One of the biggest regulatory changes to affect the ability of a driver to get a job with a trucking company — or keep their job if they're an owner-operator — will start in January 2020 with the implementation of the federal Drug & Alcohol Clearinghouse. Below is a summary explaining what every driver should know before and after employers start using the database as part of the hiring process.
What Is The FMCSA Clearinghouse?
The Drug & Alcohol Clearinghouse is a secure, online database that will be administered by the Federal Motor Carrier Safety Administration (FMCSA) beginning Jan. 6, 2020. The Clearinghouse will give the FMCSA, employers, state driver licensing agencies and state law enforcement personnel real-time information about commercial driver's license (CDL) and commercial learner's permit holders' drug and alcohol program violations.
The Clearinghouse will contain records of violations of drug and alcohol prohibitions outlined in current federal regulations, including positive drug or alcohol test results and test refusals. Information on the completion of the return-to-duty (RTD) process and follow-up testing for those drivers who have had a violation will also be recorded in the Clearinghouse. (Find out more on specific regulations for specific regulations on drug and alcohol prohibitions.)
A key question for drivers is whether they are required to register. Drivers who employ themselves as owner-operators must register in the Clearinghouse. Owner-operators are also responsible for conducting queries of the Clearinghouse database (unless designating a C/TPA to do so – see below). A query is an electronic check to determine if a driver is prohibited from operating a truck due to unresolved drug and alcohol program violations.
According to the FMCSA, an owner-operator is required to work with a designated consortium/third-party administrator (C/TPA) to manage a drug and alcohol testing program. A C/TPA may conduct queries on the owner-operator's behalf, but the C/TPA is also responsible for reporting an owner-operator's drug and alcohol program violations to the Clearinghouse.
The regulation does not require employee drivers to register. However, as FreightWaves has previously noted, drivers who have past drug or alcohol violations or who are seeking employment with another company must register. That's because fleets will be required to perform a full query of the database as part of any pre-employment driver investigation beginning Jan. 6, 2020 — and that requires a driver's electronic consent in the Clearinghouse through registration.
Why is this important for employee drivers to know? If, for example, a driver who has a drug and alcohol program violation in one state then applies for a CDL in another state, the Clearinghouse will be able to connect that driver's drug and alcohol violation history to the new CDL. According to FMCSA, "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."
Employee drivers must also plan to register if they want to gain access to their information in the Clearinghouse. The FMCSA encourages drivers to enter their CDL information to confirm all information is accurate. Drivers can request corrections of inaccuracies. However, drivers may challenge only the accuracy of the information reported, not the accuracy or validity of test results or refusals, according to the agency.
All Mexican or Canadian drivers subject to U.S. Department of Transportation and FMCSA drug and alcohol testing requirements must also comply with Clearinghouse requirements.
When And How
Registration has been open since Oct. 1, 2019. All drivers who register before Jan. 6, 2020 will have their Clearinghouse accounts and contact preferences set up, which will allow them to respond quickly to query requests from employers on or after that date. The FMCSA has provided detailed, step-by-step instructions on how to register, including how to set up a user account.
Costs For Drivers
All drivers will be able to electronically access their Clearinghouse records or determine the status of information in their record at no cost. But again, drivers must register in the Clearinghouse in order to access their information.
For owner-operators, however, there is a charge for conducting a query. FMCSA released cost details in August. The costs depend on the type of query and number of drivers, with the cost of a single basic query $1.25. The FMCSA has provided this breakdown on query costs.
Outside Access, Security, And Notification
According to FMCSA, the agency "takes the protection of personal information very seriously," and the Clearinghouse will meet federal security standards. The FMCSA will regularly verify the effectiveness of the security protections. Only full queries, which require verified driver consent, will result in the release of records to prospective or current employers. Social Security numbers will not be required to enter driver violations — only the driver's CDL number and issuing state will be used to identify a driver in the Clearinghouse.
In addition to FMCSA enforcement personnel, state driver licensing agencies and the National Transportation Safety Board will be able to access driver information in the Clearinghouse for limited purposes.
Controlled substances compliance violations reported to FMCSA
(Year-over-year percent change w/number of violations, by state, as of Dec. 16, 2019)
The Clearinghouse will notify a driver by mail using the address on his or her CDL anytime information about the driver is added, revised or removed. A driver may elect to receive electronic notifications when registering in the Clearinghouse.
Driver violation records will be available in the Clearinghouse to authorized employers for five years from the date of the violation determination, or until the driver completes the RTD process, whichever is later. There are limited exceptions that could result in earlier removal of driver violations from the Clearinghouse.
Failing A Test
There are serious consequences for drivers who violate testing rules. Violating the rules can occur by failing an alcohol test; showing a positive, adulterated or substituted drug test result; or, in the case of a federally sanctioned pre-employment test, registering a refusal once the testing procedures start.
Regulatory compliance provider J.J. Keller explained that such drivers:
- Must be removed from all safety-sensitive functions
- May not return to a safety-sensitive function until:
- An evaluation by a substance abuse professional (SAP) has been done
- The driver has complied with prescribed treatment, and
- He or she passes an RTD test
- Are subject to at least six follow-up tests in the first 12 months after returning to duty and may be subject to follow-up testing for up to a total of five years.
Return To Duty (RTD)
If a driver fails a drug or alcohol test, he or she is not allowed to "perform safety-sensitive duties" – which includes driving a truck – for a DOT-regulated employer or on their own if they're an owner-operator. To become eligible to drive again, a driver must see a substance abuse professional (SAP) as well as complete the RTD process, which includes a federal return-to-duty drug and/or alcohol test.
According to federal regulations, the RTD test cannot occur until after the SAP has determined that the driver has successfully complied with education and/or treatment recommended by the SAP. (The FMCSA has provided specific details on SAPs and the RTD process.) The driver must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before being allowed to drive again.
It's important to note that employers are not required to allow a driver to return to work even after he or she has gone through the RTD process. That decision is at the discretion of employers and is subject to collective bargaining agreements or other legal requirements, according to the FMCSA.
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