Employers of drivers who hold commercial driver’s licenses (CDL) have been subject to U.S. Department of Transportation drug and alcohol testing requirements for over twenty-five years. These regulations, enforced by the Federal Motor Carrier Safety Administration (FMCSA), require that any driver who fails (or refuses to take) a mandated drug or alcohol test must be taken off the road until he or she completes a return-to-work process that includes consulting with a substance abuse professional (SAP), following through with required education and/or treatment programs and passing a return-to-work test.
Under the regulations, employers are required to take certain precautions when hiring a CDL driver to ensure that the candidate is fit to drive, including investigation of the driver’s testing compliance history with each of his or her DOT-regulated employers during the preceding three years. One problem with this requirement is that drivers seeking new employment can easily omit from their job application any prior employment that involved a testing violation. In addition, some prior employers may fail to keep good records of prior violations or may be reluctant to share driver violations in the reference process – and thereby fail to give subsequent employers a clear picture of a driver’s compliance history.
Effective January 1, 2020, these gaps in the FMCSA’s enforcement scheme will be addressed via the “Commercial Driver’s License Drug and Alcohol Clearinghouse.” FAQs regarding the Clearinghouse are available on the FMCSA website. Some key requirements are summarized below.
Reporting Requirements. The new Clearinghouse regulations supplement existing DOT/FMCSA testing requirements; they do not alter them. Effective January 6, 2020, covered employers must track and promptly report certain driver information directly to the Clearinghouse, including positive confirmation tests, refusals to test, actual knowledge of driver drug or alcohol use before duty, while on duty or soon after an accident in violation of existing regulations, negative return-to-duty tests and confirmation that the driver completed all follow-up tests directed by the SAP. These reports are accepted by the Clearinghouse even if the driver has not yet registered; the reported data is linked to the driver’s license information and not Clearinghouse registration. Information relating to violations that occurred prior to January 6, 2020 need not be reported; however, a test specimen that is taken before the effective date would need to be reported if a Medical Review Officer verifies the positive test result after the regulations take effect. Medical review officers (MROs), SAPs and third-party administrators have similar reporting requirements to ensure that a driver’s compliance profile is complete.
Query Requirements. Upon hiring a new CDL driver, a covered employer must conduct a “full query” of the Clearinghouse with respect to the driver’s compliance history. A full query allows access to detailed information regarding a driver’s prior positive test results and return-to-work process compliance. A hiring employer must confirm that all reported incidents were appropriately resolved before the driver may be permitted to perform safety-sensitive functions. In addition, employers are required to conduct “limited queries” for each covered driver they employ on an annual basis, with the first occurring within twelve months of January 6, 2020. The Clearinghouse will respond to limited queries with a general response as to whether it possesses any information regarding a driver’s prior testing violations – the employer will then need to follow through with a full query for those drivers with records of concern.
Drivers must consent to an employer conducting the required queries and may not be permitted to perform safety-sensitive functions if they refuse to do so. Consent for a full query must be given by the driver electronically via the Clearinghouse. On the other hand, driver consent for limited queries may be given in writing and a single consent form may be used to cover every annual limited query that occurs for the duration of the driver’s employment. FMCSA has published a sample written consent form which can be found here. Employers are not required to use the template form and may wish to modify it.
Notably, during the hiring process, employers must continue to investigate a CDL driver’s testing compliance history by contacting each of his or her DOT-regulated employers during the preceding three years – however, this requirement will cease once the Clearinghouse is three years old (on January 6, 2023).
Registration Requirements. Drivers are not required to immediately register for the Clearinghouse but must do so in order to provide consent for “full queries” from employers and in order to review the information contained in the Clearinghouse relating to them. For this reason, drivers are well-advised to register now. Employers must register in order to report information and conduct the required queries. Employers may purchase “query plans” on the FMCSA website. Employers and drivers can register via the FMCSA website.
The FMCSA Commercial Driver’s License Drug and Alcohol Clearinghouse should eventually (i.e. by 2023) simplify the process for clearing newly hired CDL drivers to drive. The regulations that take effect on January 6, 2020 contain additional requirements that are beyond the scope of this brief summary. If you have any questions regarding your responsibilities under the new FMCSA Clearinghouse regulations, please do not hesitate to contact any member of our Labor and Employment Law Practice Group.