companies three years to fully comply. This includes changing the language of pre-employment investigations to include the driver’s CDL number (or ID number) for the website, and permission to conduct the initial full query. Until 2023—when the Clearinghouse
will have enough information and history to be the sole source to query—employers will be required to request drug and alcohol test histories from previous employers going back three years, in addition to querying the Clearinghouse. For drivers confirmed to be on a follow-up plan, employers will still need to request the testing plan from previous employers or the Substance Abuse Professional (SAP). Because the FMCSA has not provided
a timeline for when the Clearinghouse portal will be visible to end-users, there are certain details that remain unknown. For instance, the new Clearinghouse rule states that the FMCSA may collect a reasonable fee from entities required to query the database (the exception being that no driver may be required to pay a fee to access his or her own information), but does not specifically list those fees. So, what could they include? In this case, we can look to state-
specific drug testing databases for examples. In Arkansas, all employers of the state’s commercial drivers are required to search the Arkansas Commercial Driver Alcohol and Drug Testing Database prior to hiring a commercial driver. In the Arkansas example, we find that an initial set-up fee of $95 is required for an end-user to purchase a subscription to the database, and subsequent annual renewals are also $95. In addition, there is a $2.50 per search transaction fee to query the database. We might assume that the costs of the
FMCSA Clearinghouse will be less, since more people will be using the database. However, employers should expect some
10 datia focus
type of fee or cost to be associated with the national database.
What are the fines or penalties if the database requirements are violated? Failure to report to the Clearinghouse will result in the same legal and civil penalties for any violation of CFR parts 40 and 382. Te rule states that “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).” Tis provision further states that the civil penalty for this violation is not to exceed $2,500 for each offense. Non-compliant employers may also have
their Clearinghouse access revoked for frequent violations in reporting, including falsifying testing reporting.
Who has access to the Clearinghouse? Employers and designated service agents (principally, drug and alcohol testing consortiums and Tird-Party Administrators, or C/TPAs) have access for both limited and detailed queries, although permission is needed from the driver and each query will have a cost. Employers may have annual or multi- year permission for limited queries, and specific permission will be needed for each full query. Employers are not allowed to have employees give blanket permission for unlimited detailed queries. Drivers will also have access to their own
records at no cost, and DOT officials with regulatory authority will be able to access the database.
What if there is incorrect information in the database? Under the ruling, drivers have the right to challenge only the accuracy of the
information reporting, not the accuracy of test results or refusals. Te three reasons they can challenge are: 1. If something has been reported multiple times (not challenging the actual results);
2. If a DUI citation did not result in a conviction; or
3. If an employer reporting a violation based on actual knowledge (a driver can challenge the employer’s accuracy of “contemporaneous documentation” as “actual knowledge” that was reported in the Clearinghouse).
For the last reason, it is important
to clarify that an employer has “actual knowledge” of a driver’s drug or alcohol use while performing safety-sensitive functions based upon the employer’s direct observation of employee drug or alcohol use, an admission by the employee of drug or alcohol use, information provided by a previous employer, or if the employee receives a traffic citation for driving a CMV while under the influence of drugs or alcohol. A detailed explanation of why the
information is inaccurate, and evidence supporting the reasons for the challenge must be submited in order to challenge reported results. It is important to note that employers
will receive notification for drivers queried in the last 30 days, and a driver will receive notification every time his or her record has been updated.
How will this affect employers and drivers? Once the Clearinghouse becomes available, employers must register. Then, before making a hiring decision, employers must query the Clearinghouse for potential candidates with their CDL numbers, and must have the driver’s permission for a full detailed query. Also, every driver employed must be queried annually to check for new information.
summer 2017
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