Privacy & The Clearinghouse Rule

As of January of last year, the Clearinghouse Rule has gone into full effect. The electronic database will track commercial driver’s license holders (CDLs) who have tested positive for prohibited drug or alcohol use, as well as any refusals to take drug tests and other drug and alcohol violations. 

 

While the mission of this database is noble and needed in our society today, it is important to take a look at the privacy issues behind this database and how all parties are involved in the database, from recording to inquiries will keep that level of confidentiality sacred. Today, we will be examining the privacy issues and solutions related to the Clearinghouse Rule. 

What’s the Goal of the Clearinghouse Rule? 

While the goal of this database is to provide the Federal Motor Carrier Safety Administration (FMCSA) 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 CMV on public roads and highways. In short, it is to ensure the safety of all drivers on our American roads. 

How Will Privacy Be Protected? 

Given that employers, drivers, medical review board members, and substance abuse professionals can legally access the Clearinghouse database, there are rightfully questions about privacy on all sides. 

 

In accordance with the Privacy Act  of 1974 (5 U.S.C. § 552a), a driver must grant consent before an employer can request access to that driver’s Clearinghouse record and before FMCSA can release the driver’s clearinghouse record to an employer. The Agency will then verify the driver’s consent for the release of information prior to allowing an employer to access the driver’s Clearinghouse record. While the employer must obtain the CDL driver's consent before making any queries, they will not be able to use the employee in a safety-sensitive function (e.g., CMV driving) if consent is not provided.

After registering with the Clearinghouse, a driver can also review his or her information at no cost, according to FMCSA.

Drivers also have the right to request inaccurate information in their Clearinghouse record be corrected or removed. In addition, the Federal Motor Carrier Safety Administration (FMCSA) will notify employers if previously-released Clearinghouse information has been subsequently corrected or removed.

These consent obligations as well as the driver’s right to correct records are safeguards that will protect the privacy of drivers and those seeking to employ CDL drivers in the future.