Webinar Q&A: Clearinghouse Update – January 5, 2021: The Day of Reckoning

Did you have a chance to attend our recent webinar, “Clearinghouse Update - January 5, 2021: The Day of Reckoning”?  We received more questions than we had time to answer in the allotted time frame, so P. Sean Garney, Vice President at Scopelitis Transportation Consulting, answered them below in this Q&A-style blog post.

If you weren’t able to join the live webinar, don’t worry – you can watch it on-demand anytime!

Question: Is there a penalty if all of a company’s drivers are not registered prior to the deadline?

Answer: No, drivers are not required to register unless the carrier needs to run a full query. 

Question: I have completed all of our annual queries but, I noticed that with owner operators they are supposed to "reg." and assign a 2nd party to handle things.  I tried to explain this to our only owner operator but he said he didn't have to, I included him with our drivers.  Is he supposed to register? Or is it ok to just let whoever your drive for run queries?

Answer: If the owner operator is using your authority to operate, he/she is considered an employee for the purposes of the Clearinghouse and should register as such. If he/she is using his/her own authority, they must register as an employer. 

Question: Must I run a full query for applicants?

Answer: You must run a pre-employment full query before the driver is allowed to perform “safety sensitive functions” (e.g. driver a CMV requiring a CDL. 

Question: Does a driver have to be set up to run the limited query?

Answer: No. 

Question: Do my CDL drivers have to register themselves? Or as the employer I just run my annual queries with their consent form signed?

Answer: A driver does not need to register to run the annual limited query. 

Question: For companies who have not been using the Clearinghouse, must they run queries on all their drivers before the end of this year?

Answer: Annual “limited queries” must be run before January 6, 2020. If you have hired any CDL drivers this year and failed to run the required pre-employment full query, you should do so now. 

Question: We have six drivers that are out on workers comp. We do not have a consent form for them due to them being out. Since they are removed from driving already are we compliant?

Answer: If the drivers have remained in your random testing pool, a limited query is still required. If they have been removed from the random testing pool for more than 30 days, a pre-employment full query will be required when they return. 

Question: Did I understand that if a person gets a DUI while driving their personal vehicle it will not show up on the Clearinghouse? It will only show up in the Clearinghouse if the DUI occurs in a Commercial Vehicle?

Answer: Yes. The DUI will likely show on their MVR if they’ve been convicted, but should not be uploaded into the Clearinghouse. If the DUI occurs in the CMV, it is the employer’s responsibility to upload it.

Question: To what extent should employers go to force CDL drivers to register & consent to the queries?  Some drivers have procrastinated all year!

Answer: If motor carrier is required to run a full query, the driver must register to grant consent. If they fail to grant consent, the carrier cannot allow them to operate a CMV. Drivers do not need to register to request a limited query. The driver must, however, sign a consent form, seperate from the Clearinghouse, to request a limited query. Here’s a link to the sample consent form: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Sample-Limited-Consent-Form

Question: Does this apply in a personal vehicle as well? i.s the difference between .04 and .08 personal vehicle threshold

Answer: No, A DUI in a personal vehicle is not uploaded into the Clearinghouse. 

Question: Will you be reminded near the 5 yr renewal time?

Answer: Possibly, but I would recommend establishing a process to ensure it happens. 

Question: Are you aware if there is a way to find out which employees of a company (i.e. using DOT #) have registered with the Clearinghouse?

Answer: No. Drivers are not linked to an employer or DOT number in the Clearinghouse. 

Question: I work for a county. We employ school bus drivers. We are right at that 26,000 lb threshold. Just making sure we ARE supposed to be conducting queries both for pre employment and limited queried annually.

Answer: If your drivers are subject to FMCSA’s drug testing requirements, then the employer must also abide by the Clearinghouse rules. 

Question: They still have to take six random tests within 12 months, if failed and going through the SAP process, right? 

Answer: The Clearinghouse final rule did not change any of the underlying drug and alcohol testing rules. 

Question: What if we have a driver that has signed the limited consent form and we have run it and all is good but they have not signed up for the Clearinghouse themself yet? As a company are we compliant?

Answer: Yes. Drivers are not required to register for the Clearinghouse unless a full query (pre-employment or if a limited query returns information) is required. 

Question: I did a bulk upload for my annual query and a lot of my drivers came back as "Can't Verify Driver".  All their info is correct - why would this happen?  Do I need to manually query these drivers?

Answer: There are a number or reasons why the CDL information could not be verified. I’d recommend trying a manual query, being careful to enter the information exactly as it appears on the license. Remove spaces or dashes from the CDL number sometimes helps as well. 

Question: I have a Class C Driver that drives a straight truck. Our client did request we do a query for him. Is this required for Class C?

Answer: Queries are required for all CDL drivers operating equipment for which a CDL is required. 

Question: Do we have to get the driver's consent every year when we do a new query or can we use the old consent form they previously signed?

Answer: You can use the old consent form provided the terms of the consent specifically allow it. It is acceptable to craft the form to be valid for the duration of the drivers employment. Here’s an FMCSA sample form that speaks to this question: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Sample-Limited-Consent-Form 

Question: Do you have an information sheet to give drivers to help them register?

Answer: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Registration-Driver-Instructions 

Question: If you DQ a driver applicant due to a positive hit when running the full query are you required to follow the FCRA Adverse Action process?

