New Drug and Alcohol Reporting Requirements for Transportation Companies in 2020
In 2016, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) announced a new rule establishing a database for information regarding violations of drug and alcohol testing regulations by commercial motor vehicle drivers. While the rule went into effect in 2017, the requirement for FMCSA-regulated employers to begin searching and reporting on this database did not take effect until January 6, 2020.
Therefore, regulated employers are now required to report information regarding any violations of the DOT’s drug and alcohol regulations through the FMCSA’s database (called “Clearinghouse”). This will allow employers to identify drivers who are prohibited from operating a vehicle because of prior violations.
“Regulated employers” include employers in the trucking or transportation industry who either hold a Commercial Driver’s License (“CDL”) themselves or whose employees hold a CDL, and who operate a commercial motor vehicle(s) in any state which has (1) a gross vehicle weight of 26,001 pounds or more, or (2) is designed to carry 16 or more passengers (including the driver), or (3) is involved in transporting hazardous materials.
Regulated employers must first register with Clearinghouse.
The employer must then search Clearinghouse for all current employees to see if there are any violations which would bar those employees from operating a commercial motor vehicle.
The employer must also complete “full queries” for any prospective employees who are expected to be operating commercial vehicles. Employee-drivers are required to log into Clearinghouse and give his or her consent every time there is a full query request for records. For all new CDL hires, the employer must also send the employee for a drug test and receive a negative drug test result before allowing the employee to operate a commercial vehicle. For 3 years following implementation of Clearinghouse (until January 6, 2023) employers must still manually inquire with prior employers regarding drug and alcohol violations of potential drivers.
Employers are then additionally required to conduct an annual search on Clearinghouse to check on the status of all of their current employees. That search can be a “limited query” which just seeks whether or not there are any records for the driver in the database. If there are, the employer will need to do a full query. While consent is always required from the employee, the employer can include a consent form in the employee’s personnel file to cover future Clearinghouse searches. Also, a driver must consent in order to continue with employment as a driver.
The employer must report violations by employees of drug-testing regulations, such as if a test came back positive, if the employee refused to take a test, or if the employer has actual knowledge of a violation. These reports of a violation must be made within 3 business days after the employer became aware of the violation. Employers are required to have CDL drivers randomly tested throughout the year. Also, if there is a reasonable suspicion that a driver appears to be under the influence, the employer may require the CDL driver to immediately be tested.
If a CDL driver tests positive or refuses to be drug tested, he or she must go through a “Return-To-Duty” process with a DOT-qualified substance abuse professional and test negative in order to return to work as a driver.
An employer’s failure to comply with these FMCSA Clearinghouse requirements may be subject to penalties, including a $2,500 penalty per offense. Therefore, employers need to amend their drug and alcohol testing policies to explain that violations will be noted, maintained, and reported to Clearinghouse within 3 business days. The information provided will include the test result, the alcohol concentration level, whether there was a refusal to test, whether there was actual knowledge of alcohol or controlled substance use, the substance abuse professional’s report regarding the return-to-duty process, and the employer’s reporting of the completion of follow-up testing.
The attorneys at McLaughlin & Nardi, LLC are experienced with New Jersey commercial transportation, and employment laws, and can advise both employers and employees about their rights and responsibilities under these regulations. To learn more about what we may be able to do to help, please visit our website, or contact one of our New Jersey lawyers by e-mail or telephone at (973) 890-0004.