The DOT Clearinghouse, mandated by the Moving Ahead for Progress in the 21st Century (MAP-21) highway bill of 2012, went into effect this month. But what does this new regulation mean for employers? And how will their pre-employment requirements change once this rule going into effect? In an attempt to offer some clarity on these changes, we have outlined a few of the new requirements below.
FMCSA Clearinghouse Reporting
To start with, employers, as well as the other players in FMCSA-mandated drug and alcohol testing programs, will have new reporting requirements in regards to testing. FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals (SAPs), Consortiums/Third party administrators (C/TPAs) or their designated representatives will now be required to report any adverse drug and alcohol testing information to the FMCSA Clearinghouse. This includes any positive drug results, any alcohol results with a blood alcohol content greater than 0.04, refusals to test, and any other non-test violations of FMCSA’s drug and alcohol regulation. Employers will have to submit a report of a drug or alcohol program violation by the close of the third business day following the date on which the employer obtained the information.
In addition, employers will be required to report any “actual knowledge” violations to the DOT Clearinghouse, along with documentation that includes the date of the violation, a detailed description of the event, an approximate time the violation occurred, the names and contact information for any corroborating witnesses and evidence to support each fact alleged in the description of the violation. If they are unable to provide tangible written, video or audio evidence, the employer must attest to each alleged fact in an affidavit. This will also be required within three business days following the triggering event and the employer must verify that they provided all of this evidence to the employee.
In addition, there will be strict regulations around the time frames for reporting results from the MRO. For instance, if a previously reported test is later canceled by an MRO, he/she will have one day to report this change to the DOT Clearinghouse.
Running DOT Clearinghouse Searches
The new rule will add a step to how employers hire drivers as well as how they maintain the records for their current safety-sensitive staff. To start with, all FMCSA safety sensitive companies will have to register with the DOT Clearinghouse, including identifying their C/TPA. This is an important consideration for owner/operators who will have to designate a C/TPA before they will be able to register for the DOT Clearinghouse and comply with the regulation.
Employers will be required to query the system through an online search of the FMCSA Clearinghouse for violations that would prohibit the driver or prospective driver from performing safety-sensitive functions, such as driving a CMV. This query must be run on every prospective driver before they are able to perform safety sensitive functions. In addition, employers will be required to query the database at least once a year for their current employees. An employer will need to register their company and pay a fee (still undetermined) for access to the DOT Clearinghouse. A prospective employee will also need to log into the Clearinghouse and authorize the release of his/her records to a particular employer.
The DOT Clearinghouse offers two types of queries to employers: a full or a partial. The full query requires the driver’s specific consent to release the information in the Clearinghouse to the requesting party and it covers all the records that the Clearinghouse contains. A limited query allows an employer to determine if any information about an individual driver exists in the DOT Clearinghouse, but does not provide for the release of any specific violation information.
Drivers Use of the DOT Clearinghouse
The DOT Clearinghouse offers some added clarity and protection to the drivers it covers that should be mentioned. Drivers will have the ability to register and query the database to review their own records or determine the status of information in their record at no cost. In addition, the DOT Clearinghouse will notify a driver by mail (unless they have opted to receive electronic notifications) any time information about the driver is added, revised, or removed. Another important feature of the FMCSA Clearinghouse for drivers is the way their information is categorized. Rather than utilizing Social Security Numbers, the FMCSA Clearinghouse will store driver data by CDL number and date of birth.
Conclusion
As the implementation date approaches, it is important for FMCSA-regulated companies to familiarize themselves with the new DOT Clearinghouse regulations and to make appropriate changes to their policies and procedures. Here at Foley, we’ll be working with current customers to update their policies and ensure they fully understand the implications of the DOT Clearinghouse on their business.
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