Drug Testing Clearinghouse and AB5 Update

by gspencermynko

Drug and Alcohol Clearinghouse

What All Trucking Companies Need To Know.

“The Clearinghouse, is a web-based system that will provide FMCSA and employers of commercial motor vehicle (CMV) drivers” the ability to “identify drivers who are prohibited from operating CMVs due to DOT drug and alcohol program violations.” The Clearinghouse also documents that drivers have been green-lighted to again drive a CMV on public roads. “Information maintained in the Clearinghouse will enable employers to identify drivers who commit a drug or alcohol program violation while working for one employer, but fail to subsequently inform another employer. Records of drug and alcohol program violations will remain in the Clearinghouse for five years, or until the driver has completed the return-to-duty process, whichever is later.” See https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/privacy/345191/fmcsa-drug-and-alcohol-clearinghouse-2019-pia-1.pdf.

What Employers Need To Do.

1) Employers will conduct pre-employment inquiries on prospective employees and if drug and alcohol violations are identified, those employees will be prohibited from performing safety-sensitive functions, until successful completion of the return-to-duty (RTD) process. Safety-sensitive functions are defined in
49 CFR § 382.107 as the time from when a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions include the time a driver is driving a CMV on public roads.

2) Employers will query the Clearinghouse annually for each driver they currently employ, and if drug and alcohol violations are identified, those employees will be prohibited from performing safety-sensitive functions until successful completion of the RTD process;

What The State and Federal Govenments Do.

3) State Driver’s License Agencies (SDLAs) will query the Clearinghouse before issuing, renewing, transferring, or upgrading a CLP or CDL;

4) When requested by the National Transportation Safety Board (NTSB) as part of a crash investigation, FMCSA will provide NTSB information contained in the Clearinghouse concerning drivers who are involved in the crash under investigation.

Employers may designate assistants to query, and/or report, within the Clearinghouse. Assistants will receive an invitation from their employer to register for a Clearinghouse account once an account and permissions have been established for them. The Assistants will not be able to register for a Clearinghouse account unless they receive an invitation. Once an assistant receives an invitation, he or she may login to the Clearinghouse using login.gov on behalf of their employer.

When and What Must A Trucking Company Report To The Clearinghouse?

An alcohol confirmation test with a concentration of 0.04 or higher

Refusal to test (alcohol) as specified in 49 CFR 40.261

Refusal to test (drug) not requiring a determination by the MRO as specified in 49 CFR 40.191

Actual knowledge, as defined in 49 CFR 382.107, that a driver has used alcohol on duty, used alcohol within four hours of coming on duty, used alcohol prior to postaccident testing, or has used a controlled substance

Negative RTD test results (drug and alcohol testing, as applicable)

Completion of follow-up testing

Employers, including a driver who employs himself or herself, are required to report the following information to the Clearinghouse:

1. Reason for the test;
2. Driver’s name, date of birth, and CDL/CLP number and state of issuance;
3. Employer name, address, and USDOT number;
4. Date of the test;
5. Date of verified result;
6. Test category
7. Date the result was reported; and
8. Test result.

Notably, there are ways and reasons by which a CMV Driver may challenge the information in the Clearinghouse. As a Transportation Lawyer and Certified DOT Medical Examiner, I am in a unique position to comment and advise on the legal AND medical aspects of drug and alcohol testing of CDL Holders.

Recent Developments In The CTA’s Battle Against AB 5

The CTA issued an AB5 “Litigation Update” after the State and Teamsters’ failed to convince Judge Benitez to essentially overturn his injunction on the enforcement of AB5 and dismiss the CTA’s lawsuit.

I will simply quote from the CTA’s news release:

“…[T]he Court denied the Teamsters’ request for a stay of the preliminary injunction, which means the State is still prohibited from enforcing AB 5 as it relates to motor carriers.”

In denying the State’s motion to dismiss the CTA’s lawsuit, “the Court found that [the] CTA has standing and may pursue the FAAAA preemption claim.”

So basically the CTA’s lawsuit based on FAAAA preemption of AB 5 is still very much alive and well.