DOT Issues Final Rule on Drug and Alcohol Clearinghouse

By Richard P. Schweitzer, PLLC

The Federal Motor Carrier Safety Administration (FMCSA) has finally published its long-awaited final rule to establish an online clearinghouse of data for CDL drivers who test positive for drug or alcohol use in violation of DOT requirements or who refuse to submit to a DOT drug or alcohol test. The rule was mandated by Congress in MAP-21, the highway funding legislation enacted in 2015.

The final rule has a three-year implementation period that allows the FMCSA to contract with a third-party provider to develop and operate the clearinghouse. GAWDA member companies and their employees will not be required to comply with the clearinghouse rules until January 6, 2020.

Under the final rule, employers and medical review officers (MROs), or their designated representatives, will be required to report information to the clearinghouse about positive drug test results, alcohol test results greater than 0.04 blood alcohol content, refusals to test and other non-test violations of the FMCSA’s drug and alcohol regulations. In addition, Substance Abuse Professionals (SAPs) are required to report information about drivers undergoing the return-to-duty drug and alcohol rehabilitation process.

Database Search

database for information during the pre-employment process for prospective employees, and at least once a year for current employees. This is required to determine whether anyone has incurred a drug or alcohol violation with a different employer that would prohibit him or her from performing safety-sensitive functions.

But once the new rule is in place, prospective employers will no longer have to request information on the drug and alcohol testing history of driver applicants from former motor carrier employers, except in certain circumstances. That current process has not proven effective in generating useful information about applicants, as prior employers have been reluctant to divulge negative information about former employees due to fear of litigation.

Employer Access Fee

Employers will have to pay a fee to access the records of drivers and driver applicants from the database. The fees will be set as part of the competitive bidding process for a contractor to develop and operate the clearinghouse. Drivers will not have to pay any fee to access their own records in the clearinghouse.

The clearinghouse will identify drivers using their CDL number and state of issuance. Drivers’ Social Security numbers will not be used in this program.

Pre-Employment Checks

Once the clearinghouse is established, a prospective employer will be required to conduct a pre-employment query of the clearinghouse to obtain information about whether a driver applicant:

  • Has a verified positive, adulterated, or substituted controlled substances test result
  • Has an alcohol confirmation test with a concentration of 0.04 or higher
  • Has refused to submit to a DOT drug or alcohol test

GAWDA member companies and their employees will not be required to comply with the clearinghouse rules until January 6, 2020.

  • Or that an employer has reported actual knowledge that the driver used alcohol on duty, before duty, or following an accident in violation of FMCSA rules, or used a controlled substance in violation of FMCSA rules.

In addition, an employer will have to conduct a limited query of the clearinghouse at least once per year for information for all employees subject to controlled substance and alcohol testing to determine whether information exists in the clearinghouse about those employees. If that query shows that there is information in the system about the driver, then the employer must conduct a full query to retrieve the information about that particular driver from the database.

Permission Required

In order to obtain information about a driver or applicant from the clearinghouse, the employer must have the written permission of the driver/applicant before the employer may access the database. However, the employer may legally require the driver to give such permission as a condition of employment or continued employment. The FMCSA rule does not allow a driver to avoid discovery of the drug or alcohol testing history by refusing permission to the employer.

Although employers may conduct testing beyond that required by FMCSA and DOT rules, positive results for these non-DOT tests must be kept completely separate from DOT test results and do not constitute violations of FMCSA or DOT rules. Accordingly, the FMCSA did not expand the scope of the clearinghouse to include non-DOT tests.

Finally, the FMCSA has concluded that compliance with its rule will not violate the Fair Credit Reporting Act (FCRA) or the Health Insurance Portability and Accountability Act (HIPPA). The clearinghouse is not a covered entity under HIPPA, so its releases of drivers’ health information is not regulated. Also, the pre-employment check is an “excluded communication” and is therefore not covered under the FRCA.