Legal Disclaimer: The following information is offered as educational information only and does not constitute legal advice. We recommend that you consult with qualified legal counsel on all of the issues, laws, and regulations we talk about. Tenstreet expressly disclaims any warranties associated with this presentation or the information provided herein.
Interpreting the new FMCSA Drug & Alcohol Clearinghouse regulations, following them correctly so you stay compliant, implementing the required steps into your existing processes and ensuring things flow smoothly – these are all the things that go bump in the night.
How will you educate and train your team, your drivers, yourself – and have everything in place by January 6th, 2020 so you’re sure to hit the ground running?
Tenstreet as your Third Party Administrator (TPA)
Last week we held a webinar, 7 Ways Tenstreet Will Help Make the FMCSA Drug & Alcohol Clearinghouse Regulations Easier, that guided our clients through each new FMCSA Clearinghouse requirement and talked through how Tenstreet can help in four areas – awareness, recruiting, onboarding, and post-hire.
Once you designate Tenstreet as your TPA for the Clearinghouse, rest assured you’ll get the full night’s sleep you deserve. Let’s step through the process starting with the first step, registration.
1. How will we help drivers register? How will we know if they already have?
Driver education is one of the biggest requirements of the Clearinghouse. Carriers are required to educate CDL drivers on the Clearinghouse and explain how they could be negatively affected (e.g. if they don’t register or refuse to grant consent to query requests).
How Tenstreet will help with registration:
Tenstreet will bring awareness and transparency to the registration process, starting with communicating the requirements and educating drivers using three different methods::
- Driver Pulse – leveraging the Driver Pulse mobile app to help educate drivers about these changes is instrumental and is the most effective form of driver outreach. Drivers who use this app have already started receiving push notifications to their phone to inform them about the importance of registering and showing them how to do so.
- Text – if a driver doesn’t use Driver Pulse and we have their phone number on file (and they’ve opted into texting), we’ll send them the communication via text.
- Email – If we don’t have their phone number (or they haven’t opted into texting), but we do have an email address on file, they’ll receive an email.
A new driver-facing blog will also be added to help educate drivers on what the Clearinghouse means to them. This blog is not only accessible from Tenstreet’s Driver Blog, but will also be available to read inside the Driver Pulse app.
2. How do we get the limited query consents signed by all our drivers?
Limited queries are an initial Clearinghouse check for the presence of driver information regarding resolved or unresolved drug and alcohol program violations. Here’s a rundown of the limited query requirements:
- Carriers are required to run limited queries for all currently employed CDL holders annually,
- Carriers are required to get written consent from the driver (that can be electronically signed) prior to running a limited query of the Clearinghouse,
- Carriers are required to maintain the Clearinghouse written consent in the driver’s Driver Qualification File,
- Carriers are required to remove drivers from all safety-sensitive functions if the driver refuses to sign the Clearinghouse written consent,
- Finally, carriers must conduct a full query within 24 hours if the limited query returns any results.
3. How will we meet the full query requirements to and from the Clearinghouse?
Full queries are required:
- as a pre-employment check on all prospective drivers
- when a limited query returns results
Full queries provide detailed information about any drug or alcohol violations that have been reported to the Clearinghouse and electronic consent will need to be provided from the driver within the Clearinghouse, unlike a limited query. However, like a limited query, carriers are required to remove drivers from all safety-sensitive functions if consent is refused, or if there isn’t a return-to-duty (RTD) status returned on a previous violation.
How Tenstreet will help with limited and full queries:
Once you designate Tenstreet as your TPA, you’ll have an integrated one-step ordering and delivery process that will be available for all applicants and current employees.
We’ll be able to get limited query consents signed by your drivers by:
(a) adding the limited query consent form to the application to get limited query consents for all incoming applicants, and
(b) providing a way to easily obtain a limited query consent form on all your current employees.
As expected, all of the required files will be digitally stored in each driver’s respective DQF. With Tenstreet as your TPA, we can run limited and full queries of the Clearinghouse for you. When a full query is required, Tenstreet will obtain them by working directly with the driver and the Clearinghouse to deliver the results to your dashboard.
4. How will this affect our adverse action process?
A key part of employer compliance with FCRA regulations is the required notification to applicants of their rights regarding use of consumer reports (MVR, Criminal Records, DAC Employment History, etc.). The regulations advise that Clearinghouse results qualify as an “excluded communication”, meaning you would need to follow the “subsequent disclosure” requirements of the FCRA.
The adverse action process meets this “subsequent disclosure” requirement. This means that if you decide to take adverse action (i.e. not hiring, terminating, or suspending a driver) the best practice would be to follow the recommended two-letter adverse action process required by the FCRA and including the Clearinghouse results as one of your files included in the pre-adverse action letter to the driver.
