>>>Curious About the Proposed FMCSA Database… Implications Section From 382.701
This new and Final Rule is effective January 4, 2017 with a compliant date of January 6, 2020. Even though that date seems to be far off, it will take time for all involved parties to prepare for this event. That means the updating of policies, education of involved parties, updating of computer systems as necessary along with a myriad of other things.
Because of this time line, it is necessary to examine each segment of this new regulation so CDL holders and motor carrier companies will be prepared to be compliant by the time that the compliance date of January 6, 2020 is here.
The first segment concerns the drug and alcohol clearinghouse as stated in 49 CFR 382.701. This section is complex and employers should be read carefully and address this in their policies and develop procedures for this section.
Most important drivers cannot be hired without first conducting a query of the database to check for any drug test or alcohol test violations for any tests that were conducted as required in Part 382. The employer must conduct a full query of the driver being hired. This requires that the driver gives specific consent.
There is another important query that is required by the database that all employers. All employers are required to do an annual query once a year for all employees who are subject to the testing requirements to see if there is any information in the database about their employees.
An employer in place of a full query, may obtain the driver’s consent to do a limited query. This will satisfy the requirement to do an annual query. The limited query will tell the employer if information is present about an individual driver in the Clearinghouse. The database will not release that information to the employer unless the drivers has given consent for the for that limited information release. If the driver has given consent for a limited query, it is effective for more than one year.
However, if information is revealed in the limited query, the employer is required to conduct a full query within 24 hours of the doing the limited query. If the full information request cannot be conducted within 24 hours, the employer required to remove the driver from all safety sensitive functions until a full query is done and that shows there is no prohibitions on the individual driver’s record.
As an additional safety measure, employers will be notified if any information is entered into the database after the query by FMCSA. This notification period is good for only 30 days following the query by the employer.
An employer may not allow a driver to perform any safety sensitive function if the query demonstrates that there is a drug or alcohol test violation as stated in 49 CFR part 382. except where a query of the Clearinghouse demonstrates:
However, if the query of the demonstrates that the driver has completed the Substance Abuse Professional (SAP) evaluation, referral and education treatment processes along with passing a Return to Duty test and successfully completed the follow-up testing plan as required by the SAP, the driver can work in safety sensitive function.
If the driver has not completed the follow-up tests as required by the SAP, but has completed all of the other SAP requirement, the employer will accept responsibility for managing the Follow-up test requirements.
There is a recordkeeping requirement where employers are required to maintain for three years each query and response to each query made in accordance with this section. On January 6, 2023, this requirement will be fulfilled for employers who have maintained a valid registration.
This completed the discussion about Section 382.701 and with more article that examine and discuss the other sections.
Robert C. Schoening
Bob is well renowned for his knowledge and influence in the drug-testing arena. As the Drug and Alcohol Program Manager for the US Coast Guard (December 2001-March 2013) he developed and managed a successful drug testing program for the marine industry nationwide and internationally. During this time he developed and implemented a new compliance audit checklist as well as the writing and publishing a new Marine Employers Guidebook for Drug Testing. He is also the author of the federal regulation commonly known as the two-hour alcohol testing for maritime incidents.