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Queries and Quandaries: The Clearinghouse and Driver Consent

In a legal climate where the case is never about the facts and always about compliance, a good understanding of the Commercial Driver’s License Drug and Alcohol Clearinghouse and how to use it is crucial.  Unfortunately, the new regulation is as easy to follow as GPS without a cellular signal.   From Part I of this article, we know the purpose of the new FMCSA Clearinghouse is to assist Motor Carriers in verifying qualified drivers and that all employers of commercial drivers must utilize the Clearinghouse.  The FMCSA announced open registration to the Clearinghouse on October 1, 2019, approximately three months in advance of the January 2020 roll out for the program.  Register here: https://clearinghouse.fmcsa.dot.gov/.

The Clearinghouse will primarily come into play when hiring qualified drivers.  49 CFR §391 requires motor carriers to ensure and verify their drivers meet minimum requirements before operating a vehicle.  Section 391.15 provides “A driver who is disqualified shall not drive a commercial motor vehicle.  A motor carrier shall not require or permit a driver who is disqualified to drive a commercial motor vehicle.”  The section then identifies specific instances which disqualify a driver for loss of driving privileges, including instances of revocation, suspension, withdrawal, or denial of his or her license and various qualifying offenses, most of which include driving while under the influence of alcohol or a Schedule I controlled substance. Section 391.23 details how a motor carrier can investigate the driver it employs, regarding the driver’s license, safety performance history, and motor vehicle record.  Section 391.23(d)(4) provides “As of January 6, 2023, employers subject to 382.701(a) (Drug and Alcohol Clearinghouse provisions) of this chapter must use the Drug and Alcohol Clearinghouse to comply with the requirements of this section with respect to FMCSA-regulated employers.”

So what does this mean? Basically, a potential new hire submits an application. The motor carrier’s team goes through the normal process to qualify the driver and determine if they are a good hire – does the application and the driver meet all the FMCSA requirements (including that the application is completed and signed); inquiry is made to previous employers for safety performance history with appropriate documentation made in the Driver Qualification file; inquiry is made to relevant state agencies for the driver’s motor vehicle record with appropriate documentation in the Driver Qualification file; a road test or equivalent is completed; the driver completes a medical examination by a certified examiner and the Medical Examiner’s Certificate is placed in the Driver Qualification file and provided to the relevant state agency; inquiry about drug and alcohol tests is made AND INQUIRY TO THE CLEARINGHOUSE IS MADE ONCE CONSENT IS OBTAINED FROM THE DRIVER.  Most notably, before inquiry is made to the Clearinghouse for a driver’s pre-hire information, the driver must provide consent.

FMCSA has provided a factsheet describing the various types of queries related to drivers and the consent required: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Query-Consent-Factsheet.  It is important to note that all queries require driver consent, but the type of consent varies dependent on the information sought.  For instance, a pre-employment check on a potential hire requires consent by the driver to be made electronically within the Clearinghouse by the applying driver.  (The driver has to get online, set up an account, and check a box that they allow employers to check their records.)  If the prospective driver refuses to give consent, the query to the Clearinghouse cannot be conducted and the driver cannot perform or should be removed from safety-sensitive functions.  Alternatively, if a Carrier is using the Clearinghouse to perform an annual check of an employed driver, the FMCSA has provided the following suggested consent form, which should be obtained from a driver and placed in the driver’s Driver Qualification file: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Sample-Limited-Consent-Form.

Additional resources related to the Clearinghouse can be located at https://clearinghouse.fmcsa.dot.gov.

 Additional resources related to driver qualifications and hiring can be found at https://csa.fmsa.dot.gov/safetyplanner

For questions or comments regarding FMCSA compliance, including the new Clearinghouse, please feel free to contact Amy Tracy (atracy@setlifflaw.com) at 804-377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.