How Tenstreet will help with Adverse Action:
The Adverse Action service through Tenstreet enables these reports to be handled automatically within your recruiting workflow and meets the “subsequent disclosure” requirement. Good news: if you already use Tenstreet’s Adverse Action service, you’re covered, contact your Account Manager if you’d like to add the Clearinghouse to your adverse action process.
If you’re not using adverse action and want to learn more, please contact your advisor.
5. How will drivers be trained on the Clearinghouse requirements?
Other driver education requirements hold carriers responsible for notifying drivers about information collected, maintained, and reported to the Clearinghouse. If a driver commits any of the following DOT violations or completes any of the steps after January 6, 2020, it will be reported to the Clearinghouse:
- a verified positive, adulterated or substituted drug test results
- an alcohol confirmation tested of ≥.04
- a refusal to submit to any required test
- an employer’s report of actual knowledge
- on-duty alcohol use
- pre-duty alcohol use
- alcohol use following an accident
- controlled-substance use
- SAPs report of successful completion of return-to-duty process
- a negative return-to-duty test
How Tenstreet will help educate drivers about what information is reported:
This Clearinghouse specific information will be supplied in an onboarding training document that can be provided before or during orientation for the driver to sign via Driver Pulse. If you need a full drug and alcohol training form which meets all the regulatory requirements including in the Clearinghouse, we’ll have that one available too. Once signed, it will automatically be stored in the driver’s DQF.
6. What about all the record keeping?
Carriers are required to retain records regarding queries and the outcome of those queries. These files have the propensity to grow substantially, and without a proper system in place they’re bound to get misplaced or expire without being noticed – which could easily result in more sleepless nights when it’s your turn to be audited.
Carriers will be required to keep the following records:
- record of each query and all information received in response to each query for 3 years;
- record of each limited query consent form from the date of the last query for 3 years;
- all documents related to the administration of employer’s drug and alcohol program for 5 years
- all records for all drug and alcohol violations under §382, including evidence regarding actual knowledge violations and traffic citations used for actual knowledge violations
How Tenstreet will help with record-keeping:
A real-world example:
1. An unregistered driver applies for a position with your company. Tenstreet sends a push notice through Driver Pulse asking them to register for the Clearinghouse.
2. You immediately see that the driver has registered or where they are in the process from the Tenstreet dashboard.
3. You need to run a limited query to see if the driver has any violations in the Clearinghouse. Since you use Tenstreet, the consent form can easily be added as a part of the application process or sent out to your current drivers directly. When you’re ready to run the limited query, designate Tenstreet as your TPA and we’ll run the limited query for you and return the results back into the dashboard.
Alternatively, you can also initiate the request from within your process menu, delivering a Driver Pulse push notification, text, or email that lets them know they need to sign the query consent form. The results then get delivered to the subject’s record and you get an alert to let you know they’ve returned.
4. The Clearinghouse returns existing information on the driver regarding his past violations. You know that you’ll need to run a full query, so you send the request to Tenstreet to assist in the process. While you keep your attention focused on recruiting, Tenstreet works behind the scenes with the Clearinghouse and the driver to get the results, then delivers them to your dashboard.
5a. The results of the full query show that the driver meets your company’s requirements. You know you need to educate your driver on the information stored in the Clearinghouse, so you push out a pre-onboarding training document to the driver through Driver Pulse. The driver signs it, and the form automatically uploads to his DQF. While the driver’s in Pulse, he sees the driver-facing blog on the Clearinghouse and continues to educate himself.
5b. The results of the full query show that driver doesn’t meet your company’s requirements. You need to begin the Adverse Action process, and initiate a one-click process within Tenstreet. We send the driver a pre- and post- adverse action letter letting him know of his rights and what information was used to make the decision to not hire, including the Clearinghouse results.
6. As a part of pre-orientation (or orientation), the driver receives a Clearinghouse-specific onboarding training document that educates him on the information the Clearinghouse will share about him. He signs and returns it via Driver Pulse.
7. The driver hits his one year anniversary with your company. Because you have automatic tracking/reporting with DQF services, you’re already aware of his anniversary and see he’s included in your bulk limited query report Tenstreet has automatically created for the Clearinghouse. As you’ve already collected the signature for the driver at the time of hire, there’s no need to send a second limited query consent form. After processing the bulk request, you’re done!
8. You lean back and relax with a warm cup of chamomile tea and prepare for a good night’s sleep, knowing your friends at Tenstreet have your back.
For questions, please don’t hesitate to reach us at [email protected]
If you’re already a client of ours, your advisor would be happy to answer any questions you have. It may seem overwhelming right now, but having the right TPA in place will make following the new requirements as sweet as a dream.
For a more nuanced look into the requirements and how Tenstreet will help, be sure to watch our webinar below:
To review our first introductory webinar on the FMCSA Clearinghouse, just click the button below: