By Larry Barton, Joe Morten & Son, Inc., Risk Management Specialist
The roll out of the Federal Motor Carrier Safety Administration's (FMCSA) Drug & Alcohol Clearinghouse has stirred a lot of discussion and, in some cases, confusion. Here are some of the frequently asked questions, coupled with guidance from the FMCSA:
Question: Are drivers who hold a Commercial Drivers License (CDL) required to register for the Clearinghouse?
FMCSA Guidance: Drivers are not required to register for the Clearinghouse. However, a driver will need to be registered to provide electronic consent in the Clearinghouse if a prospective or current employer needs to conduct a full query of the driver’s Clearinghouse record—this includes all pre-employment queries. See 49 CFR §382.703(d).
A driver must also be registered to electronically view the information in his or her own Clearinghouse record. See 49 CFR §382.709.
Registered drivers will have their Clearinghouse accounts and contact preferences set up, allowing them to quickly respond to query requests from employers. Registration is available at https://clearinghouse.fmcsa.dot.gov/register.
Question: What is the timeframe in which an employer must submit a report of an employee’s drug and alcohol program violation to the Clearinghouse?
FMCSA Guidance: Employers are required to report a drug and alcohol program violation by the close of the third business day following the date on which the employer obtained the information. See 49 CFR §382.705(b)(1).
Qu
estion: What records should employers maintain in a driver qualification file to meet the requirements of §382.701(e)?
FMCSA Guidance: As of January 6, 2020, employers are required to conduct both electronic queries in the Clearinghouse and traditional manual inquiries with previous employers to meet the three-year timeframe required by 49 CFR §391.23. This will be required until January 6, 2023, at which point a query of the Clearinghouse will satisfy this requirement.
The Clearinghouse retains a record of every query an employer conducts. This includes any queries conducted by a designated consortium/third-party administrator (C/TPA) on the employer's behalf. Employers may choose to maintain separate copies in addition to these Clearinghouse records.
Question: How long will CDL driver violation records be available for release to employers from the Clearinghouse?
FMCSA Guidance: Driver violation records will be available in the Clearinghouse for five years from the date of the violation determination, or until the violation is resolved through the successful completion of the return-to-duty (RTD) process and follow-up testing plan, whichever is later. See 49 CFR §382.719.
Question: Does an owner-operator have to conduct queries on himself/herself?
FMCSA Guidance: Yes. Anyone who employs a CDL holder must query the Clearinghouse
(§382.701). This requirement includes owner-operators—that is, any employer that employs himself or herself as a CDL driver, typically a single-driver operation. Owner-operators must comply with all Clearinghouse requirements imposed on both employers and employees
(§382.103(b)). An owner-operator’s designated C/TPA may conduct queries on the owner-operator’s behalf. However, the C/TPA is responsible for reporting drug and alcohol program violations to the Clearinghouse for the owner-operator in accordance with 49 CFR §382.705(b)(6).
Question: How do owner-operators meet their Clearinghouse obligations?
FMCSA Guidance: An owner-operator (an employer who employs himself or herself as a CDL driver, typically a single-driver operation) is subject to the requirements pertaining to employers as well as those pertaining to drivers. Under the Clearinghouse final rule, an employer who employs himself or herself as a CDL driver must designate a C/TPA to comply with the employer’s Clearinghouse reporting requirements (§382.705(b)(6)).
Question: Can an employer or medical review officer (MRO) enter a drug and alcohol program violation in a CDL driver’s Clearinghouse record if the driver is not registered for the Clearinghouse?
FMCSA Guidance: Yes. When a violation is entered, the Clearinghouse associates it with a driver’s CDL information. This will be recorded even if the driver has not registered for the Clearinghouse. When an employer queries a driver’s information in the Clearinghouse (with the appropriate consent), the employer will enter the driver’s CDL information to verify whether any violations are associated with that driver’s CDL.
A driver is required to enter his or her CDL information during the driver's Clearinghouse registration. This allows him or her to view any violation or return-to-duty (RTD) information associated with his or her CDL.
Question: How will CDL drivers be notified when information about them is added to the Clearinghouse?
FMCSA Guidance: The Clearinghouse will notify the driver using the method indicated during the driver’s Clearinghouse registration—either mail or email—any time information about the driver is added, revised, or removed.
If the driver has not yet registered for the Clearinghouse, these notifications will be sent by mail using the address associated with the driver’s CDL. See 49 CFR §382.707.
For more information, go to: https://clearinghouse.fmcsa.dot.gov/FAQ
Note: These lists are not intended to be all-inclusive
This material is intended to be a broad overview of the subject matter and is provided for informational purposes only. Joe Morten & Son, Inc. does not provide legal advice to its insureds or other parties, nor does it advise insureds or other parties on employment-related issues, therefore the subject matter is not intended to serve as legal or employment advice for any issue(s) that may arise in the operations of its insureds or other parties. Legal advice should always be sought from legal counsel. Joe Morten & Son, Inc. shall have neither liability nor responsibility to any person or entity with respect to any loss, action, or inaction alleged to be caused directly or indirectly as a result of the information contained herein. Reprinted with permission from Great West Casualty Company.