The federal Drug and Alcohol Clearinghouse is finally rolling out in January 2020. This electronic database that will track commercial driver’s license holders who have tested positive for prohibited drug or alcohol use, as well as refusals to take required drug tests, and other drug and alcohol violations. In addition, when a driver who has been found to be in violation completes the required return-to-duty process, this information will also be recorded in the clearinghouse.
The clearinghouse has long been sought as a way to keep commercial drivers who have violated federal drug and alcohol rules from lying about those results and simply getting a job with another motor carrier. Here’s what trucking companies need to know:
1. The Clearinghouse Goes into Effect in January 2020
Registration for motor carriers, drivers and other users is expected to open up in October. When registering, you must use your U.S. DOT number, not your Employee Identification Number (EIN). You must provide list of authorized users, and those must be re-authorized at least annually.
Effective Jan. 6, 2020, the rule requires employers and their service agents to populate the clearinghouse with:
- Their employees' DOT drug and alcohol violations under Part 382 of the Federal Motor Carrier Safety Regulations, and
- Verification of a CDL driver's completed steps in the DOT return-to-duty process.
At the same time, employers will have to begin querying the clearinghouse for required information for driver hiring and annual requirements.
The database will contain violation information that occurs on or after Jan. 6, 2020. So even if a violation occurs on Jan. 5 and a driver is disqualified, that doesn’t go into the clearinghouse, notes David Osiecki, President, Scopelitis Transportation and Consulting.
Those required to register for and use the clearinghouse include most commercial drivers, their employers, consortia/third-party administrators used by carriers, medical review officers, substance abuse professionals, and state driver licensing agencies. The FMCSA recently proposed a three-year delay for state licensing agencies, but everyone else is expected to go forward with implementation on Jan. 6.
2. What Data is Submitted to the Clearinghouse
Motor carriers must report violations of the DOT Part 382 drug-testing regulations, including positive tests, as well as refusals to take drug or alcohol tests. They also must report of “actual knowledge” violations, negative return-to-duty test results, and completion of follow up testing/plans/programs.
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.
The only information allowed to be added to the clearinghouse is DOT drug or alcohol tests. Additional tests, such as hair testing that some fleets are conducting pre-employment, may not be put into the clearinghouse.
Records will remain in the clearinghouse until return-to-duty is complete and five years have passed since the violation. (After that, they won’t be in the database, but FMSCA will keep them archived.) Similarly, a fleet (or your third-party service agent) must keep records for a minimum of five years.
3. Understand the Two Types of Clearinghouse Queries
There are two types of queries motor carriers must make: full and limited.
Full queries must be done at the pre-employment stage. The information returned by the clearinghouse will show any violation of the drug-testing regulations in Part 382, as well as return-to-duty status once a driver has completed a treatment program following a violation.
But before the carrier can get the information, the driver has to log into the clearinghouse and give his or her consent – every time there’s a full query request for his or her records.
“The industry has asked for this database for a lot of years to close this loophole, but here’s an aspect that could create some real operational challenges, or at least slow down the hiring process,” said Osiecki. “Let’s face it, some drivers will forget their log-in credentials – we’ve all done that – and it’s going to hang up the hiring process.”
A limited query must be done at least once a year on each of a carrier’s drivers. It essentially is simply asking if there is a record of this driver in the database. If there is, then the carrier must convert that into a full query to find out what that information is (including getting the driver’s permission.)
Driver consent is also required for limited queries, but not for every single one like with full queries. Carriers can add that to pre-employment consent paperwork that’s already asking for consent to check things like their criminal records and motor vehicle records.
For the first three years after the clearinghouse goes into effect, motor carriers will still be required to check with a driver’s previous employers to get their drug-testing information for the past three years.
In addition, Osiecki notes, motor carriers need to update their drug- and alcohol-testing policies to include the clearinghouse requirements – it’s part of the regulations.
4. Fleets Can Use Third-Party Services
Employers are allowed to authorize service agents to report violations and to conduct queries of the clearinghouse on their behalf. Employers have to register in the clearinghouse first. Service agent authorizations will be required as part of an employer’s registration process. Designated service agents must register before accessing or reporting information to the clearinghouse.
If you change service agents during the year, the carrier has only 10 days to update that in the clearinghouse.
5. How Much Clearinghouse Queries Cost
The “query bundle” an employer purchases from FMCSA will depend on the number of queries that need to be conducted. The flat per-query rate is $1.25, for both limited and full queries.
There are customized “bundles” available to help fit business requirements. Purchased queries never expire, and additional query plans may be purchased as needed.
Osiecki notes that it must be the motor carrier who buys the query plans; a third-party agency cannot buy the query bundle and bill the motor carrier for it.
6. You Need to Get Moving Before January
J.J. Keller recommends that no later than fourth quarter 2019, employers:
- Train those involved in obtaining the DOT drug and alcohol background checks on the clearinghouse queries;
- Set up a process for dual inquiries (safety performance history and clearinghouse) for CDL driver candidates;
- Set up a tickler system for annual clearinghouse inquiries on existing CDL drivers;
- Train responsible parties on data the motor carrier must provide the clearinghouse;
- Sign up for motor carrier access to the clearinghouse; and
- Train appropriate motor carrier personnel on handling of inquiries, including driver authorization, record retention, and what actions are taken when a violation is discovered.
7. Drivers Need to Know Their Rights and Responsibilities
Even as your company or safety department is learning how to use the clearinghouse, it’s smart to make sure your drivers know their responsibilities and rights, as well.
If drivers change companies, they will have to register in order to give permission for the motor carrier to make queries of their information.
Osiecki notes that some drivers may never have to access the clearinghouse. He cites as an example a less-than-truckload driver who’s been with his company for 25 years, loves his job, is clean and sober, and is planning to retire from the same carrier in another 10 years.
J.J. Keller recommends employers tell drivers what driver data will be put into the clearinghouse, as listed in Section 382.601(b)(12), and also provide drivers the following best-practices training:
- An explanation of the inquiries performed by employers (Section 382.701);
- Driver procedures on signing up for access to the clearinghouse;
- Information on how drivers may obtain a copy of their clearinghouse records (Sections 382.707, 382.709);
- Procedures for correcting information in the database (Section 382.717);
- An awareness that state licensing authorities will have access to the database (Section 382.725); and
- Clarification on a driver's obligation to notify a current employer(s) (in writing) of DOT testing violations occurring under a different employer (Section 382.415).
Instructional Technologies Inc. recently added driver training on the clearinghouse to its Pro-Tread online training.
ITI Vice President Laura McMillan explains that the idea for the short lesson came from customers that “have a culture of getting regulatory and compliance information out to drivers; they want [drivers] to be informed.” It’s part of a system of transparent and proactive driver communication – plus one consistent message is getting out to drivers, minimizing the potential spread of inaccurate information.
One point the lesson makes clear to drivers is that they have to give permission for people to access the information. “Of course, if they refuse to allow access that will impact their employability,” McMillan says. “They have a right to review their information, and if they find a discrepancy or disagree with records, they can write to FMCSA and dispute it and potentially correct that record.
“It’s a regulation and a system that’s designed to reduce the issue of drivers flipping from one company to another,” McMillan says. “It’s meant to catch people who are trying to game the system, frankly. But on the flip side, it is meant to keep the motoring public safe, and for drivers who have submitted to drug and alcohol treatment programs, it protects them too.”