There has been much hype around the fact that a rule passed back in 2016 is finally coming into effect. Of course, I’m talking about the Commercial Driver’s License Drug and Alcohol Clearinghouse, commonly called the FMCSA Clearinghouse. This highly anticipated regulation will go into effect on January 6, 2020 and will be the biggest change to the drug testing rules and requirements in thirty (30) years.
The Clearinghouse is a secure online database that will give employers and other authorized users real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations. The Clearinghouse rule requires FMCSA-regulated Employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), Consortia/Third-Party Administrators (C/TPAs) and other service agents to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 Code of Federal Regulations, Parts 40 and 382, by current and prospective employees.
The Clearinghouse will enable employers to identify drivers who commit a drug and alcohol program violation while working for one employer but fail to subsequently inform another employer (as required by current regulations). Employers will be required to query the Clearinghouse for current and prospective employees’ drug and alcohol violations before permitting those employees to operate a CMV on public roads, and to annually query the Clearinghouse for each driver they currently employ. An act of Congress directed the Secretary of Transportation to establish the FMCSA Clearinghouse.
Registration opened on October 1, 2019. Beginning January 6, 2020, MROs will be required to report a verified positive, adulterated or substituted controlled substances test result to the Clearinghouse, as well as any refusals to test for controlled substances. These must be reported within two days of making the verification or determination. The MRO must report any changes of a verified drug test within one business day of making any changes to the reported results. Both drivers and employers are required to register with the Clearinghouse.
Employers who have DOT/FMCSA employees will need to register and pre-purchase query plans. These query plans are $1.25 per search or $24,500 for unlimited searches for one year (there are several plan options available between those two extremes). Employers will have to query all new hires and all current drivers on a yearly basis. All information must be entered directly on the FMCSA website and not via any other method. Only end user employers may purchase queries. If an FMCSA company would like a service agent to run queries for them, the purchased codes must be given to the service agent to be used.
As of January 6, 2020, authorized users will be required to complete the actions described in the Clearinghouse final rule. At this time, employers will be required to conduct both electronic queries and traditional manual inquiries with previous employers to meet the three-year time frame, required by FMCSA’s drug and alcohol use testing program, for checking CDL driver violation histories. Drivers may also view their own records for information recorded on or after January 6, 2020. After January 6, 2023, once three years of violation data are stored in the Clearinghouse, employers will no longer be required to request information from the driver’s previous FMCSA-regulated employers under 391.23(e) – an employer’s query of the Clearinghouse will satisfy that requirement.
The following information, if it exists, must be reported to the Clearinghouse by an employer: 1) An alcohol confirmation test result with an alcohol concentration of 0.04 or greater; 2) A CDL driver’s refusal to submit to a Department of Transportation (DOT) test for drug or alcohol use; 3) Actual knowledge of illicit alcohol or drug use while operating a CMV; 4) A negative Return to Duty (RTD) test result; and 5) The date the driver successfully completed all follow-up tests as ordered by the substance abuse professional (SAP).
Employers may designate a C/TPA or C/TPAs to conduct queries and/or report violations on their behalf. An owner operator (an employer that employs himself or herself as a driver, typically a single-driver operation) must designate their C/TPA(s) as part of their Clearinghouse registration process. The C/TPA must be registered in the Clearinghouse before an employer can select the C/TPA, and C/TPAs must be designated by the employer before reporting drug and alcohol program violations or querying the Clearinghouse on their behalf.
The following information will be required for MROs to report violations to the Clearinghouse: 1) Reason for the test; 2) Federal Drug Testing Chain of Custody Form (CCF) specimen ID number; 3) Driver’s name, date of birth, commercial driver’s license (CDL) number and state of issuance; 4) Employer’s name, address and USDOT number, if applicable; 5) Date of the test and date of the verified result; and 6) The test result.
There is no cost for a driver or owner operator to register. If a driver or owner operator does not pre-register for consent, it will need to be done via US Mail, which will add days or weeks to the pre-employment process. Once registered, CDL drivers can view their own record, provide consent to current or prospective employers to access details about any drug and alcohol program violations, and select a Substance Abuse Professional, if needed.
The Clearinghouse has been developed to identify drivers by their CDL numbers. Every time a user reports or queries the Clearinghouse the user must identify the driver by CDL number. In order to ensure users such as MROs have access to drivers’ CDL numbers, the FMCSA will start requiring that CDL numbers and states be used to identify drivers in Step 1C of the Federal Chain of Custody Form (CCF). Previously, employers and collection sites could use social security numbers or even randomly assigned employee IDs. However, now Part 382.123 explicitly states that the drivers’ CDL numbers must be used for FMCSA drug and alcohol tests. Employers should be aware of this new requirement and start alerting collection sites of this regulation.
I encourage you to register now, whether you are a driver or employer, and start doing your due diligence to get everything set up with this new system. You can find everything you need on their website (https://clearinghouse.fmcsa.dot.gov). If you have further questions or need any assistance, feel free to call me at NTA at (562) 279-0557. Don’t wait – get prepared now!