Webinar: How the DOT Drug and Alcohol Clearinghouse will affect my company today

WEBINAR SERIES
503-479-6082 | www.cleanfleet.org

DOT Drug & Alcohol
Clearinghouse
by Lukas Shaw, CleanFleet

What is it?
1. The Clearinghouse is a collection of positive and
refused drug tests, including information related to the
eligibility of safety functions for CDL drivers.
2. Effectively the purpose of the Clearinghouse is to
provide a tool for employers to ensure that they are
hiring and employing drivers who are following
guidelines related to drug and alcohol use.

What gets reported?
1. A verified positive, adulterated, or substituted controlled
substance test
2. Refusal to test (includes failure to appear)
3. A verified positive BAT above .04
4. DUI citation in a CMV
5. DUI conviction in a CMV
6. Actual knowledge of illicit alcohol or drug use
7. Negative return-to-duty
8. Completion of follow-up
?

When will it go into affect?
• The DOT hopes to have the website active by Jan. 2020,
giving three years for companies to begin getting
compliant
– This includes changing the language of pre-employment
background investigation to include
• CDL (or ID number for website)
• Permission for initial full query
– Employers will be required to query Clearinghouse and request
drug and alcohol testing histories from previous employers
(going back 3 years) until 2023, at that point the Clearinghouse
will be enough
– Employers still need to request the testing plan for drivers
confirmed to be on a follow up plan (won’t be available on
Clearinghouse) from previous employers or the SAP

Support and Opposition
The DOT reached out to 165 commenters for this rule.
• Support: 97 commenters voiced support including:
• 27 Individuals
• 26 Trade associations
• 23 Service agents
• 13 Employers
• 3 Safety Advocacy Organizations
• 2 Trade Unions
• The NTSB
• A US Congressman
– Majority of supporters cited improved safety, deter job hopping,
and an improved access of information for employers to hire
safe, qualified drivers

Support and Opposition
• Opposition: 10 commenters expressed opposition
– Majority of opponents were drivers that expressed concerns about
overlapping reporting responsibilities and lack of sufficient time for
reporting info.
• Cost: Final Regulatory Impact Analysis
– $196 million benefit (Reduced number of drug and alcohol related crashes)
– $154 million cost
• Largest portion of this ($56 million) is driver incurred cost related to follow up
programs and lost wages
• This estimate assumes that the current rate of 25% remains the same as the
estimated number of positive tests is 10,000 rather than 28,000 at 50%

Who has access?
• Employers and designated TPA’s
– For both limited and detailed queries, permission is
needed from the driver and each query will have a cost
(estimated $2.50)
– Employers are not allowed to have employee’s give blanket
permission to them for unlimited queries
• Drivers will also have access to their own records at
no cost
• DOT officials with regulatory authority

Why query the database?
• Pre-Employment Screening
– Employers will be required to run detailed queries in order
to make sure drivers they are planning to hire do not have
outstanding positive test results
• Annual Screening
– Employers will also be required to run limited queries for
current drivers at least once a year to determine whether
information exists in the Clearinghouse about those
employees
– If the limited query returns any results, a detailed query is
required

How will this affect my business?
• Employers
– Must register authority with Clearinghouse
– Before making a hiring decision, you will need to query
potential candidates with their CDL numbers in the
Clearinghouse
• Driver’s permission and detailed query is required
– Every year, every driver you have employed, must be
queried to find new information
– Must keep up-to-date records regarding actual knowledge
including DUI citations and convictions

• Drivers
– Must allow for queries regarding record of drug and
alcohol testing
– Must alert employer(s) or prospective employer(s), in
writing, of violations
• Except if employer administered the test

• TPA’s/MRO’s/SAP’s
– Must be registered with Clearinghouse
– TPA’s must report positive tests of owner operators, and all
refusals to Clearinghouse
– MRO’S must report verified positives, adulterated or
substituted test results
– SAP’s must report completion of return to duty process

What happens when a limited query
requires a Detailed query?
• Employers must get permission from the driver to
get a detailed query that will give details about the
driver’s results
• Detailed query must be done within 24hrs
– For active employees, if it is not done, driver must be
pulled from safety functions until query is completed
– May resume once driver is cleared

