The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) clearinghouse of commercial driver's license (CDL) holders' drug and alcohol violations went into effect on January 6, 2020.
Employers must register to access the data repository to fulfill compliance obligations. Employers of CDL drivers, can now register on the site and create a secure online user account. Employers with drivers covered by FMCSA regulations will be required to query the database for current and prospective drivers' drug and alcohol violations before permitting those employees to operate a commercial motor vehicle. Employers also must report drug and alcohol program violations through the site. The regulation requires that employers annually screen each of their drivers through the clearinghouse.
This new regulation comes from a law signed in 2012 intended to help reduce crashes, injuries and fatalities involving large trucks and buses by creating a way to identify and track commercial drivers with a history of violating drug and alcohol prohibitions.
Before the clearinghouse was created, regulated employers were required to check with a driver's prior employers to verify his or her drug and alcohol testing record. Drivers with violations are not eligible to drive a commercial motor vehicle until the employer confirms that the driver has successfully completed mandatory return-to-duty obligations.
The clearinghouse will enable employers to more easily identify drivers who commit a drug or alcohol program violation while working for one employer but who fail to subsequently inform another employer. Records of drug and alcohol program violations will remain in the clearinghouse for five years, or until the driver has completed the federally mandated return-to-duty process, whichever is later.
Registration is free, but there will be a charge, depending on the number of queries, to run records searches. Employee drivers are not required to immediately register for the clearinghouse but will need to register to respond to an employer's request for consent prior to a pre-employment check or other query. "Employers may want to encourage drivers to create an account, however, as doing so will streamline the process by which a new driver can be hired or returned to work following a report. As the database grows over time, it will become more effective. Unfortunately, employers must also continue to independently gather driver drug and alcohol program compliance records directly from prior employers until the clearinghouse has been operating for three years.
FMCSA regulations require employers to add language to their drug and alcohol testing policies to notify drivers and driver applicants that employers are now required to report any adverse drug and alcohol testing information to the clearinghouse.
This includes any positive drug-test results, any alcohol test results with a blood alcohol content greater than 0.04, refusals to test, and any other non-test violations of the FMCSA's drug and alcohol regulation. Employers will have to submit a report of a drug or alcohol program violation by the close of the third business day following the date on which the employer obtained the information.
In addition, employers will be required to report any "actual knowledge" violations along with a detailed description of the event, supporting evidence, and the names and contact information for any corroborating witnesses.
For example, supporting documentation will be required … from a supervisor who saw the driver engage in prohibited conduct or documenting a driver's admission of a regulatory violation. The employer must also ensure and certify that all of the information reported to the clearinghouse was also provided to the covered driver in question. This process is designed to ensure that covered drivers are able to exercise their right to dispute potentially inaccurate information.
FMSCA-regulated employers must initiate a database query of the clearinghouse as part of the hiring process for new drivers. This query must be run on every prospective driver before they are able to perform safety-sensitive functions. Employers must obtain the consent of the driver before running the check. Consents to limited queries can be evergreen, allowing the employer to continue to search the database as needed after the driver's initial check. If the query identifies a relevant report on a driver in the database, however, the driver must at that time and on an individual basis authorize the release of the full query report to the employer. Failing to authorize the release of these records to the querying employer will prevent the employer from using or continuing to use the driver.
In addition, employers will be required to run a search of the database at least once a year for all their current drivers. Employers have some flexibility as to the timing of the searches and should be wary of the potential disruptions that running queries on all drivers at once can create. For example, if an employer elects to run all covered drivers at once as part of its annual review, and the limited query reveals information necessitating a full query on certain drivers, the employer must then conduct a full query on each of those drivers within 24 hours. If the employer fails to conduct a full query within 24 hours—recognizing that the employer must obtain specific consent from the driver to do so within this time period—the employer cannot allow the covered driver to continue to perform any safety-sensitive function until the results of the full query confirm that the driver's clearinghouse record is clear.