DOT (FMCSA) Clearinghouse Regulations – One Year in the Books

In 2020, employers with drivers that operate commercial motor vehicles (CMVs) were tasked to comply with one of the most significant changes in the Department of Transportation (DOT) regulations in recent years. The Federal Motor Carriers Safety Administration (FMCSA) Clearinghouse rule, also known as the Commercial Driver’s License Drug and Alcohol Clearinghouse (“Clearinghouse”)  – 49 CFR Part 382, subpart G[1], went into effect on January 6, 2020. The new rule requires employers, drivers, and industry service providers to register and utilize the clearinghouse database.

The FMCSA promotes that the clearinghouse will improve highway safety by helping employers, the FMCSA, State Driver Licensing Agencies, and State law enforcement to quickly and efficiently identify drivers who are not legally permitted to operate CMVs due to drug and alcohol program violations. This new, secure online database will provide access to real-time information, ensuring that drivers committing these violations complete the necessary steps before getting back behind the wheel or performing any other safety-sensitive function.

 

The Role of the Clearinghouse

The primary role of the new clearinghouse is increased safety. The implementation of the Clearinghouse database will, over time, close a dangerous loophole that has been exploited since the 1990s, with the industry previously relying solely on a manual paper-driven process to verify past employment activities CDL holders. The clearinghouse’s implementation now provides employers and other authorized users real-time information about commercial driver’s license (CDL) and commercial learners’ permit (CLP) holders’ drug and alcohol program violations, thus improving safety on our Nations’ roadways.

 

The Clearinghouse’s Impact

Referencing the FMCSA’s Clearinghouse FactSheet[2], these new regulations affect “all CDL drivers who operate CMVs on public roads, and their employers and service agents.”

Information that is required to be reported and stored in the FMCSA Clearinghouse includes:

• • Verified positive, adulterated, or substituted controlled substance test results
  • Reports of refusal to test (including no-shows)
  • Verified positive alcohol test results above .04
  • DUI citations while operating a Commercial Motor Vehicle
  • DUI conviction while operating a Commercial Motor Vehicle
  • Reports of actual knowledge of illicit alcohol or drug use
  • Negative return-to-duty test results
  • Records of compliance with follow-up testing requirements

 

One year since its inception, more than 182,000 CMV employers have registered with the clearinghouse. Here’s a look at notable data collected in 2020[3]:

• • 56,000+ CMV driver violations were reported.
  • 45,822 of the violations were from drug test failures, 7,803 from drivers refusing to take the tests, and 1,330 reported based on an employers’ actual knowledge of a violation.
  • 28,558 drug testing violations reported were during pre-employment testing, 20,761 from random drug testing, 2,293 from post-accident testing, and 1,120 from reasonable suspicion testing.
  • Most drivers tested positive for marijuana (29,500), followed by cocaine (7,940), amphetamine (5,953), and methamphetamine (5,187).
  • 1,203 violations reported were alcohol-related.
  • Only 6,513 drivers return to duty after completing the DOT requirements.
  • 34,769 were reported not to have even attempted the return-to-duty process.

 

For Employers

Employers of drivers operating CMVs that require a commercial driver’s license (CDL) or commercial driver’s permit (CLP) are required to implement and conduct a drug and alcohol use testing program that complies with FMCSA and DOT requirements. Employers will be required to query the clearinghouse and request drug and alcohol testing histories from previous employers (going back three years) until January 6, 2023.  The Clearinghouse query will then replace the need for an employer to request employment history from then on.

Get Registered – The FMCSA Clearinghouse brings the following new requirements for employers. Regulated employers must register their company with the clearinghouse. The database will pull your company information from other FMCSA systems using your USDOT Number. Registration is free. Once registration is complete, employers who work with one or more consortia/third-party administrator(s) (C/TPAs) are required to designate them in the clearinghouse before accessing the Clearinghouse database on the employer’s behalf. Employers can also invite “assistants” or other employees who will access the clearinghouse on the company’s behalf, inviting them to register as part of the company or organization.

Pre-Employment Screening – Employers are required to run detailed database queries to make sure applicants they are planning to hire for regulated positions do not have outstanding positive test results.

Annual Screening – Employers are required to run limited database queries for current drivers at least once a year to determine whether any information exists in the clearinghouse about those employees. If the limited query returns any results, a detailed database query will then be required.

Employers must also:

• • Purchase a database Query Plan from the FMCSA.
  • Keep CDL information (number & state of origin) in a driver file and easily accessible.
  • Adjust your hiring process to include gathering consent from drivers to do an initial detailed query and include the details for which an employer will report results to the clearinghouse.
  • Report drug and alcohol testing violations to the clearinghouse, including alcohol test results with a concentration of .04 or greater, refusals to take a drug or alcohol test, and any actual knowledge of a violation. Employers will also report negative return-to-duty (RTD) test results and the successful completion of a driver’s follow-up testing plan. This information must be reported by the close of the third business day after the employer is informed.
  • Provide training for your Designated Employer Representative (DER) and safety officers on the new clearinghouse rule and the required documentation for reporting “actual knowledge” of drugs or alcohol use while operating a Commercial Motor Vehicle (CMV).
  • Employers are also required to revise their drug testing policies to reflect these new regulations.

 

An owner-operator or employer who employs themselves as a driver must comply with FMCSA drug and alcohol requirements that apply to both employers and drivers. Owner-operators are required to work with at least one consortia/third-party administrator (C/TPA). Owner-operators are required to designate their C/TPA(s) in the clearinghouse before they can access the Clearinghouse database on their behalf.

 

Employers can learn more about the clearinghouse rules here:

Employer Brochure & Purchase Query Plans.

Clearinghouse rules for drivers, including the types of tests required, when testing occurs, and drivers’ rights and responsibilities here: Driver Brochure or Owner-operator Brochure.

Additional information and resources can be found on the FMCSA Clearinghouse website: https://clearinghouse.fmcsa.dot.gov/

 

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[1] https://www.govinfo.gov/content/pkg/CFR-2018-title49-vol5/xml/CFR-2018-title49-vol5-part382.xml#seqnum382.401

[2] https://clearinghouse.fmcsa.dot.gov/Resource/Index/Factsheet

[3] https://www.ehstoday.com/safety/article/21155008/fmcsa-drug-clearinghouse-posts-scary-numbers

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