The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration’s Clearinghouse will become operational on January 6, 2020, and FMCSA-regulated employers must be ready to comply with the Clearinghouse requirements on that date. The FMCSA Clearinghouse is an electronic database that will contain information about commercial motor vehicle drivers’ drug and alcohol program violations. Although the Clearinghouse rule actually took effect on January 4, 2017, the implementation date for FMCSA-regulated employers is January 6, 2020. See 49 CFR Part 382, Subpart G, among others.
The Clearinghouse rule requires FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, consortia/third-party administrators and other service agents to report to the Clearinghouse information related to violations of FMCSA’s drug and alcohol testing regulations by current and prospective employees. In addition:
- Employers must query the Clearinghouse for current and prospective employees’ drug and alcohol program violations before permitting those employees to operate a commercial motor vehicle on public roads.
- Employers are required to query the Clearinghouse annually for each driver they currently employ.
- State driver licensing agencies will be required to query the Clearinghouse whenever a CDL (commercial driver’s license) is issued, renewed, transferred or upgraded.
Here are the important dates that FMCSA-regulated employers must be aware of, and steps to take to prepare for compliance:
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:
- 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).
FMCSA-regulated employers should review and revise their drug and alcohol testing policies and become familiar with the Clearinghouse requirements before the implementation date.