What happens when a Detailed query
returns positive results or refusals?
• Employers must ensure:
– The driver has seen a SAP
– The driver completes a return to duty test
– A copy of the follow up plan from the SAP is obtained
– If the driver does not comply with the follow up plan,
knowingly using the driver will result in penalties from the
DOT
• An employer cannot use an employee to operate a
CMV having not completed the return to duty
process

What are the penalties?
• Non-compliant employers and drivers will be subject
to the penalties laid out in 49 USC 521 (b)(2)
– This provision 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

What if there’s a mistake in the database?
• Drivers have the right to challenge reported results
for 3 items
– If something has been reported multiple times, not the
actual results
– A DUI citation that did not result in a conviction
– An employer reporting a violation based on actual
knowledge
• Employers will receive a notification for drivers
queried in the last 30 days
• Drivers will receive notification every time their
record has been updated

What changes are needed by 2020?
• Employers
– Be sure CDL information (number and state of origin) is in
driver file and easily accessible
– Make changes to hiring information that includes consent
from drivers to do an initial detailed query, and include the
details for which an employer will report results to the
Clearinghouse
– Train DERs and safety officers on the required
documentation for reporting “actual knowledge” of drugs
or alcohol use while operating a CMV

What are changes I can start now to be
compliant by 2020?
• Drivers
– Be prepared to use CDL Number when testing
– Employers will require you to give consent whenever
needed to run a full query
• Refusing to give consent will result in not being able to
perform safety sensitive functions with that employer

Other FAQ’s
• Will employers have to report non-DOT tests to the
Clearinghouse?
– No. The authority granted by Congress has language specific to DOT
violations only
• Is there a concern of a HIPPA violation?
– No. HIPPA only effects; health plans, health care clearing
clearinghouses or a health care provider that transmits health
information electronically.
• Can the Clearinghouse be used to check drivers operating
CMV’s less than 26,000? What about employee’s that don’t
operate CMV’s at all?
– No to both. The authority of the Clearinghouse only pertains to
drivers operating safety functions in CMV’s governed by 382.103.
Nothing in the congressional authority goes beyond that.

Other FAQ’s
• Do positive BAT tests between .02 or .039 need to be
reported?
– No. 49 CFR 382.505(a) is clear that although this driver cannot
perform safety functions, this is not a violation of FMCSA rules that
requires return to duty process. However, a test above .04 is a
violation, and must be reported.
• If a driver has multiple employers, who is responsible for the
annual query?
– It doesn’t matter if a driver has multiple employers, each employer
must do a query of the driver. Employers are not permitted to share
results of the queries with each other.
• If a driver works for another company, under the jurisdiction
of another authority, are those test subject to inclusion in the
Clearinghouse?
– No, it only includes tests done under the jurisdiction of the FMCSA.

Other FAQ’s
• Is there any time where a negative result needs to be
reported to the Clearinghouse?
– The only instance where a negative result is necessary is the return-to-
duty test. That is because that result effect’s a driver’s eligibility to
perform safety functions. No other time should a negative result be
reported.
• Will non-payment result in cancellation of an account?
– The FMCSA has determined that employers will pay for services,
before they are remitted
• If employers change C/TPA’s, what must they do?
– Alert the Clearinghouse within ten days, and issue permission to the
new C/TPA to input data on their behalf

Questions?
Lukas Shaw
lukass@cleanfleet.org
www.CleanFleet.org
503-479-6082

Reasonable Suspicion
Training
Did you know that Americans consume 60% of the world’s production
of illegal drugs or that 10-20% of the nation's workers who die at work
also test positive for drugs or alcohol?
When was the last time your managers
of CDL drivers gone through RST?
This class is REQUIRED for DOT and highly valuable for companies
not Federally regulated
Online or Live Webinar Training!
LEARN MORE
http://cleanfleet.org/workforce-reasonable-suspicion-training/

Upcoming Webinars
Mar 23rd, 2017: The Cost of Marijuana in the Workplace
Apr 20th, 2017: What is Oral Saliva Testing and why should I care?
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Webinar: How the DOT Drug and Alcohol Clearinghouse will affect my company today