The information in this article is based on a webinar presented by Trucksafe and DriverReach titled "Is Your Fleet Prepared for Full Drug and Alcohol Clearinghouse Implementation?" You can view a replay of that webinar here.
On January 6, 2023, the federal Drug & Alcohol Clearinghouse will have been in effect for three years. That's an important milestone for a few reasons, not the least of which is the regulatory change that occurs on that date. In this article, we'll discuss exactly what's changing come January 6th, but before we do, let's take a look at the Clearinghouse more broadly.
What is the Clearinghouse and who uses it?
In a prior article, we addressed the Clearinghouse in greater depth. Sufficed to say, the federal Drug & Alcohol Clearinghouse is an online, centralized database that identifies, in real-time, commercial drivers who are prohibited from driving due to a drug and alcohol program violation.
The centralization of this type of data was a long time in the making. Federal regulators worked for years to close gaps that existed when motor carriers were tasked with manually reaching out to the previous employers of driver applicants to inquire whether those applicants had violated the drug and alcohol testing regulations in the past. Without proper visibility of this data, carriers were too often allowing prohibited drivers to continue operating commercial vehicles.
In practice, the Clearinghouse works similarly to state and federal driver licensing databases, except, of course, that the Clearinghouse is focused on drug & alcohol testing violations. The Clearinghouse is meant to be checked by motor carriers, law enforcement, and state drivers' licensing agencies to determine whether a particular driver has committed a violation of the drug & alcohol testing regulations that render him/her disqualified to operate a CMV and, if so, whether he/she has successfully completed the required return-to-duty process to get back to work. In that sense, the system is similar to the longstanding Motor Vehicle Report (MVR) process, whereby motor carriers must periodically run MVRs on all drivers to ensure they are properly licensed to operate a CMV.
The Clearinghouse functions through regulatory reporting and querying obligations. Information concerning a commercial driver's positive test result, refusal to test or other violation gets reported to the Clearinghouse and associated with the driver's CDL number. That information then appears in any queries run by subsequent employers during the hiring process, by law enforcement during roadside inspections, and by state drivers' licensing agencies when issuing or renewing the driver's CDL.
Sample Clearinghouse Query
The Clearinghouse has several different users, each with its own respective regulatory obligations. As a preliminary matter, it's important to know that the Clearinghouse obligations only apply with respect to drivers who are subject to the FMCSA's drug & alcohol testing rules in 49 C.F.R. Part 382.
The various Clearinghouse users and their respective obligations are as follows:
CDL Drivers - Must register with the Clearinghouse to review their own drug & alcohol testing information, provide consent to employers to run full Clearinghouse queries, and select a Substance Abuse Professional, if applicable.
Employers of CDL Drivers - Must register with the Clearinghouse to report certain types of drug & alcohol violations, run queries to ensure that no current or prospective employee has had a violation that prohibits him/her from performing safety-sensitive functions, and appoint third-party administrators to help them comply with these obligations if they choose to do so.
Third-Party Administrators (TPAs) - Must register with the Clearinghouse in order to make reports and run queries on behalf of any employer that appoints them to do so.
Medical Review Officers (MROs) - Must register with the Clearinghouse to report verified positive drug test results and test refusals.
Substance Abuse Professionals (SAPs) - Must register with the Clearinghouse to report return-to-duty assessments and eligibility status for return-to-duty testing.
Law Enforcement - Utilizes the Clearinghouse to obtain real-time information about a CDL driver's qualifications to operate.
State Drivers' Licensing Agencies (SDLAs) - Utilize the Clearinghouse to run queries prior to completing certain licensing transactions.
The FMCSA has kept detailed track of Clearinghouse data over the past three years. In fact, it publishes monthly reports that summarize things like how many users have registered, how many drivers have tested positive, what types of substances are causing problems, and how many drivers have and have not started the return-to-duty process.
FMCSA Clearinghouse Violation Data
As of November 2022, over 3 million CDL drivers and over 425,000 employers have registered for Clearinghouse accounts. Over the past three years, employers have run nearly 16 million queries. 171,957 drug testing violations and 3,929 alcohol violations have been reported over that same time period. Marijuana use accounts for a substantial percentage of the reported violations. Significantly, as of November 2022, 113,995 drivers are currently in prohibited status due to drug/alcohol testing violations, meaning they are unable to operate a commercial vehicle.
FMCSA Clearinghouse Violation Data
What changes are coming in January 2023?
As noted, January 6, 2023, marks the Clearinghouse's three-year anniversary. On that date, certain portions of the Federal Motor Carrier Safety Regulations are set to change the way that motor carriers qualify new drivers.
When the Clearinghouse was first implemented, it was devoid of any data, meaning that when carriers ran the required queries, they would rarely receive any data in return. To avoid gaps in the qualification process, the FMCSA has, to date, required carriers to do two somewhat redundant things when qualifying a new driver: (1) run a pre-employment query through the Clearinghouse; and (2) manually reach out to the applicant's previous DOT-regulated employers to ask certain questions about that applicant's work history.
More specifically, when reaching out to previous employers, motor carriers have had to verify the following information:
Did this driver work for you and, if so, when?
While working for you, was this driver involved in any DOT-recordable accidents or any other accidents?
While working for you, did this driver violate the drug/alcohol testing rules? If so, provide us with information concerning whether the driver has completed the return-to-duty process.
These requests have come to be known as verifications of employment or previous employer safety performance history checks. And it's these verifications that are changing come January 2023.
In particular, as of January 6, 2023, motor carriers will no longer be required to manually request drug/alcohol testing information from an applicant's previous employers, as that information will be gathered exclusively through the Clearinghouse as of that date. That said, carriers will still have an obligation to ask the other non-drug/alcohol testing questions listed above of previous employers.
There are two caveats to this change. First, if a driver applicant has previously violated the drug/alcohol testing rules and has not completed the return-to-duty process, the motor carrier must still manually reach out to that driver's previous employers to request information concerning his/her follow-up testing plan. Second, if an applicant was previously subject to drug/alcohol testing under a different modal agency other than FMCSA (e.g., FAA, PHMSA, Coast Guard, FHWA, etc.), the prospective motor carrier must manually reach out to that applicant's previous employer to ask questions about the applicant's drug/alcohol testing history.
January 6, 2023, is not the last important date for the Drug & Alcohol Clearinghouse. As we discussed in a prior article, the FMCSA has implemented a new rule that requires state drivers' licensing agencies to begin taking action to suspend, downgrade, and deny drivers' CDLs when they learn through the Clearinghouse that those drivers are prohibited from operating due to a drug/alcohol testing violation. States currently have until November 2024, to implement this change.
On January 6, 2023, the federal Drug & Alcohol Clearinghouse will be deemed fully implemented. As of that date, motor carriers will no longer, except in limited circumstances, manually reach out to a driver applicant's previous employers to seek out drug/alcohol testing information. Instead, they will rely exclusively on the Drug & Alcohol Clearinghouse to access that data.
If you have questions about your obligations under the Clearinghouse rules or other components of the federal safety regulations, please feel free to contact us. Also, if you're interested in comprehensive online training on DOT compliance topics like driver qualification, hours of service, vehicle maintenance, drug/alcohol testing, and more, be sure to check out our library of courses through our Trucksafe Academy.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.