In 1991, the United States Congress passed the Omnibus Transportation Employee Testing Act, recognizing the need for a drug and alcohol-free transportation industry. The Act directed the Department of Transportation (DOT) and the Federal Motor Carrier Safety Association (FMCSA) to implement regulations requiring all commercial motor vehicle operators to be tested for the use of alcohol and controlled substances. The act makes all employers responsible for the actions of their employees, representatives and services agents in carrying out DOT regulations. (Learn more about DOT testing in DOT Vs. Non-DOT Testing: What's The Difference? and When An Employee Refuses a DOT Drug Test: What Employers Need To Know).
The Final Rule
The FMCSA announced its intention to create a Final Rule in December 2016 to establish a national Clearinghouse for the collection and distribution of data related to drug testing and alcohol testing of commercial vehicle drivers. The Final Rule, approved on January 4, 2017, was the culmination of nearly two years of advocacy by the American Trucking Association and will be fully operational across the United States by 2020. The Clearinghouse will contain all violation records of the FMCSA’s drug and alcohol testing program by those holding a commercial drivers’ license (CDL) and will replace all similar state-created data collection systems. The database will also provide information about drivers who have completed return-to duty testing protocols or other rehabilitation.
Process and registration
The Clearinghouse will require all employers to register and provide information to the database on a regular basis, and in return, the system will provide employers access to information about existing drivers and new hires. With national oversight, it will prevent commercial drivers from moving state-to-state to avoid prior records of drug and alcohol violations. Employer registrations, in good standing with the Clearinghouse, are valid for five years. Registrations by employers that are inactive for two years will be cancelled and require reapplication. FMCSA reserves the right to revoke Clearinghouse registration for any company or their agent that misuses the system through the submission of inaccurate information, improper use of protected or sensitive information, or failure to maintain the required qualifications, certifications or training requirements.
Designated drug and alcohol testing service agents that work with employers must also register with the Clearinghouse before they can report information. All commercial drivers must be registered with the Clearinghouse and will receive notification each time their record is updated.
Reporting and compliance
Employers may not allow an employee to operate a commercial vehicle when the driver is not in compliance with return-to-duty requirements as outlined in Code of Federal Regulations, Section 49 Part 40. Employers, testing agents, and medical review officers must report all controlled substance or alcohol violations to the Clearinghouse, including the following information on drivers in violation of drug and alcohol regulations:
- The driver receives a positive, adulterated, or substituted drug test result
- The driver gets an alcohol confirmation test result of 0.04 or higher alcohol concentration
- The driver refuses to be tested.
To ensure compliance with the Clearinghouse Final Rule, employers must report any violations, including negative return-to-duty tests and test refusals to the Clearinghouse before the end of three business days. Additionally, it is the employer's responsibility to ensure that any agents acting on their behalf submit documentation about drivers completing return-to-duty programming by the end of the next business day. Compliance also requires employers to create and distribute policies, refine procedures and job descriptions, and provide staff with training before any testing takes place.
Access to data
Employers are mandated to access the database at least once each year for existing drivers and immediately before hiring a new driver. In all cases, employers and their agents must obtain written consent from a driver for both pre-hire and annual assessments. Information about a driver’s prior drug or alcohol violations will not be available to an employer conducting a Clearinghouse query once the employee has successfully met return-to-duty conditions.
Besides providing information about new and existing employees, state licensing agencies will be required to access the Clearinghouse when a driver obtains, renews or makes changes to their CDL. The National Transportation Safety Board will access information related to drivers involved in accidents under their investigation, and those holding a commercial drivers' license will be able to access their own records as needed.
The Clearinghouse and drug and alcohol testing regulations were established in the best interest of the transportation industry and the general public. Once fully implemented, it is estimated that the Clearinghouse will provide cost savings of about $42 million each year, based on the reduction of drug and alcohol-related vehicle accidents, not to mention a reduction in costs associated with similar state-run operations. Employers, drivers, trainers, and healthcare professionals must familiarize themselves with Clearinghouse Final Rule regulations and the effects of alcohol and controlled substances to ensure a healthy and safe work environment.