FMSCA FAQs—National Drug and Alcohol Testing Clearinghouse

On Dec. 5, 2016, the Federal Motor Carrier Safety Administration (FMCSA) issued a final rule that aims to improve roadway safety by establishing a National Drug and Alcohol Testing Clearinghouse.

Under the final rule, motor carriers and other employers of commercial motor vehicle (CMV) drivers must use the Clearinghouse to ensure that current and prospective employees do not have any unresolved drug and alcohol violations that render them ineligible to operate a CMV. Employers will also be required to report information about positive drug test results, alcohol test results greater than 0.04 blood alcohol content, refusals to test and other non-test violations of FMCSA’s drug and alcohol regulations.

These requirements take effect on Jan. 6, 2020, the date that the Clearinghouse is scheduled to become operational. Employers, CMV drivers and other parties will need to register to use the system and may sign up to receive an email notification that registration is open.

FMCSA HIGHLIGHTS

  • Will allow motor carriers and other employers to identify drivers who are ineligible to operate a CMV.
  • Will contain information about violations by employees who are subject to drug and alcohol testing under FMCSA regulations.
  • Employers must use the database to ensure current and prospective employees do not have unresolved violations.

IMPORTANT DATES

  • Jan. 6, 2020—Employers must begin using the Clearinghouse and must also make manual inquiries with former employers.
  • Jan. 6, 2023—Employers will no longer be required to request data from a driver’s previous FMCSA-regulated employers.

Clearinghouse FAQs

What information will the Drug and Alcohol Clearinghouse contain?

The Clearinghouse will contain records of violations of drug and alcohol prohibitions in 49 CFR part 382, subpart B, including positive drug or alcohol test results and test refusals. When a driver with a drug and alcohol program violation completes the required Return-to-Duty (RTD) process, this information will also be recorded in the Clearinghouse.

Who is authorized to use the Clearinghouse?

To access the Clearinghouse (once it is operational), a user must request access from the FMCSA by registering. Authorized users will include:

  • Motor carriers and other employers with drivers operating CMVs that require a commercial driver’s license (CDL) or commercial learner’s permit (CLP);
  • CDL/CLP drivers;
  • Consortium/third-party administrators;
  • Medical review officers;
  • Substance abuse professionals;
  • State driver licensing agencies; and
  • Federal and state enforcement personnel

Will a prospective employee’s drug and alcohol violation history with Department of Transportation (DOT) modes other than the FMCSA be available in the Clearinghouse?

No. The Clearinghouse will contain only drug and alcohol program violation information for employees subject to the testing requirements under the FMCSA regulations in 49 CFR part 382. Employers must continue to request information from previous employers if an employee was subject to DOT drug and alcohol testing required by a DOT modal administration other than FMCSA (as required by §391.23(e)(4)(B)).

May employers report the results of non-DOT drug or alcohol tests to the Clearinghouse?

No. Only results of DOT drug tests, alcohol tests or test refusals may be reported to the Clearinghouse. While employers may conduct drug and alcohol testing that is outside the scope of the DOT testing requirements, positive test results or refusals for such non-DOT testing may not be reported to the Clearinghouse.

What actions will drivers be able to take in the Clearinghouse?

Drivers will need to log into the Clearinghouse in order to electronically consent to requests from prospective and current employers that need to access full details about any drug and alcohol program violations as part of an employment-related background check. This is the only valid method for an employee to respond to this type of employer consent request, and failure to provide timely consent may result in a driver being prohibited from performing safety-sensitive functions for that employer.

Drivers may log in to the Clearinghouse to view their individual driver record at any time. Also, if a driver chooses to engage a Substance Abuse Professional (SAP), he or she must select the SAP through the Clearinghouse to initiate the RTD process.

How are employers and Consortium/Third-Party Administrators required to use the Clearinghouse?

The Clearinghouse offers employers a centralized location to report drug and alcohol program violations and to check whether a current or prospective employee is prohibited from performing safety-sensitive functions, such as operating a CMV, due to an unresolved drug and alcohol program violation—that is, a violation for which the employee has not completed the RTD process. Employers must conduct this test, or query, as part of any pre-employment screening and at least annually after an employee is hired.

Employers may also use the Clearinghouse to designate a consortium/third-party administrator, which is a required step for any employer that employs him- or herself as a driver.