Answer: FCRA issues related to the Clearinghouse have been the topic of considerable discussion. I’d advise discussing this question with your legal counsel. 

Question: I have mistakenly been pulling limited queries on my Pre Employs.  What do you suggest that I do?

Answer: I suggest you pull the full queries as soon as possible and place a note in the driver file acknowledging the error, along with a copy of the full query result. 

Question: Does a Driver need to be on for a year before I need to run an annual?

Answer: The employer is required to run a query once per year. It’s up the carrier how they manage compliance to this requirement. Running a query early, or more often than one year is acceptable. 

Question: Did you say not all drivers need to register in the clearinghouse? So they only need to do the consent in order for the company to be compliant?

Answer: All drivers must consent to queries of the Clearinghouse.Consent to full queries must be done in the Clearinghouse. Consent to limited queries is handled through a separate consent form. Here’s a sample: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Sample-Limited-Consent-Form

Question: Can annual required queries on existing employees be limited?

Answer: Yes. 

Question: Do you have instructions for drivers on how to register in other languages?

Answer: Here’s a Spanish version: https://clearinghouse.fmcsa.dot.gov/Resource/Index/Registration-Driver-Instructions-Sp

Question: In regards to actual knowledge: if we’ve completed a previous employer VOE, and obtained results of a failed drug test that occurred after 1/6/2020, but the driver has already completed the pre-employment consent on the clearinghouse portal for us, and the result is Not Prohibited, do we have an obligation to submit that information in the clearinghouse?

Answer: Yes. 

Question: We ran full queries in March 2020 do we need to run all new queries again?

Answer: The rules stipulate that a query be run “at least once per year.” Query type is not stipulated, except in the case of pre-employment queries. 

Question: I ran a query on a driver and received the following response: 'Query Status: Driver not verified'. What does that mean?

Answer: That means the Clearinghouse was not able to verify the driver information entered and therefore could not return a result. You’ll need to run the query again and correct any error to return a result. 

Question: What are the penalties if you are not able to complete an annual query because you have drivers who are "not verified" on the FMCSA 

Answer: “Not verified” indicates there was a problem with the way the CDL information was entered when the query was run. I’d recommend trying again being careful to enter the information as its listed on the physical CDL, excluding dashes or spaces. If the limited query is not obtained, regardless of the reason, the carrier will be found in violation in the event of an audit. 

Question: If a driver was employed before the clearinghouse went into effect do full queries have to be run on them  or just a limited one?

Answer: Limited only. 

Question: If a driver was hired in Oct. 2020, do we have to run a query on him now or can we wait until Sept. 2021?

Answer: Assuming you obtained a pre-employment full query at the time of hire, you do not need to obtain the annual “limited” query until 2021. 

Question: Is there a process for validation of queries or should companies image the PDF in the new hire driver file?

Answer: I’m not clear on the question. It is acceptable to retain records of Clearinghouse queries in the Clearinghouse. 

Question: if we need to do a full query for an employee hired after January, do we do  pre-employment full or just a full?

Answer: You should do a pre-employment full. They are essentially the same except the pre-employment full provides a 30-day notification window which will alert the carrier to any changes in the driver’s record within 30-days of obtaining the query. 

Question: What would the acceptable time frame be to run limited queries for the next year?

Answer: Queries must be run “once per year.” How the carrier manages this is up to their discretion. 

Question: What do we say to drivers who refuse to sign consent to run a limited query? Can they still operate a CMV for us?

Answer: If a driver refuses consent to a limited query, they cannot be allowed to operate a CMV. See 40 CFR 382.703(C)

Question: A driver got a positive result in a pre-employment – do I have to wait to report it until MRO talk with the driver? 

Answer: The MRO, not the employer, is responsible for uploading verified positive drug test results. 

Question: Do we have to run limited queries on ALL drivers that ran for us in 2020 or just active drivers?

Answer: You must run a query pre-employment and annually thereafter. 

Question: Is there a list somewhere of certified TPAs? The big ones (JJ Keller) charge quite a bit, are there cheaper options?

Answer: TPAs do not need to be “certified” to use the Clearinghouse. FMCSA does not maintain a list. 

Question: If a driver starts in December 2020 and you complete a full query, do you still need to run the limited as well by 1/6/2021

Answer: No. Queries are required once per year. If a driver was hired on December 2, 2020 and a pre-employment full query was obtained at that time, a limited query is not required until December 1, 2020. 

Question: I understand that if we failed to do a Full Query for a new hire after January 6, 2020, we must still do it. What if they were hired, but are no longer employees and a full query was not performed?

Answer: I would recommend noting the file acknowledging the misstep. It will be difficult at this point to obtain the full query consent. In the event of an audit, you may be found in violation, but acknowledging the violation and creating an action plan to prevent it from happening in the future may generate trust and good will. 

Question: If they were hired before Dec 31 2019 did you still need to do a Full Query?

Answer: No.

Question: Am I required to run a full query on employees who worked for us prior to Clearinghouse and still work for us.

Answer: You are required to run limited queries on these drivers before January 6, 2020. 

Stay up to date on CDL trucking trends! Be sure to check out the DriverReach blog for other relevant articles and head over to our webinars page for an up-to-date list of upcoming events and on-demand recordings.

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