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Thursday, September 15, 2016

Final FMCSA Clearinghouse Regulation Release Imminent

By Thomas Eden

On May 20, the Federal Motor Carrier Safety Administration (FMCSA) sent to the White House Office of Management and Budget (OMB) its final rule that would establish a national database of truck drivers who have failed or refused to take drug and alcohol tests. Submission to the OMB if the final step in the approval process. The proposed drug and alcohol clearinghouse rule, originally published as a proposed rule February 12, 2014 would require motor carriers and other medical personnel to “report verified positive, adulterated and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results and information on follow-up testing.” The DOT recently updated to the definition of “Service Agent” under 49 CFR Part 40.3 in preparation for the final release.

FMCSA Employers will be mandate to search the clearinghouse for positive drug and alcohol test results, and refusals to test, on an annual basis for current employees and as part of the pre-employment process for prospective employees. Those same employers will also be mandated to upload positive result and refusals into the clearinghouse. Currently, employers must rely on information provided by the driver, and mandated contact the prior DOT employers, who might not disclose prior positive drug or alcohol test results, or refusals to test. That system is hit or miss at the best.

On September 14, 2016, at a conference of the Substance Abuse Program Administrators (SAPAA), the largest association representing in house drug and alcohol program administers, the Program Director for the Federal Motor Carrier Safety Administration (FMCSA), Juan Moya, announced that the final FMCSA Clearing House Regulation would be released shorty, but before the end of October 2016.

Common Sense Counsel: After the final clearinghouse regulations are issued employers will need to update their FMCSA policy, Forms toolkits, adopt various internal reporting and confidentiality protocols, conduct training and modify their Service Agent contracts.  This Proposed Regulation will touch every CDL holder and their employers and is the most significant regulatory change since 2001 when 49 CFR Part40 Regulations were adopted.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith and Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors, and as Legal Counsel, to the Substance Abuse Program Administrators Association. Tommy can be contacted at teden@constangy.com or 334-246-2901. Tommy drafts DOT and State Specific Drug Free Workplace Polices for Constangy clients nationwide and will be presenting a Constangy webinar on this topic after the final regulation release.