FMCSA Drug/Alcohol Clearinghouse Rule Applies to Canadian Cross-Border Motor Carrier Employers

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All Canadian employers who employ commercial drivers must now be aware of new requirements for those employees operating commercial vehicles in the United States.

As of January 6, 2020, the Federal Motor Carrier Safety Administration (“FMCSA”), operating under the Department of Transportation (DOT), has instituted new reporting requirements for all FMCSA-regulated motor carriers employing commercial motor vehicle drivers, including Canadian carriers carrying out cross-border operations. These drivers include, but are not limited to:

  • Interstate and intrastate motor carriers, including passenger carriers;
  • School bus drivers;
  • Construction equipment operators;
  • Limousine drivers;
  • Municipal vehicle drivers (e.g., waste management vehicles); and,
  • Federal and other organizations that employ drivers subject to FMCSA drug and alcohol testing regulations (e.g., Department of Defense, municipalities, school districts)

Employers of these individuals must now report all drug and alcohol violations of their drivers directly to the new Drug and Alcohol Clearinghouse (the “Clearinghouse”). According to the Clearinghouse, its purpose is to enable “employers to identify drivers who commit a drug and alcohol program violation while working for one employer, but who fail to subsequently inform another employer (as required by current regulations).”

In stark contrast to Canadian law, where drug and alcohol reporting requirements are governed provincially (save for Criminal Code violations), the Clearinghouse is nationwide. By way of comparison, one common tool utilized by Canadian employers is to request a one of a number of background checks (e.g. Criminal Record Check, Criminal Record and Judicial Matters Check, Vulnerable Sector Records Check, Credit Check, etc.). Yet, these background checks may not be proper in all cases and are limited in their scope. Therefore, where a Canadian employer utilizes an American based driver in any State, the employer must follow the process as described by the Clearinghouse.

Canadian employers utilizing American drivers or those who operate out of the United States should consider reviewing their current drug and alcohol policies to identify efficiencies that could be gained or gaps which require attention. This may be particularly difficult for Canadian employers as they must balance workplace safety and obligations under relevant health and safety legislation, an employee’s right to privacy, human rights considerations and potential circumstances regarding the need for accommodation.

This article was prepared by McCarthy Tétrault’s Transportation and Logistics Group. Should you have any questions or require assistance updating your workplace policies, please do not hesitate to contact Tim Lawson or Ben Aberant.

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