We speak with employers every day; many of them regulated by the FMCSA, under the DOT umbrella. It comes as a surprise to me when I find out quite a few do not know about the new CDL/FMCSA Drug & Alcohol Clearinghouse that will be going live in 2020. I thought I would share a few bits of information. Please be advised: this is not the entire rule, nor a complete list of the new requirements, but a list of some very important changes that will occur. You can see the entire list of regulations here. AND the FMCSAs complete list of FAQ. I've decided to break this information up into parts, and this is Part 1 of What You Should Know.
The CDL Drug & Alcohol Testing Clearing House final rule was published on 12/5/2016, and the was made effective on 1/4/2017. The rule makes possible for the FMCSA to create a
database for drug & alcohol testing violations, and whether a driver holding a CDL has completed the necessary steps to complete an SAP program, should they violate the drug & alcohol testing policy in CFR Title 49 Part 382. The two main requirements of the regulations are querying and reporting, and are performed by: employers, service agents acting on behalf of the employer (C/TPA), MROs, and SAPs. This article will focus on these two aspects.
Querying - Who and why?
Employers
Service Agents (C/TPAs - if acting on behalf of employer)
State Licensing Agencies
NTSB (If involving a crash under investigation)
In order to query the database, a driver must give their electronic consent, through the clearinghouse, on the specific information to be released. If the driver does not consent, the employer cannot hire that driver for safety sensitive functions. The driver does not need to submit a consent for the state licensing agency or NTSB. By obtaining their state CDL, they are in-turn giving consent for the query. Driver must give consent on an annual basis, unless in the case of a limited query described below.
Employers, or service agents, must
query the database for the following reasons:
Pre-Employment - No employer shall allow a driver to start a safety sensitive position until a full query is complete, and the query results show that the driver does not have any violations, OR the driver has completed all aspects of an SAP program, AND has completed all requirements of the return-to-duty process.
Annual Query - A full query must be conducted on an annual basis. The employer, or services agent, may perform a limited query, in lieu of a full query, if the driver consents. A limited query will only return information, if information exists in the clearinghouse. If information does exist, the employer must conduct a full query, with consent of the driver. A limited query consent may be used for more than one year.
Notification of Information - If information is entered in to the clearinghouse within the 30 days immediately following the query of a driver, the FMCSA will notify the employer.
Reporting - Who and Why?
Employers
Service Agents (C/TPAs - if acting on behalf of employer)
MROs
SAPs
Reporting to the clearinghouse does not require consent. The following service agents must report violations of CFR Title 49 Part 382, and must be completed within 1-3 business days, respectively.
Employers and/or below service agents,
must report to the database for the following reasons:
Employers/Service Agents Acting on Behalf (by close of 3rd business day):
An alcohol confirmation test with a concentration of 0.04 or higher.
Refusal to test (alcohol) as specified in 49 CFR 40.261.
Refusal to test (drug) not requiring a determination by the MRO as specified in 49 CFR 40.191.
Actual knowledge, as defined in 49 CFR 382.107, that a driver has used alcohol on duty, used alcohol within four hours of coming on duty, used alcohol prior to post-accident testing, or has used a controlled substance.
Negative return-to-duty test results (drug and alcohol testing, as applicable)
Completion of follow-up testing as prescribed in the SAP report in accordance with §§40.307, 40.309, and 40.311 of this title. (CFR Title 49 Part 40)
MRO (within 2 business days of making the determination):
Verified positive, adulterated, or substituted drug test result.
Refusal to test (drug) requiring a determination by the MRO as specified in 49 CFR 40.191.
SAP (by close of following business day):
Identification of driver and date the initial assessment was initiated.
Successful completion of treatment and/or education and the determination of eligibility for return-to-duty testing.
An employer, employee, MRO, or service agent who violates any provision of this subpart shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b)(2)(C).
I know, this is a lot of information , and is just a portion of the new regulations. I will address more of the new regulations in future articles. I hope this helps clear up some confusion on the roles of employers and service agents, regarding the new rules and regulations. We are always here to answer any questions you may have. Please do not hesitate to send us a note with the Contact Us button below. Call us today to get complaint now, and check out our full site twintiersdrugtesting.com. More to come!
Disclaimer: Twin Tiers Drug & Alcohol Testing, LLC is not certified or approved by the DOT, or FMCSA, and we make no representation thereof. The use of the CDL Clearinghouse logo is purely for informational purposes.