Employers with Drivers Operating in the U.S. Take Note: New U.S. Drug and Alcohol Testing Rule in Force January 6, 2020
Date: November 14, 2019
On January 6, 2020, Canadian employers who have commercial drivers operating in the United States will be required to comply with the requirements under the new Drug and Alcohol Clearinghouse program. Clearinghouse is administered by the United States Department of Transportation (DOT) Federal Motor Carrier Safety Administration (FMCSA).
The Clearinghouse is a centralized data base to be administered by the FMCSA that will house information relating to drug and alcohol infractions by drivers who operate commercial motor vehicles in the United States.
Employers will be required to periodically query the Clearinghouse and report into the Clearinghouse to facilitate the sharing of information about drivers who are disqualified from driving and to enforce driving disqualifications.
Employers will be required to query the database prior to hiring new drivers and annually for currently drivers. Employers may conduct a “limited query” to see if the Clearinghouse includes information about the driver, but must promptly conduct a full query if there is a match.
Employers must not allow any driver who has a Clearinghouse record to drive (or perform other safety-sensitive functions) unless and until the Clearinghouse indicates that specified conditions for return to safety-sensitive duty have been met.
All queries must be based on consent. Employers must not allow any driver who refuses to consent to drive.
Employers, medical review officers and substance abuse professionals will have reporting duties. Employers must report alcohol confirmation tests with an alcohol concentration of 0.04 or greater, negative return-to-duty tests, refusals to take an alcohol test, refusals to test determinations and reports regarding successful completion of follow-up tests.
The time frame for reporting the violation is very short. Reports must be made by the close of the third business day following the date on which an employer obtains relevant information.
When information is entered into the Clearinghouse, the FMCSA will notify the affected driver.
Implications for Canadian Employers
Canadian employers with drivers who work in the United States must comply, which will require obtaining employee cooperation.
Employees should be made to understand that the privacy impact of the Clearinghouse is limited; employees who do not commit infractions will have no information reported into the Clearinghouse. For those employees who do have infractions that must be reported, the Clearinghouse regime features privacy protections, including a right of access and correction and a limitation on the period of time that information about infractions will remain available.
Employees should also understand that their cooperation is essential, and that refusing to consent to queries will jeopardize their ability to work. The ultimate consequence of refusals, however, should be addressed on a case-by-case basis.
Finally, employers who are subject to Canadian privacy legislation should give special consideration to their statutory obligations. In general, Canadian privacy statutes permit employers to disclose personal information in order to meet a legal requirement. Some privacy statutes, however, limit this allowance to Canadian statutes.
For assistance in complying with the Clearinghouse rules, please contact Dan Michaluk at 416.864.7253, Alexandra Mayeski at 416.864.7028 or any other member of our Information, Data Security and Privacy group.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©