Drug and Alcohol Clearinghouse Effective for Commercial Drivers
By: Jacob T. Palcic, J.D.
Employers may not let an employee with a commercial driver’s license (CDL) transport for them if the employee committed a drug and alcohol compliance violation, like testing positive for controlled substances (at least until getting treatment from a substance abuse professional and completing a negative return-to-duty test result). See 49 C.F.R. § 382.701. And employers have had to check drug and alcohol compliance history for drivers they’re considering hiring, including investigating drivers’ compliance history with each of their former employers within the past three years. See 49 C.F.R. § 391.23(d), (e).
The substance of these regulations hasn’t changed. But the Federal Motor Carrier Safety Administration (FMCSA)’s new Clearinghouse modifies the enforcement process. Previously, drivers might thwart a prospective employer’s investigation by omitting on their job application former employment that involved a testing violation. And sometimes, prior employers kept spotty compliance records, making it difficult for the prospective employer to ensure a driver’s fitness to transport.
The Clearinghouse is intended to close these enforcement gaps. Under the new regulations, effective January 6, 2020, employers must: (1) track and promptly report certain information about their current drivers to the Clearinghouse, including positive confirmation tests, refusals to test, and actual knowledge of a driver’s noncompliant drug or alcohol use; (2) for each prospective driver, conduct a “full inquiry” via the Clearinghouse into their drug and alcohol compliance; and (3) for each current driver, annually conduct a “limited inquiry” via the Clearinghouse into their drug and alcohol compliance, with a “full inquiry” to be performed if the limited inquiry reveals any red flags. 49 C.F.R. §§ 382.701, et seq.
Under the new rules, employers must continue to manually investigate prospective drivers’ compliance history with prior employers in addition to making the appropriate inquiries through the Clearinghouse in order to cover the three-year window. But on January 6, 2023, the manual process of reaching out to former employers will be phased out, with the Clearinghouse process fully satisfying that investigative requirement. See Drug and Alcohol Clearinghouse Factsheet, FMCSA.
To register for the Clearinghouse, go to https://clearinghouse.fmcsa.dot.gov/ and click “Register today.” For more information on Clearinghouse requirements, see FMCSA’s frequently asked questions at https://clearinghouse.fmcsa.dot.gov/FAQ.
If you have questions about this article, contact a member of Yoder Ainlay Ulmer & Buckingham’s employment law practice group at (574) 533-1171.
Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance your interpretation of these materials is appropriate to your particular situation.
© Yoder Ainlay Ulmer & Buckingham, LLP [January 2020]