The Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse is fully operational, and mandatory use is in effect for all commercial truck fleets and owner-operators who require a commercial driver’s license (CDL).
On July 13, FMCSA released its latest Clearinghouse Monthly Summary Report, covering data reported through June 2020. The report includes information on the number of registrations, queries conducted, violations reported, and drivers in the return-to-duty (RTD) process. As of July 1, 122,190 employers and 38,719 owner-operators registered in the clearinghouse. For June, drug and alcohol violations reported in the clearinghouse totaled 25,761, with 25,168 drug violations and 593 alcohol violations.
The clearinghouse contains records of violations of drug and alcohol prohibitions, including positive drug or alcohol test results and test refusals. When a CDL holder completes the RTD process and follow-up testing plan, this information is also recorded in the clearinghouse.
According to the rule, which took effect on Jan. 6, 2020, commercial trucking employers must conduct annual queries by Jan. 5, 2021, and employers of CDL drivers must conduct a query of the clearinghouse at least once a year for each CDL driver they employ.
While it appears as though there has been a lot of activity reported to the clearinghouse, Shannon Wheeler, legal counsel for Tenstreet, an integrated driver recruiting software and solutions provider for trucking companies, and Marilyn Surber, transportation leader at Tenstreet, are attempting to debunk some of the common misconceptions they’ve heard.
Breaking down the misconceptions
Although the industry knew the clearinghouse was coming, less than three months into the new rule, the COVID-19 pandemic rattled global supply chains and disrupted business and life as usual. Wheeler explained that the pandemic has only created more uncertainty around the new rule.
“From a trucking perspective, I think COVID-19 has added more to the confusion because of all the exemptions floating around now,” Wheeler said. “People think there must be [regulatory] leniency on everything.”
Wheeler recently wrote a blog debunking the six most common clearinghouse misconceptions the company hears regularly:
- All clearinghouse third-party administrators (TPAs) are the same.
- Clearinghouse queries are optional.
- Some fleets think they only have to run limited queries on drivers they hire and don’t have to run a full query unless they get a hit.
- Some fleets believe that since the driver signed the written consent with their application, that’s all fleets need to get a full query.
- Once a driver’s full query comes back as “not prohibited,” some fleets believe they don’t need to do anything for a year.
- Some feel they don’t need to go back and run queries for drivers hired when the clearinghouse was having technical difficulties.
“We hear so much from clients that they think the clearinghouse is voluntary,” explained Wheeler. “That’s the one we get the most. Some trucking companies don’t have guidance or legal counsel, and some of them are just doing the best they can every day to keep their trucks filled and on the road. So, we try to offer as much help as we can.”
Wheeler said there is also a lot of confusion around the difference between a full query versus a limited query. For a full query, a driver must complete the registration process with the clearinghouse, which requires that they set up an account, enter authentication information, and verify their CDL. Once a driver goes through the registration process, they then must provide consent within the clearinghouse to release the full query information to a requesting carrier. Once that occurs, the carrier will receive the results of the full query.
For limited queries, consent must be in writing and signed by the driver (an electronic signature works). Since carriers will eventually need the limited query consent signed by all drivers to comply with the annual requirement, most carriers get the limited consent signed in connection with the application so it’s on file when a limited query needs to be run, Wheeler explained.
The annual query requirement is tracked on a rolling 12-month basis. The one-year time frame resets with each query conducted on a driver.
In addition to annual queries, employers are required to conduct a pre-employment query before hiring a CDL driver. FMCSA has posted a downloadable Queries and Consent Requests Factsheet.
When it comes to TPAs, Tenstreet noted that not all are the same, but a good TPA can streamline the process for fleets and owner-operators. It’s also important to note that a carrier can do the process themselves, but owner-operators must have a TPA, according to the rule.
“If owner-operators are not leased onto anyone, they need to make sure that someone writes their reports and runs a clearinghouse check on them,” explained Wheeler. “The rule is written so the owner-operator cannot run a check on themselves. Otherwise, they could get around the reporting obligations.”
When a driver’s query comes back as not prohibited, what should fleets do immediately?
For the next 30 days it is important for fleets to know that they will get an update, and they will need to go into the clearinghouse and check that update.
“We have seen some instances where a carrier got an update and didn’t do anything with it because they didn’t know what to do,” explained Wheeler. “It’s important to go in and check what that update is to see if that driver is even still allowed to be operating.”
“If you are really looking to be consistent and monitor your drivers, the regulations don’t require that you do anything for year when you have to run a limited query,” Wheeler added. “But if you want to ensure that no violations are reported for your drivers, having a process when you run the limited query for your driver, rather than just running the query for the one year, can be a really good idea for the protection of your company to make sure the driver didn’t have a violation after the 30 days or throughout the year. It doesn’t have to be every month, but it could be done every quarter or at least every six months. It’s a good idea from a risk-management standpoint.”
That’s when implementing a clearinghouse process could be helpful. Because when it comes down to it, if there is an accident, plaintiffs’ attorneys will investigate what steps the trucking company took to keep the roads safe and ensure that their drivers weren’t in violation, Wheeler emphasized.
Under the rule, owner-operators and the companies they are driving for have to comply. If an owner-operator has their own Department of Transportation (DOT) number and is operating under their own authority, they should have a full-service TPA that helps them manage the entire process, as well as all the other drug testing requirements, according to Tenstreet.
“There are so many different levels of what it means to be an owner-operator,” noted Wheeler. “Some are truly on their own under their own DOT and have five to 10 trucks that actually work for them, and others don’t have their own authority and they operate under the authority of the company they work for.”
“If we think trucking companies are confused about what they should be doing, I think owner-operators are probably even more confused because it is a little bit murkier,” added Surber.