Beginning Monday, January 6, 2020, public and private schools that employ Commercial Driver’s License (CDL) drivers (i.e. bus drivers, etc.) will have the additional responsibility of checking the CDL Drug and Alcohol Clearinghouse (“Clearinghouse”) for violations before hiring a prospective CDL driver and checking annually all then-currently employed CDL drivers for violations. 

The testing reporting requirements for CDL drivers have not changed. Rather, the Clearinghouse creates a central repository of reports of violations of the U.S. Department of Transportation’s controlled substance and alcohol testing program for holders of CDLs. The final regulatory rules for the Clearinghouse were published in December 2016. However, it has taken years of development to establish the Clearinghouse in August 2019 and begin allowing users to register in October 2019. 

Because the information being stored by the Clearinghouse is sensitive, the regulations contain strict parameters around who can access the information (prospective and current employers) and require consent from the individuals whose records are being accessed. The annual check only requires a limited query preceded by a signed, written, time-frame specific consent from the CDL driver. Pre-employment checks require a full query which can only be completed once the applicant CDL driver creates an account with the Clearinghouse and grants electronic consent through the Clearinghouse. 

The regulations do allow employers to outsource both pre-employment and annual Clearinghouse inquiries, but the Federal Motor Carrier Safety Administration (FMCSA) website makes clear that final responsibility for compliance rests with the employer and cannot be outsourced to a contractor. Therefore, while a vendor can perform these functions on the public or private school’s behalf, the school remains liable for compliance with all aspects of the regulations. Further, contractors that provide services relative to the Clearinghouse have independent liability under the regulations for their conduct. Therefore, any service contracts should be reviewed carefully to ensure the contractor does not attempt to assign their liability to the school.

You can find additional information at https://clearinghouse.fmcsa.dot.gov/. Further, most of the relevant federal regulations are housed at 49 CFR 382 Subpart G, which you can access at www.ecfr.gov

If you have any questions or need further guidance, please contact Dr. Sarah Flournoy at 817.339.2417 or sflournoy@belaw.com; or any of our school law attorneys.