Starting January 6, 2020, employers must use a new Federal Motor Carrier Safety Administration (FMCSA) Clearinghouse for drug and alcohol testing and verification of their drivers with Commercial Driver’s Licenses (CDLs). The Clearinghouse centralizes data about CDL drivers in a single database, and this article explains what employers need to report to the Clearinghouse and how employers can use the Clearinghouse to get information to improve driver safety.
Employers will need to register for the Clearinghouse to report information to the Clearinghouse and to send queries for information to the Clearinghouse.
Once the Clearinghouse has three years of data (on January 6, 2023), checking the Clearinghouse will fulfill employer obligations to verify a CDL driver’s drug and alcohol testing history. Until then, employers must continue to ensure that they have information going back three years about applicants and drivers along with now using the Clearinghouse to report information and to retrieve information, as explained more below.
Data must be reported only for drivers of vehicles that require a CDL
Clearinghouse obligations only apply to drivers of CDL-requiring vehicles, meaning drivers of vehicles:
- with a Gross Vehicle Weight Rating of 26,001 pounds or more,
- designed to transport 16 or more passengers (including the driver), or
- used to transport hazardous materials.
Note that if your drivers drive DOT-regulated vehicles that do not require a CDL (such as vehicles with GVWRs between 10,001 and 26,000 pounds), those drivers are not covered by the DOT’s drug-testing obligations and so you do not need to use the Clearinghouse for them.
What employers must report
Employers must report the following to the Clearinghouse:
- A driver refusal to take a drug or alcohol test;
- A driver admitting to the collector that he or she adulterated or substituted the specimen;
- A driver testing positive (unless the Medical Review Officer, MRO, already reports this);
- A driver testing negative on a return-to-duty test; and
- Any other violations of the DOT’s drug and alcohol program (such as pre-driving drinking, etc.) of which the employer has “actual knowledge.”
Employers must make reports by the close of the third business day after the event that triggered their reporting responsibility. So if a driver tests positive on Friday, the report must be made by the close of the business day on the following Wednesday.
Employers also must provide documentation to the Clearinghouse when reporting a violation. When a driver refuses to take a test, fails to show up, or admits messing with the specimen, the employer must provide a contemporaneous record or affidavit documenting the issue. When a driver fails a test or passes a return-to-duty test, the employer or its third-party drug-testing agent must provide documentation of the test result. And when an employer has “actual knowledge” of a violation, the employer must provide all evidence to support the report and verify that it has done so.
Getting information from the Clearinghouse: limited queries and full queries
Along with making reports to the Clearinghouse, starting January 6, 2020 employers must get information from the Clearinghouse before allowing a driver to drive a CDL-requiring vehicle.
The Clearinghouse has two types of “queries” for information: limited queries (which just tell you that there is some information in the Clearinghouse) and full queries (which provide the information about the driver—such as, he failed a drug test).
Starting January 6, 2020, employers must perform a full query before hiring an applicant
To perform a full query, the driver-applicant must consent to the query on the Clearinghouse itself. (The Clearinghouse will not allow an employer to view the full query results without this consent.)
An employer never has to do a full query again, unless a limited query comes back with notice that something is on the driver’s record. But an employer can do a full query again as often as it likes, as long as it gets consent from the driver through the Clearinghouse for each full query.
Employers must perform a limited query or full query at least annually
Every year, employers must perform at least a limited query for each driver. Since a limited query does not require the driver to go on the Clearinghouse to consent to the query, a limited query is easier for employers to administer.
However, employers must get consent to limited queries (they just don’t have to ensure that the driver gives consent on the Clearinghouse itself, which is required for full queries). And if an employer chooses to do a limited query more often than annually, employers should get consent to that frequency of queries.
So the best practice is this: An employer should get written consent for all applicants (and for all current drivers) allowing the employer to do limited queries as often as the employer chooses for the entire duration of employment. This will give employers the flexibility to do limited queries whenever they want without getting new consent from the employee. Note that consents to full queries not only have to be done on the Clearinghouse, but they must be done each time a full query is requested. An employer cannot get an ongoing consent for full queries.
If a limited query shows that there is Clearinghouse information about the driver, the employer must—within 24 hours—either conduct a full query to clear the driver or remove the driver from safety-sensitive functions
A limited query will not say what information is in the Clearinghouse about the driver. But if a limited query comes back showing that there is information, the employer must clear this up quickly. The employer must do a full query that results in information that clears the driver within 24 hours, or the employer must remove the driver from safety-sensitive functions until a full query can be done and the driver confirmed to be qualified to drive.
What about the Fair Credit Reporting Act?
The FMCSA, since it is a government agency, is not a consumer reporting agency under the Fair Credit Reporting Act. And the procedures for consent (employers get consent for limited queries themselves, drivers give Clearinghouse consent for full queries) fulfills most FCRA obligations for current employees. But some FCRA obligations (such as the post-adverse-action notice requirement) still apply.
When it comes to applicants, the FMCSA (which created the Clearinghouse) interprets the FCRA obligations differently than the Federal Trade Commission (which enforces the FCRA), which has taken the position that more stringent rules apply to applicants versus employees. So while the FMCSA notes several FCRA statutory exclusions for Clearinghouse reports (so-called “603(y)” exclusions), the FTC takes the position that these exclusions only apply to current employees and not to applicants, because the statute refers to employer status.
Because the FMCSA and FTC give conflicting guidance on the FCRA, any employer implementing reporting to the Clearinghouse should seek specific legal advice to ensure FCRA compliance, especially when it comes to applicants. (The least risky option, of course, is to treat Clearinghouse queries like background checks and fulfill every FCRA background-check obligation, but that is also the most difficult option to administer.)
The Bottom Line
For any employers with CDL drivers, the new FMCSA Clearinghouse is a source of new obligations. But if it works it should become a central database to receive reports from employers and to provide important information about drivers to employers. Eventually, the Clearinghouse will replace requests for information about applicants from past employers. For now, the Clearinghouse means that employers need to be ready to report information and to obtain proper consent to obtain information, including pre-hiring and annual queries to the Clearinghouse. And employers should be mindful that the FCRA continues to apply, although the information from the Clearinghouse (at least for current employees) appears to fall outside the scope of most FCRA obligations.