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FMCSA Clearinghouse II requires CDL downgrade

November 18, 2024, FMCSA Clearinghouse II requires CDL downgrade

What is the FMCSA Commercial Driver’s License Drug and Alcohol Clearinghouse?

The Clearinghouse is a secure online database that gives employers, FMCSA, State Driver Licensing Agencies (SDLAs), and State law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations. An act of Congress directed the Secretary of Transportation to establish the Clearinghouse.

The Clearinghouse enables employers to identify drivers who commit a drug and alcohol program violation while working for one employer, but who fail to subsequently inform another employer, as required.

Improving Highway Safety

The Clearinghouse provides FMCSA, SDLAs, and employers the necessary tools to identify drivers who are prohibited from operating a CMV based on U.S. Department of Transportation (DOT) drug and alcohol program violations, and ensure that such drivers receive the required evaluation and treatment before operating a commercial motor vehicle (CMV) on public roads.

The First Clearinghouse Rule

The first Clearinghouse final rule requires FMCSA-regulated employers, medical review officers (MROs), substance abuse professionals (SAPs), and consortia/third-party administrators (C/TPAs) to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 Code of Federal Regulations, Parts 40 and 382 by current and prospective employees.

The first Clearinghouse rule also requires the following:

  • Employers are required to query the Clearinghouse for current and prospective employees’ drug and alcohol violations before permitting those employees to operate a CMV on public roads.
  • Employers are required to annually query the Clearinghouse for each driver they currently employ.

The Second Clearinghouse Rule (CDL Downgrades)

The second Clearinghouse final rule (Clearinghouse-II) supports FMCSA’s goal of ensuring that only qualified drivers are eligible to obtain and retain a CDL. Beginning November 18, 2024, SDLAs will be required to remove the commercial driving privileges of drivers in a “prohibited” status in the Clearinghouse, which would result in a downgrade of the CDL until the driver completes the return-to-duty (RTD) process.

Clearinghouse-II also requires the following:

  • SDLAs must also query the Clearinghouse before issuing, renewing, upgrading, or transferring CDLs and issuing, renewing, and upgrading CLPs.
  • SDLAs must review a driver’s information when notified by FMCSA of a driver’s Clearinghouse status change.

Note: SDLAs with legislative authority currently have the option to voluntarily query the Clearinghouse and downgrade CDLs for prohibited drivers and may do so before the November 18, 2024 compliance date.


SOURCE: https://clearinghouse.fmcsa.dot.gov/About

Random Testing Rates

2024 DOT Random Testing Rates

The following chart outlines the annual minimum drug and alcohol random testing rates
established within DOT Agencies for 2024.
DOT Agency
2024 Random Drug Testing Rate
2024 Random Alcohol Testing Rate
Federal Motor Carrier Safety Administration
[FMCSA]

The random rates did not change for 2024.  Because the random rates did not change, FMCSA is not required to publish a notice in the Federal Register.  The rate last changed in 2020.

50%

10%
Federal Aviation Administration
[FAA]

2024 Random Rate Federal Register Notice

2024 Federal Register Notice – Correction

25%

10%

Federal Railroad Administration
[FRA]

2024 Random Rate Federal Register Notice

25% – Covered Service

10% – Covered Service

25% – Maintenance of Way 10% – Maintenance of Way
50% – Mechanical 25% – Mechanical
Federal Transit Administration
[FTA]

2024 Random Rate Federal Register Notice

50%

10%

Pipeline & Hazardous Materials Safety Administration
[PHMSA]

2024 Random Rate Federal Register Notice

25%

N/A

NOTE: Employers (and C/TPAs) subject to more than one DOT Agency drug and alcohol testing rule may continue to combine covered employees into a single random selection pool.

USCG covered employees may be combined with DOT covered employees in drug testing pools even though the USCG is now part of the Department of Homeland Security.

Source: (https://www.transportation.gov/odapc/random-testing-rates) Friday, December 29, 2023

DOT Publishes Drug Testing Rule

This final rule amends the U.S. Department of Transportation’s regulated industry drug testing program to include oral fluid testing.  This additional methodology for drug testing will give employers a choice that will help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.

In order for an employer to implement oral fluid testing under the Department’s regulation, the U.S. Department of Health and Human Services (HHS) will need to certify at least two laboratories for oral fluid testing, which has not yet been done.

The final rule includes other provisions to update the Department’s regulation and to harmonize, as needed, with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid established by HHS.

In addition, this rule amends the FAA, FMCSA, FRA and FTA regulations to ensure consistency within the Department of Transportation and by removing or adjusting references to the word “urine” and /or add references to oral fluid, as well as, removing or amending some definitions for conformity and to make other miscellaneous technical changes or corrections.

