer before consenting to the release.
  • Driver information will only be used by FMCSA and other enforcement agencies as required to enforce drug and alcohol testing regulations.

The Clearinghouse will notify the driver using the method indicated during the driver’s Clearinghouse registration—either mail or email—any time information about the driver is added, revised, or removed. If the driver has not yet registered for the Clearinghouse, these notifications will be sent by mail using the address associated with the driver’s commercial driver’s license (CDL). es. The final rule provides a petition process for drivers to request corrections to their Clearinghouse record (§ 382.717).

Drivers may challenge only the accuracy of information reported, not the accuracy or validity of test results or refusals.

Employers and consortia/third-party administrators (C/TPAs) are required to provide specific documentation to support the reporting of actual knowledge or a refusal to test (§§ 382.705(b)(3) and (4)). The Federal Motor Carrier Safety Administration (FMCSA) will remove information from the driver’s Clearinghouse record that is determined to be false. An employer or service agent who knowingly submits false information to the Clearinghouse may be subject to criminal and/or civil penalties.

Driver violation records will be available in the Clearinghouse for five years from the date of the violation determination, or until the violation is resolved through the successful completion of the return-to-duty (RTD) process and follow-up testing plan, whichever is later.

Driver violation and return-to-duty (RTD) information will be recorded in the Clearinghouse by several means noted below.  When a violation is entered, the Clearinghouse associates it with a driver’s commercial driver’s license (CDL) information. This will be recorded even if the driver has not registered for the Clearinghouse. When an employer queries a driver’s information in the Clearinghouse (with the appropriate consent), they will enter the driver’s CDL information to verify if any violations are associated with that driver’s CDL.

  • Employers must report the following information to the Clearinghouse:
  • An alcohol confirmation test result with an alcohol concentration of 0.04 or greater;
  • A CDL driver’s refusal to submit to a Department of Transportation (DOT) test for drug or alcohol use;
  • Actual knowledge, as defined in § 382.107;
  • The negative RTD test results;
  • The date the driver successfully completed all follow-up tests as ordered by the substance abuse professional (SAP).

Medical review officers (MROs) will enter verified positive, adulterated, or substituted controlled substances test results; or Refusal-to-test determination

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