How are Medical Review Officers (MROs) and Substance Abuse Professionals (SAPs) required to use the Clearinghouse?

MROs must use the Clearinghouse to report verified positive drug test results and any driver refusals to take a drug test.

SAPs must use the Clearinghouse to report on the RTD status of drivers who are working to resolve any open drug and alcohol program violations. These reports include the date of completion of the initial assessment and the date the driver becomes eligible for RTD testing.

How will State Driver Licensing Agencies (SDLAs) use the Clearinghouse?

As of Jan. 6, 2020, SDLAs will be able to query the Clearinghouse prior to completing licensing transactions.

How will driver data be protected in the Clearinghouse?

The Clearinghouse will meet all relevant federal security standards, and the FMCSA will verify the effectiveness of the security protections on a regular basis.

Driver information will not be available to the public. Only authorized users will be able to register and access the Clearinghouse for designated purposes. The Clearinghouse will require authentication (username/password) to access records.

Drivers registered in the Clearinghouse will be able to access their Clearinghouse records at any time, and at no cost to them. Drivers will only be able to access their own information, not information about other drivers.

The FMCSA will only share detailed drug and alcohol violation information with prospective or current employers when an employer has requested and received specific consent from the driver. Drivers will be able to see the information that would be released to an employer before consenting to the release.

Driver information will be shared only with the FMCSA and other enforcement agencies as required to enforce drug and alcohol use testing regulations.

Does the final rule change any of the existing drug and alcohol program requirements in part 40?

No, the final rule does not change any existing requirements in the US DOT-wide procedures for transportation workplace drug and alcohol testing.

Source: U.S. Department of Transportation, Federal Motor Carrier Safety Administration

OSHA Form 300A Posting Requirements Begin Feb. 1

#RiskSynergy


OVERVIEW

By Feb. 1 of each year, employers that are subject to the Occupational Safety and Health Administration’s (OSHA) routine recordkeeping requirements must post copies of their completed OSHA Form 300A (“Summary of Work-related Injuries and Illnesses”) from the previous year in visible locations within their employees’ workplaces. The postings must then be kept in place until at least Apr. 30 every year.  These requirements apply to all employers that are not in a partially exempt industry and have more than 10 employees.

ACTION STEPS

On Feb. 1, 2019, employers subject to OSHA recordkeeping requirements must ensure that copies of their completed Forms 300A from 2018 are posted in each of their establishments in a conspicuous place or places where notices to employees are customarily posted. 

Until Apr. 30, 2019, these employers must also ensure that their Form 300A postings remain in place and are not altered, defaced or covered by other material.

IMPORTANT DATES

February 1 to April 30, 2019

Employers must post and keep their completed 2018 Forms 300A posted in their employees’ workplaces.

March 2, 2019

Deadline for certain employers to submit electronic reports to OSHA.

Contact Tooher-Ferraris today to learn more about our integrated insurance and risk management programs at 203-834-5900 or info@toofer.com.

Mobile Device Security

Because of all they can offer, smartphones and tablet devices are essential to many professions’ daily operations. However, as use rises, it will become more and more important to ensure that security for these mobile devices is able to adequately protect you from new and existing threats.

The need for proper phone security is no different than the need for a well-protected computer network. Gone are the days when the most sensitive information on an employee’s phone is contact names and numbers. Now a smartphone could grant access to any number of applications, emails and stored passwords. Depending on how your organization uses such devices, unauthorized access to the information on a smartphone or tablet could be just as damaging as a data breach involving a more traditional computer system.

Lost or Stolen Devices

Because of their size and nature of use, mobile devices are at an increased risk of being lost or stolen. Since most devices automatically store passwords in their memory to keep users logged in to email and other applications, having physical possession of the device is one of the easiest ways for unauthorized users to access private information.

To prevent someone from accessing a lost or stolen device, the phone or tablet should be locked with a password. The password should be time sensitive, automatically locking the phone out after a short period of inactivity. Most devices come with such security features built in, which is something you should consider before purchasing. Depending on your cellphone provider, there are also services that allow you to remotely lockdown or erase a device in the event that it is lost or stolen.

Malicious Attacks

Mobile devices have the potential to be just as susceptible to malware and viruses as computers, yet many businesses don’t consider instituting the same type of safeguards. As reliance on these devices continues to grow, so will their attractiveness as potential targets. Third-party applications are especially threatening as a way for malware to install itself onto a device. Employees should never install unauthorized applications to their company devices.