Part 40 Federal Register, Court Decisions and Legislation | US Department of Transportation

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truck drivers

Pre-employment Investigations for Drug and Alcohol Program Violations

Beginning January 6, 2023, a pre-employment Clearinghouse query will satisfy the requirement to investigate a prospective driver’s previous drug and alcohol program violations, as set forth in 49 CFR 391.23(e)(4) and 382.413(b).

Employers of CDL drivers are required to conduct background investigations before hiring a driver. This process includes determining if the driver has violated the drug and alcohol regulations of any Department of Transportation (DOT) mode within the past three years (see 49 CFR  391.23(e)(1)-(3) and 382.413(a)). Currently, this requires employers or their designated consortia/third-party administrators (C/TPAs) to conduct both electronic queries in the Clearinghouse and manual inquiries with previous employers to meet the three-year time frame.

Beginning January 6, 2023, when three years of violation data is stored in the Clearinghouse, prospective employers must conduct a pre-employment query of the Clearinghouse, as set forth in § 382.701(a), to comply with the inquiry requirement in §§ 382.413(b) and 391.23(e)(4), as it pertains to FMCSA-regulated employers. Inquiries not conducted under § 382.701(a) will not satisfy these inquiry requirements.

NOTE: The Clearinghouse contains only information about drivers employed by FMCSA-regulated employers. If a prospective employee was employed by an employer regulated by a DOT agency other than FMCSA (such as the Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration, etc.) during the three-year time frame, prospective employers will still be required to directly request drug and alcohol violation information from those DOT-regulated employers in accordance with 391.23(e)(4)(ii) and 382.413(c), since this information is not reported to the Clearinghouse

Annual query requirements have not changed.

Employers of CDL drivers must conduct a query in the Clearinghouse at least once a year for each CDL driver they employ (see § 382.701(b)). This annual query requirement applies on a rolling 12-month basis, which means that if you conducted your last annual queries in December 2021, it is time to conduct the next round of annual queries.

Employers must obtain general consent from CDL drivers they employ before conducting limited queries in the Clearinghouse to view these drivers’ information (you can download a sample limited query consent form)
.

Are you up-to-date on your annual queries?

Log in to the Clearinghouse and visit your Query History page to see if your annual queries are due. For instructions on conducting annual queries, download the How to Conduct a Limited Query job aid.

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COVID-19 Vaccination and Testing ETS

The ETS on Vaccination and Testing was officially filed in the Office of the Federal Register on November 4, 2021, and it became effective when it was published on November 5, 2021. Written comments on any aspect of the ETS must be submitted by December 6, 2021 in Docket number OSHA-2021-0007. Written comments on the information collection determination as described in V.K. of the ETS preamble [2021-23643] must be submitted by January 4, 2022 in Docket number OSHA-2021-0008.

Find information on the COVID-19 Healthcare ETS or on Coronavirus Disease (COVID-19).

About the Standard

Implementation


Reposted from https://www.osha.gov/

Adult use cannabis and the workplace

New York Labor Law 201-D

This document is intended to address some of the most common situations or questions in the workplace related to adult-use cannabis and the Marijuana Regulation and Taxation Act (“MRTA”). This document does not address the medical use of cannabis. For further assistance with New York Labor Law and the MRTA, please visit New York State’s Office of Cannabis Management’s website at cannabis.ny.gov or consult with an appropriate professional.

DISCRIMINATION PROHIBITED

The MRTA amended Section 201-D of the New York Labor Law to clarify that cannabis used in accordance with New York State law is a legal consumable product. As such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.

PERMITTED EMPLOYER ACTIONS

The MRTA amended New York Labor Law Section 201- D by adding a new subsection 4-a, which provides that employers MAY take employment action or prohibit employee conduct where:

  • An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate
  • The employer would be in violation of federal law
  • The employer would lose a federal contract or federal funding
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws

FREQUENTLY ASKED QUESTIONS:

HUMAN RESOURCES ISSUES / ACTION AGAINST EMPLOYEES

Is illegal cannabis use protected?

Only the legal use of cannabis by adults over the age of 21 under New York State law is protected. The illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law. For more information on what is now considered legal use, please visit New York State’s Office of Cannabis Management’s website at cannabis.ny.gov or consult with an appropriate professional.

Can an employer take action against an employee for using cannabis on the job?

An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:

  • Decrease or lessen the performance of their duties or tasks
  • Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws

What are articulable symptoms of impairment?

There is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination.

For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.

What cannot be cited by an employer as articulable symptoms of impairment?

Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited. However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or using employer property.

Can employers use drug testing as a basis for an articulable symptom of impairment?

No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment. (For more information, see section Drug Testing below).

Can I fire an employee for having a noticeable odor of cannabis?

The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.

Do I have to fire an employee for using cannabis on the job or for cannabis impairment on the job?

No, employers are permitted to take action under such circumstances but are not required to do so.

Do I have to discipline, report, or fire an employee under age 21 who uses cannabis on the job?

No, there is no legal requirement to do so in the Labor Law.

