Johnson Insurance Services, LLC a division of Johnson Financial Group - Comments

Request for guidance/interpretation under the Requirements and Procedures for Parts FMCSR's 49CFR 382.701(a) and 49CFR 382.701(b). I am seeking for guidance and interpretation in the Requirements and Procedures for Implementation of the Commercial Driver's License Drug and Alcohol Clearinghouse, specific to 382.701(a) and 382.701(b) queries for parent/child entities (subsidiaries) using multiple employer drivers. Under 49CFR 382.701(a) Employers must not employ a driver subject to controlled substances and alcohol testing under this part to perform a safety-sensitive function without first conducting a pre-employment query of the Clearinghouse. (2) The employer must conduct a full query under this section, which releases information in the Clearinghouse to an employer and requires that the individual driver give specific consent. Under 49CFR 382.701(b) Employers must conduct a query of the Clearinghouse at least once per year for information for all employees subject to controlled substance and alcohol testing to determine whether information exists in the Clearinghouse about those employees. A limited query may be conducted when the employer has a signed consent from the driver. When, for example, there is a parent company with child companies (or subsidiaries) that may hire an individual driver to work for each company, 382.701(a) will require EACH company to conduct both the full and limited queries of the individual which seems redundant, when under current regulations 391.63, 382.301 and 382.305, employers are afforded certain exceptions such as; •Relief from 391.21, 391.23(a) and (b) and 391.27 (under 391.63), •Relief from Pre-employment testing when a driver has participated in a controlled substances testing program within the previous 30 days; and while participating in that program was tested for controlled substances within the past 6 months (from the date of application with the employer) and the employer ensures that no prior employer of the driver of whom the employer has knowledge of violations, and the employer has records of such (under 382.301 (B) (C) and 382.301 Interpretation Q. 5), •Permission to combine the driver(s) from the subsidiaries of a parent employer into one pool (by contract), with the parent employer acting as a consortium (under 382.305 Interpretation Q. 13), •Affording an employer to use the results of another program in which a driver participates to satisfy random testing requirements (under 382.305 Interpretation Q. 5). Because the parent company will conduct a full query of an individual through the Clearinghouse, the knowledge, proof and documentation that identifies candidates that would be prohibited from operating will have been obtained and any additional information reported to the Clearinghouse within 30 days will also be communicated to the parent company. If the parent company is allowed to share, with the subsidiary company, the results of the query of an individual that will drive for both the parent company and the subsidiary company this will relieve the additional time and administrative costs associated with the staff tasked to complete the queries as well as the cost of the additional query fee that must be paid to the Commercial Driver's License Drug and Alcohol Clearinghouse. Additionally, the individual driver applicant will need to only consent to the one full query from the parent company vs. having to consent individually to the parent company AND the subsidiary company. This same line of thinking would be applied when considering the annual limited queries that would be conducted through the Commercial Driver's License Drug and Alcohol Clearinghouse on a driver that is operating for both the parent company and the subsidiary company. If the parent company and subsidiary company are allowed by regulation/interpretation to combine drivers into one consortium by contract, using the results of the program to satisfy random testing, then it would seem reasonable that the results obtained during the annual limited query should be treated in the same manner. On behalf of any parent/subsidiary company’s and the employees of such that may be weathering through this type of scenario I am requesting an interpretation to the regulation which would afford them the use of the parent company’s full and partial query results, by contract, to be shared with the subsidiary company in order to meet the requirements of 49CFR 382.701(a) and 49CFR 382.701(b). A sample driver consent form that might be considered is attached for your review. During an Investigation or Audit of this Part (382), an Investigator can simply require that the subsidiary company provide proof/documentation of the contract, driver consent form and all applicable queries. Thank you for your consideration, R. Funk AVP-DOT Loss Control Engineer Johnson Insurance Services LLC, a Division of Johnson Financial Group