Analyze Threats

Like any potential exposure, the level of risk brought on by mobile devices is based largely on how your company uses them. Conduct a formal risk assessment to see where your biggest risks are. Also establish when to conduct follow-up assessments to account for new exposures created by the ever-advancing state of technology.

Establish a Smartphone Policy

Before issuing smartphones to your employees, establish a device usage policy. Outline what does and does not constitute acceptable use and what actions will be taken if employees violate the policy. It is important that employees understand the security risk inherent to smartphone use and their role in its mitigation. Well informed, responsible users act as an invaluable layer of security protecting mobile devices.

Waivers of Subrogation

The regular review of every contract you sign is a highly important risk management task. This includes a contract’s waiver of subrogation clause.

Subrogation is a basic insurance concept used in insurance contracts. If a loss occurs, it typically happens through someone’s negligence. In general, the negligent or “at fault” party is liable for the cost of the loss; your insurance carrier can then choose to sue the at-fault party to recover the amount of a claim they paid for you in a process known as subrogation. You may not find the term subrogation in your contract, but it may be included—check for the terminology ”Transfer of Rights of Recovery Against Others to Us,” which some insurance policies use in place of subrogation.

When a waiver of subrogation is required in a contract, it means that you are waiving your insurance company’s right to subrogate against another party, most commonly the party you are in under contract with. Most policy contracts, with the exception of workers’ compensation, allow you to waive your rights of subrogation as long as it is done in writing and prior to the loss. Often an endorsement is added specifically referring to the exact contract as a means of clarification. However, there are associated risks:

  • In some jurisdictions, waivers of subrogation are not available. Therefore, a careful review of the state statute is required.  You should also obtain your workers’ compensation carrier’s position and agreement on waivers of subrogation.
  • Waiver of subrogation requirements should be built into a contract. The contract wording should be thoroughly reviewed to ensure the waiver of subrogation is being utilized appropriately for the situation. For example, mutual waivers may be beneficial in landlord/tenant contracts, where all parties waive their rights. However, in construction contracts, mutual waivers may not be acceptable or prudent.

The Value of Waiver of Subrogation Clauses

A waiver of subrogation clause is placed in a contract to minimize lawsuits and claims between the parties. The risk, once assigned to the insurers by the parties, is determined to stop there, without allowing the insurer to seek costs from a third party. This guarantees that if a loss occurs, the owner’s insurer pays the claim and the insurance proceeds can be used to fund the cost of repairs without determining who was at fault. Without a waiver of subrogation, litigation or arbitration is frequently needed to determine whose fault caused a loss, which can lead to long and costly delays.

Reviewing Contracts

It’s important that all contractual language mirrors your policy. As your insurance partner, we are committed to helping you understand how your policy language impacts your contractual risks. Call Tooher-Ferraris Insurance Group today to learn more about how we can assist you in mitigating your contract exposure.

OSHA Standards

2018 Most Frequently Cited OSHA Standards

OSHA recently unveiled its top 10 most frequently cited standards. The agency reports the leading causes of workplace injuries during its fiscal year (October through the following September) to help businesses identify common safety pain points.

The 2018 top 10 list of most frequently cited standards didn’t change significantly from 2017, with fall protection violations staying on top of the list. In fact, the top seven standards remained the same. Read below to learn more details on the top 10 most cited OSHA standards.

Continue reading “2018 Most Frequently Cited OSHA Standards”

Workplace Safety Regulation

Workplace Safety Regulation

This Workplace Safety Regulation manual will serve as a guide to some general federal OSHA standards as well as some Connecticut workplace safety laws that fall outside of the scope of the federal OSHA program. This guide is not meant to be exhaustive or construed as legal advice, but will be a helpful tool in complying with your general employer workplace safety and health responsibilities. Continue reading “Workplace Safety Regulation”

Benefits of Cyber Liability Insurance

When cyber attacks like data breaches and hacks occur, they can result in devastating damage. Businesses have to deal with business disruptions, lost revenue and litigation. It is important to remember that no organization is immune to the impact of cyber crime. As a result, cyber liability insurance has become an essential component to any risk management program.

Continue reading “Benefits of Cyber Liability Insurance”