Authors: Devin Wehrle, Shandra Czarnecki, Sarah Carr, Dany Théberge
NEW CHANGES: What is the Drug and Alcohol Clearinghouse?
Does your business employ commercial drivers operating in the United States?
Effective January 6, 2020, employers regulated by the Federal Motor Carrier Safety Administration (“FMCSA”) will be subject to mandatory reporting requirements under the new Drug and Alcohol Clearinghouse (“Clearinghouse”) program mandated by the Department of Transportation (“DOT”).
The Clearinghouse comes as an update to the Omnibus Transportation Employee Testing Act passed in 1991, which requires DOT agencies, including FMCSA, to implement drug and alcohol testing in safety sensitive workplaces. The Clearinghouse is an electronic database that will grant FMCSA-regulated employers access to information about drug and alcohol violations of current and prospective employees (i.e., commercial driver’s license holders). The database will also contain information confirming whether a driver has completed the return-to-duty (“RTD”) process and follow-up testing plan to remedy his or her violation.
The database was developed to create continuity and transparency in monitoring commercial driving records – the database tracks and links a driver’s record and commercial licenses from any state. The intent is to prevent drivers who have violated the drug and alcohol DOT requirements from job-hopping from one carrier to another without first having remedied the violation.
There are no changes to existing requirements set out in Part 40 of the Code of Federal Regulations relating to DOT-wide workplace drug and alcohol testing procedures. The Clearinghouse will only include violations that have occurred on or after January 6, 2020 – any violation that occurred prior to that date, and any subsequent related RTD activity, will not be included in the database. As such, employers must continue to also conduct traditional, manual inquiries with previous employers in order to comply with the 3-year timeframe requirement of § 391.23. Effective January 6, 2023, only a query of the Clearinghouse will be necessary since the online database should wholly contain the requisite commercial drivers’ records for the preceding 3-year period.
What obligations should commercial drivers fulfill?
Driver co-operation will be integral to the successful implementation of the new database. Although not required, it is recommended that drivers register immediately with the Clearinghouse, and as of January 6, 2020, respond quickly to query requests from employers. Only once registered may a driver access the database to view his or her driving record or provide consent to query requests.
What obligations must FMCSA-regulated employers fulfill?
Employers will be required to conduct a full query of the Clearinghouse during any pre-employment driver investigation process and to conduct a limited query for every employee in its employ on an annual basis. The employee’s consent will be required prior to conducting any full query.
Employers will also be required to report to the Clearinghouse any drug and alcohol program violations of which employers have actual knowledge, and record any negative RTD test results and the date of successful completion of a follow-up testing plan. A violation will be recorded in the Clearinghouse for five years from the later of the following: the date of the violation determination or the date of the resolution of the RTD process and follow-up testing plan.
Employers should register online for the Clearinghouse and look into purchasing query plans before January 6, 2020. There is a fee associated with each employer search of the database, both limited and full queries, but there is no registration fee.
Employers should also review and revise their drug and alcohol policies to refer to the new Clearinghouse requirements, including a sign off for employees to provide the consent required for all queries. While consent is only required under the Clearinghouse rules for a full query, employers are subject to additional obligations under Canadian legislation and should obtain consent for all Clearinghouse queries.
Employers should consider seeking legal advice to ensure compliance with all of their obligations under the FMCSA, the Clearinghouse and Canadian legislation. Our team of labour and employment lawyers can help your organization adapt to the implementation of the Clearinghouse.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.