The Department of Transportation is establishing a central database to contain all of the drug and alcohol testing information for commercial drivers. Called the Commercial Driver’s License Drug and Alcohol Clearinghouse, employers will be required to register their employees and report test results to the clearinghouse. It has been four years since Congress called for this national database of truck drivers who have drug and alcohol violations. The purpose of the clearinghouse is to prevent CDL holders with positive drug and alcohol test results, refused required drug and alcohol tests, or who have undergone the return-to-duty drug and alcohol rehabilitation process from job-hopping (moving to a state where the results do not follow them) – making it harder to hire these drivers and keeping the roads safer.
Once the database is ready, commercial drivers and service agents will need to register with the clearinghouse and report their testing information. After that, there will be two reasons required to query the database and two types of database checks; 1) a full detailed query for pre-employment screening – employers will be required to check and make sure any driver they are planning to hire does not have an outstanding positive test result; and 2) a limited query for annual screening – employers will also need to update their driver rosters with the database at least once a year to determine whether information exists in the clearinghouse about those employees. If the limited query shows information in the clearinghouse database, a full detailed query is required. If a full query is not done within 24 hours, the employer must not allow the driver to continue to perform any safety-sensitive functions until the full query is conducted and the results confirm that the driver’s record contains no prohibitions.
These regulations will also directly affect service agents, like drug and alcohol testing consortiums and third-party administrators (C/TPAs). Every employer who uses a service agent will be required to register those service agents with the clearinghouse. That means that agents will need specific authorization (written or electronic consent) from every client in order to access their drug and alcohol testing information. The database will use driver’s license numbers to search for drivers. That means that agents will need to collect CDL numbers from every driver in their random pool, not just social security numbers. This change has already started happening at some sites, and should be expected to happen for all service providers in the near future.
The final rule for the new clearinghouse has already been implemented but the database will not be active until January 2020. That is to say, the law has been written and finalized, but there will be a three-year waiting period while the database is created to give businesses time to comply with the rules. The FMCSA has not yet provided a timeline as to when the clearinghouse portal will be visible to end-users, but there are some state-specific drug testing databases for CDL drivers that one might look at to get an idea of how it might all work. Arkansas has already created this sort of system, and you can read some frequently-asked-questions on their website (www.ark.org/drugtest/index.php/user/faq).
The Arkansas database was effective January 1, 2008. Act 637 requires all employers of Arkansas commercial drivers to search the Arkansas Commercial Driver Alcohol and Drug Testing Database prior to hiring a commercial driver. Arkansas employers and Medical Review Officers authorized in the state of Arkansas are responsible for reporting positive drug and/or alcohol test results, the refusal to submit to a drug and/or alcohol test, or the submission of an altered specimen to this database. For an overview of the Alcohol and Drug rules, go to the Federal Motor Carrier Safety Administration’s website (www.fmcsa.dot.gov).
There will be fees to access and query the database. The clearinghouse rule states that the FMCSA may collect a reasonable fee from entities required to query the database, with the exception that no driver may be required to pay a fee to access his/her own information in the clearinghouse. So, what kind of fees could this look like? If we look at the Arkansas database for a comparison, we find an initial setup fee of $95.00 for an end-user to purchase a subscription and subsequent annual renewals of $95.00. There is also a $2.50 per search transaction fee to query the database.
What fines or penalties are there if you violate the database requirements? Failure to report to the clearinghouse will result in the same legal and civil penalties for any violation of parts 40 and 382. The rule states “an employer, employee, MRO, or service agent who violates any provision shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b)(2)(C).” This provision states that the civil penalty for this violation is not to exceed $2,500 for each offense.
All Medical Review Officers (MROs) will be required to report, within two business days after making a determination or verification, any positive, adulterated or substituted controlled substances test results, and any refusal to test. Employers or C/TPAs will be required to report, within three business days after obtaining that information, any alcohol confirmation test result with an alcohol concentration of 0.04 or greater, any refusal to test, and any report that a driver has completed all follow-up tests prescribed in a SAP report. Substance Abuse Professionals (SAPs) will be required to report each driver that has completed the return-to-duty process.
Drug and alcohol violations will remain in the clearinghouse for five years or until the driver completes the entire return-to-duty process, whichever happens later. Employers must retain for three years a record of each query and all information received in the response for each driver.
If someone believes there is incorrect information in the database, they may challenge only the accuracy of the information reporting, not the accuracy of test results or refusals. This is a basic petition that includes driver’s name, address, phone number, CDL number and state issued. A detailed description of the basis for why the information is inaccurate, and evidence supporting the reasons for the challenge, will also be required.
Although it seems like this is still a long time away, time flies and it will be here before you know it. The best way to stay ahead and informed is to join an association like NTA. For more details, call (562) 279-0557 or visit www.ntassoc.com today. Until next month, “Drive Safe – Drive Smart!”
