Starting Jan. 6, 2020, a loophole in current drug testing compliance programs will close, giving fleets some relief from inadvertently hiring a driver who has failed a drug or alcohol test.
The Federal Motor Carrier Safety Administration’s (FMCSA) Commercial Driver’s License Drug & Alcohol Clearinghouse requires varying degrees of involvement from truck drivers and fleets, but the objective is clear: prevent drivers who fail a drug test at one carrier from immediately getting hired at another.
Mandated by Congress, the clearinghouse is a central repository for positive drug and alcohol test results and test refusals, which are considered a violation under current regulations. Drivers who test positive can follow a return-to-duty (RTD) process to restore their driving eligibility.
Carriers will be required to query the site before hiring a driver. They also must submit queries once a year for all their drivers to ensure continued compliance. State licensing agencies will eventually be required to query the site before issuing a commercial driver’s license (CDL), although additional rulemaking is required for this.
All violation records are maintained in the clearinghouse for five years or until the RTD process is completed, whichever is later.
Drivers are not required to register in the clearinghouse unless they are applying for a position with another company, or have had violations as fleets must perform a full query of the site for each driver each year and that requires driver consent through the driver portal account. Fleets can assist drivers in this process, explained regulatory compliance provider J. J. Keller & Associates, Inc.. Anyone who wants to access the clearinghouse, including the driver, must register.
Prior to the launch of the clearinghouse, a key decision fleets should make is whether to contract with a consortia/third-party administrator (C/TPA) for compliance monitoring. The use of a third party can alleviate the administrative burden of the process, in addition to ensuring that the process is conducted in compliance with the requirements. Although the rules sound simple enough, they present levels of complexity that can lead to a major violation if they are not followed correctly, J. J. Keller explained. For instance, what is considered “actual knowledge of a violation”? Or, what information must the employer report to the clearinghouse, and what are the timeframes for reporting?
“Those at the motor carrier who are responsible for reporting refusals to test and/or actual knowledge of a DOT testing violation need to have clear understanding of these terms. To misunderstand what constitutes each may result in information that is provided to the clearinghouse in error or not reported at all when it should have been,” said Kathy Close, Editor of Transportation Safety at J. J. Keller & Associates.
Registration for the clearinghouse is free, but queries are not. Employers can pay either a flat per-query rate of $1.25 for both limited and full queries or one annual payment of $24,500 for unlimited queries, FMCSA said. The $1.25 plan can be customized into 19 bundles ranging from 1 to 7,500 different queries depending on the size of the company, with bundled pricing ranging from $1.25 to $9,375.
Here are five steps fleets should be reviewing or performing now to ensure compliance with the Drug & Alcohol Clearinghouse regulation:
1. Ensure third-party contracts address the new reality. Many fleets view contracting with a third party that has expertise in regulatory compliance as a best practice. Contracts must be updated to address specific requirements that the clearinghouse calls for, including designation of a C/TPA to conduct queries on a carriers’ behalf. It’s important as well to note that a clearinghouse query is considered a consumer report when a C/TPA makes it on behalf of a motor carrier, and as such, that C/TPA must comply with Fair Credit Reporting Act (FCRA) regulations. Carriers accessing the clearinghouse themselves do not need to comply with the FCRA, J. J. Keller said.
2. Ensure the proper internal stakeholders are trained on the clearinghouse. This should go without saying, but training is an ongoing concern. Carriers, even those that use a third party, will still have internal employees involved in the process. They should be familiar with the process and requirements, including who must report violations. Violations of Part 382 (subpart B) must be reported by motor carriers, C/TPAs, medical review officers or substance abuse professionals (SAP) by the end of the third business day of learning of the violation. Employers must report failed alcohol tests, refusal of a test, actual knowledge of a violation (a driver admits to a violation or the employer sees a violation or a DUI in a CDL CMV), and negative return-to-duty (RTD) tests, and the completion of the final negative follow-up test.
Be sure to clarify, too, who is responsible for conducting queries, as more than one internal department may be involved, in addition to an outside expert. J. J. Keller offers a compliance checklist to help make sure no step is missed.
3. Train drivers. Drivers are not required to register for the clearinghouse, but even if they are not registered (more on that below), they should be educated on the process. Drivers may want to periodically query the clearinghouse themselves to ensure information contained in it is correct, but they must be registered to do so. Providers/carriers must enter test results even if the driver is not registered. FMCSA has created a process for drivers to dispute the accuracy of information reported. Law firm Scopelitis said fleets should also ensure testing policies reflect the new regulation. J. J. Keller advised updating educational materials.
Drivers may also want to monitor their clearinghouse profile to ensure the information is accurate. Fleets can help drivers navigate this process. Registration is now open.
4. Determine the type of query and secure consent agreements. Fleets are required to conduct a query for their CDL holders once a year. That query can be either a limited or full query and conducted by the carrier or C/TPA. A limited query returns notification of a record in the clearinghouse for that driver. A limited query requires consent from the driver, which takes place outside of the clearinghouse, FMCSA said. J. J. Keller advises getting this consent ahead of time from drivers. If a record is found, a full query must be conducted within 24 hours and requires an additional electronic consent from the driver. The employer may also conduct a full query at anytime, provided the employer has obtained the required electronic consent (via the driver’s clearinghouse account) for the release of information.
“Carriers can ask a driver to sign a consent that is valid for more than one year’s annual query of the clearinghouse. Many carriers are creating documents with verbiage that allows them to perform annual limited queries on a driver through duration of employment,” Close shared.
Like many regulations, the clearinghouse adds layers of reporting, timelines and documentation that require rigorous adherence. Everyone must know their role in the process, which is why fleets consider the use of external experts vital to ensuring compliance.
“In order for the clearinghouse to work as it was designed, everyone involved in the reporting process needs to submit timely and accurate data – so queries represent the driver’s most recent DOT drug and alcohol history,” Close stated.