COVID-19 pandemic: FMCSA extends waiver for certain preemployment drug tests

purple-semi.jpg

Photo: DakotaSmith/iStockphoto

Washington — The Federal Motor Carrier Safety Administration has granted to recently furloughed commercial motor vehicle drivers a 90-day waiver from certain preemployment drug testing requirements, in response to the COVID-19 pandemic.

Effective June 5 and set to expire Sept. 30, the waiver amends current regulations requiring drivers to undergo preemployment drug testing and produce a negative test result to their employer before performing safety-sensitive functions, which includes operating a CMV. The regulation offers an exception to drivers who have participated in a testing program within the past 30 days and either:

  • Were tested for controlled substances within the past six months
  • Participated in the random controlled substances testing program for the previous 12 months.

Under the waiver, the exemption period is extended to 90 days from 30.

“As employers begin to recall drivers who were furloughed, laid off or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short time frame are significant, at a time when the commercial trucking and motor coach industry is facing unprecedented economic challenges,” the waiver states. “This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.”

FMCSA says offering “temporary regulatory relief from this burden” is possible “without negatively impacting safety.” Further, the agency “reserves the right to revoke” the waiver as a result of drivers’ involvement in incidents or employers’ inability to comply with terms.

The waiver comes in response to President Donald Trump’s Executive Order No. 13924 – Regulatory Relief to Support Economic Recovery, issued May 19.

Marijuana tops list of substances identified in CMV drivers’ failed drug tests: FMCSA

red-semi_wet-road.jpg

Photo: vitpho/iStockphoto

Washington — The first report to use data from the Federal Motor Carrier Safety Administration’s new Drug and Alcohol Clearinghouse shows that, from the database’s Sept. 28 launch through May, marijuana was the most common substance found in positive drug and alcohol tests among commercial motor vehicle drivers.

The national online database – aimed at enhancing road safety by providing, in real time, the names of CMV drivers who fail drug and alcohol tests – identified 10,388 positive tests for marijuana. Cocaine (3,192) and methamphetamine (2,184) were the next most common substances detected.

Under federal regulations, motor carriers must conduct pre-employment drug testing in addition to random testing. Employees who test positive are prohibited from performing safety-sensitive functions, which includes operating a CMV.

According to the report, 19,849 CMV drivers had at least one violation and were unable to operate until completing the return-to-duty process – including 15,682 drivers who had yet to begin the process.

In an article published June 15 in the Owner-Operator Independent Drivers Association’s Land Line magazine, Amber Schweer, supervisor of OOIDA’s drug and alcohol consortium, said the legalization of marijuana for medicinal and/or recreational use in numerous states may be complicating the problem.

“There is a huge misconception that just because it is legal on the state level that it will be OK on the federal level,” Schweer said. “That is not the case.”

CBD products also figured to factor into the findings, Schweer added. In a Feb. 18 policy and compliance notice, the Department of Transportation cautioned that CBD products may contain higher levels of THC – the main psychoactive ingredient in marijuana – than DOT allows in a controlled substance. DOT added that CBD use is not a “legitimate medical explanation” for a safety-sensitive employee who tests positive for marijuana.

“There are so many companies that claim you won’t test positive using their product when in reality they cannot guarantee that,” Schweer said. “Drivers are not heeding the warnings that are put out there and, unfortunately, are facing expensive and detrimental consequences to their career.”

Overall, the clearinghouse observed 21,156 positive tests for substance misuse among CMV drivers during the reporting period. Multiple substances can appear in positive tests, FMCSA notes in the report, which does not include the total number of tests conducted. Future reports are set to be released monthly. Employers made more than 905,000 queries into the clearinghouse since it was fully implemented Jan. 6.

FMCSA Grants Temporary 90-Day Waiver for Certain Pre-Employment Testing Requirements

On June 5, 2020, the Federal Motor Carrier Safety Administration (“FMCSA” or “Agency”) issued a three-month waiver in response to the “economic emergency” created by the Covid-19 pandemic, relieving employers of the obligation to conduct pre-employment drug testing of commercial motor vehicle drivers who have been furloughed for more than 30 but less than 90 days.

Normally, if the driver has been furloughed or laid off for more than 30 days and was not subject to random controlled substances testing, the employer must conduct another pre-employment test before placing the driver in a safety sensitive position. Now, the employer can forego the testing, provided certain other standard requirements are still met.