Are employers required to hire an employee back who was previously terminated for now legal cannabis use or a related expunged crime?

No, the law does not require employers to rehire former employees who were terminated due to cannabis use prior to the legalization of cannabis.

What if my employee works remotely in another state that uses different laws?

The MRTA and New York Labor Law Section 201-D only apply to employees employed within the State of New York.

Can a person use cannabis if they are on leave?

For purposes of the labor law, employers cannot prohibit the use of cannabis while employees are on leave unless the employer is permitted to do so pursuant to the provisions of New York Labor Law Section 201-D(4-a).

USE AT WORK OR DURING WORK HOURS

Can employers prohibit use of cannabis during meal or break periods?

Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered “work hours” if the employee leaves the worksite.

Can employers prohibit use of cannabis during periods in which an employee is on-call?

Yes, employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”

Can employers prohibit cannabis possession at work?

Yes, employers may prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).

For remote employees, can employers prohibit use in the “worksite”?

The Department of Labor does not consider an employee’s private residence being used for remote work a “worksite” within the meaning of Labor Law Section 201- D. However, an employer may take action if an employee is exhibiting articulable symptoms of impairment during work hours as described above and may institute a general policy prohibiting use during working hours.

Can employers prohibit use when the employee uses a company vehicle?

Yes, employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.

WORKPLACE POLICIES

Can employers prohibit the use of cannabis outside of the workplace?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a).

Can employers require that employees promise or agree not to use cannabis as a condition of employment?

No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.

Are existing policies prohibiting use permitted?

No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law.

APPLICABILITY

Are both public and private employees covered by the MRTA and New York Labor Law Section 201-D?

Yes, they apply to all public (state and local government) and private employers in New York State, regardless of size, industry, or occupation.

Which employees aren’t covered by the MRTA and New York Labor Law Section 201-D?

The MRTA and New York Labor Law Section 201-D do not apply to individuals who are not employees (e.g., students who are not employees, independent contractors, individuals working out of familial obligation, volunteers) or provide any consumer protections. Employees under the age of 21 are also not covered, as cannabis use by individuals under the age of 21 is prohibited by New York Law and not subject to the present protections.

Do the MRTA and New York Labor Law Section 201-D depend on immigration or citizenship status?

No, the MRTA and New York Labor Law Section 201- D apply to all employees regardless of immigration or citizenship status.

Do the MRTA and New York Labor Law Section 201-D apply to students?

Yes, the MRTA and New York Labor Law Section 201-D apply to all employees, regardless of their educational status. However, students who are not “employees” are not covered by this law.

DRUG TESTING OF EMPLOYEES

Can an employer test for cannabis?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.

Can an employer drug test an employee if federal law allows for drug testing?

No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)

1 The federal government, as an employer, is not covered by this law.

Reposted from NY Department of Labor

Employers and C/TPAs webinar

Watch a recording of the live Q&A session for employers and C/TPAs

 

In December 2020, FMCSA hosted a series of question and answer webinar sessions for Clearinghouse users, including two sessions for employers and consortia/third-party administrators (C/TPAs).

Watch a recording of one of these sessions.

The sessions included presented material and live Q&A time on the following topics:

  • Clearinghouse registration
  • Conducting queries and requesting driver consent
  • Reporting CDL driver violations
  • Common user issues and how to address them
  • Reminders about the January 5, 2021 deadline for employers to have conducted annual queries for all currently-employed CDL drivers.

 

CDL drivers webinar

Watch a recording of the live Q&A session for CDL drivers

In December 2020, FMCSA hosted a series of question and answer webinar sessions for Clearinghouse users, including two sessions for drivers who hold commercial driver’s licenses (CDLs) or commercial learner’s permits (CLPs).

Watch a recording of one of these sessions.

The sessions included presented material and live Q&A time on the following topics:

  • Clearinghouse registration
  • Responding to query consent requests
  • Which violations are reported to the Clearinghouse
  • Common user issues and how to address them

MROs and SAPs webinar

Watch a recording of the live Q&A session for MROs and SAPs

In December 2020, FMCSA hosted a series of question and answer webinar sessions for Clearinghouse users, including two sessions for medical review officers (MROs) and substance abuse professionals (SAPs).

Watch a recording of one of these sessions.

The sessions included presented material and live Q&A time on the following topics:

  • Clearinghouse registration
  • How MROs report CDL driver violations
  • How SAPs report CDL driver return-to-duty information
  • Common user issues and how to address them

The webinar also includes important reminders, such as:

  • MROs entering driver CDL information, not social security numbers, and what to do if the CDL information is not included in the CCF.
  • Which RTD information SAPs report to the Clearinghouse (date of initial assessment and date of determined eligibility for RTD testing), and which steps take place outside the Clearinghouse.
  • How both MROs and SAPs must keep their qualifications current to continue using the Clearinghouse.

 

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