As they say, the devil is in the details. Employers wishing to take advantage of this waiver are encouraged to read the FMCSA’s web post closely to insure they are complying with its terms, conditions and restrictions. The FMCSA was able to justify issuing this waiver from a safety perspective because of the existence of the Clearinghouse, which went live in January 2020, as it provides employers with “a useful new tool for identifying drivers’ drug and alcohol program violations that did not exist at the time the Agency enacted the original 30-day limit for the exception found in § 382.301(b).”

This 90-day waiver expires September 30, 2020. After that, employers will need to revert to following the original 30-day rule.

Operation Safe Driver Week slated for July 12-18

osd.jpg
Photo: Commercial Vehicle Safety Alliance

Greenbelt, MD — Law enforcement officers are expected to keep an extra sharp watch for commercial and passenger vehicle drivers engaging in unsafe behaviors July 12-18 during the Commercial Vehicle Safety Alliance’s annual Operation Safe Driver Week.

Officers will be looking for drivers who are texting, following too closely, not wearing seat belts or maneuvering in otherwise unsafe manners, while placing added emphasis on speeding.

A May 12 CVSA press release cites recent findings from the Governors Highway Safety Association showing that state highway officials nationwide “are seeing a severe spike in speeding” as traffic volume has decreased as a result of quarantines and stay-at-home orders related to the COVID-19 pandemic. Preliminary estimates from the National Safety Council show that, in March, the rate of motor vehicle deaths in the United States was 14% higher than in March 2019 despite fewer drivers being on the road.

CMV and passenger vehicle drivers in North America received nearly 47,000 citations and around 88,000 warnings during last year’s Operation Safe Driver Week, per data collected from law enforcement personnel. Citations and warnings related to speeding were most common, with CMV drivers receiving 1,454 citations and 2,126 warnings, and passenger vehicle drivers receiving 16,102 citations and 21,001 warnings.

“It’s essential that this enforcement initiative, which focuses on identifying and deterring unsafe driving behaviors such as speeding, go on as scheduled,” CVSA President John Samis said in the release. “As passenger vehicle drivers are limiting their travel to necessary trips and many [CMV] drivers are busy transporting vital goods to stores, it’s more important than ever to monitor our roadways for safe transport.”

FMCSA seeks to close ‘loophole’ that lets CMV drivers who fail drug, alcohol tests get licenses

failed-drug-test.jpg

Photo: KLH49/iStockphoto

Washington — The Federal Motor Carrier Safety Administration is seeking input on a proposed rule that would ban states from issuing commercial driver’s licenses to operators with existing drug or alcohol violations, in an effort to eliminate a “regulatory loophole.”

The proposed rule, published in the April 28 Federal Register, also would prohibit state driver’s licensing agencies from renewing, upgrading and transferring CDLs for those operators.

FMCSA contends that although its online Drug and Alcohol Clearinghouse – fully implemented in January – provides real-time national data on commercial motor vehicle drivers who have failed drug and alcohol tests, most states remain unaware that the violations have occurred.

“Consequently, there is no federal requirement that SDLAs take any action on the license of drivers subject to that prohibition,” FMCSA states. “As a result, a driver can continue to hold a valid [commercial learner’s permit] or CDL, even while prohibited from operating a CMV under FMCSA’s drug and alcohol regulations.”

Provisions of the clearinghouse require employers and medical review officers to report information about drivers who test positive for drugs or alcohol, or who refuse to comply with testing. Substance misuse professionals must report information about drivers who participate in the return-to-duty drug and alcohol rehabilitation process.

The proposal outlines two possible methods for determining the process by which SDLAs would access driver-specific information from the clearinghouse:

  • Require SDLAs to initiate a mandatory downgrade of the CLP and CDL driving privilege. Drivers would be required to complete the [return-to-duty] process and comply with any state-established procedures for reinstatement of the CMV driving privilege.
  • Provide SDLAs with optional notice of a driver’s prohibited status from the clearinghouse. The states would decide whether and how they would use the information under state law and policy to prevent a driver from operating a CMV.

Under the second alternative, SDLAs could choose to receive “push notifications” from the clearinghouse when drivers licensed in their state are prohibited from operating CMVs because of violations of drug or alcohol regulations.

Comments on the proposed rule are due June 29.

FMCSA final rule amends trucker hours-of-service regulations

semis-on-highway.jpg

Photo: vitpho/iStockphoto

Washington — The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

Under the rule, announced in a May 14 agency press release and slated to take effect 120 days after publication in the Federal Register, FMCSA will:

  • Change the short-haul exception to 150 air miles from 100, and 14 hours on duty from 12, to be consistent for rules with long-haul truck drivers.
  • Extend the current 14-hour on-duty limitation by up to two hours when a truck driver encounters adverse driving conditions.
  • Revise the current mandatory 30-minute break for truck drivers after eight hours of continuous driving.
  • Reinstate the option for splitting up the required 10-hour off-duty rest break for drivers operating trucks equipped with sleeper berth compartments.

On the heels of multiple delays, FMCSA published a proposed rule in the Aug. 22 Federal Register and set an initial comment deadline of Oct. 7. The comment period later was extended to Oct. 21. FMCSA weighed nearly 8,200 comments on the proposed rule and, on March 2, submitted the proposal to the White House Office of Management and Budget for review.

The final rule does not include a proposed provision that would have allowed covered commercial motor vehicle operators one rest break of up to three consecutive hours during every 14-hour on-duty period.

Secretary of Transportation Elaine Chao addressed the final rule in a May 14 video published to the Department of Transportation’s YouTube channel.

“These new commonsense rules give truckers more options when planning their days,” Chao says. “They will help drivers reach their destination safely without feeling like they’ve got to race against the clock to comply with federal mandates. They will also help truckers get the rest they need when they need it. When safety rules make sense, drivers are better able to comply, and that benefits everyone.”

Managing transportation worker distraction amid COVID-19: NSC hosts webinar

trucks.jpg

Photo: WendellandCarolyn/iStockphoto

Itasca, IL — Concerns about the COVID-19 pandemic are creating distractions for many commercial drivers, putting the safety of these essential employees – and others – at risk, Brian Fielkow, CEO of Houston-based Jetco Delivery, said during an April 17 webinar hosted by the National Safety Council.

“Let’s face it, none of us are running right now with perfect clarity like we would’ve been a month or two ago,” Fielkow said during the webinar, which focused on safety in the transportation industry amid the pandemic. “[Transportation workers] are concerned about their health. They’re concerned about their family’s health. Maybe there are family members in poor health that they can’t visit.”

Other concerns include worries about layoffs, leaving home while under stay-at-home orders from respective governors and being assigned routes to COVID-19 hot spots.

“If you think the cellphone is a distraction – and it is – consider the impact of COVID,” Fielkow said. “That’s important because you have to approach your employees as if they’re distracted.”

Leaders and managers need to acknowledge worker concerns and “adjust your style to understand and manage distraction,” he said. “Lead with a firm commitment to safety, but with empathy, too. COVID-19 requires us to change how we lead.”

The Federal Motor Carrier Safety Administration on March 18 expanded a national emergency declaration, granting temporary exemption from federal hours-of-service regulations to commercial motor drivers transporting items intended to help in the COVID-19 relief effort. Fielkow is concerned about the exemption.

“Fatigue doesn’t care if we’re in a crisis or if we’re in normal times,” he said. “I’d be very, very careful about disregarding the hours-of-service rules, even if you’re hauling COVID-related materials, because fatigue is fatigue. Let’s be sure that we’re focused on safety above compliance.”

During this crisis, drivers might need more frequent breaks and more say over assigned routes. “Don’t force work,” Fielkow said. “If an employee is not comfortable with a particular assignment, you can’t force it.”

Fielkow also encouraged employers and managers to check in frequently with drivers about any concerns or questions they might have.

“We’ve done that in our company a couple of times and we’ve gotten great questions,” he said. “Those questions led to discussions and conversations, then an understanding that we can be safe and we can operate with a clear head in the COVID-19 era.”

Fielkow described a situation in which a trusted, reliable employee was having performance issues and making mistakes.

“It may be that they’re distracted,” he said. “What you’ve got to do is diffuse that distraction, stay firm on the safety issues, but put the rule books and discipline forms away. Let’s coach. Let’s call time-out. If we start inundating people with every (safety) rule out there, we’re going to lose our peoples’ minds. We’ve got to narrow the focus to what’s most important.”

Employers must understand that their clients and vendors are most likely following the same best practices when it comes to safety and health as well. To do so, Fielkow said having those conversations can advance the topic.

“You’ve got to be a resource that gathers resources,” he said, noting many industry associations are offering free COVID-19-related resources that can be downloaded and shared with clients and vendors.

Jorge Chavez, a Jetco Delivery driver with more than 15 years of experience, discussed his work delivering essential supplies to grocery stores and other businesses during this time.

“For us as professionals, we have to be extra vigilant and alert – checking our mirrors, increasing our following distance, because people could be scared,” Chavez said. “They could be distracted.”

To ensure his own safety, Chavez said staying connected with news about the pandemic, along with federal and local safety guidance updates, has been critical.

“I’m also reading all emails from my company, making sure we’re on the same page,” he said.

ADOT offering virtual training to truck drivers in Mexico

Webinars help officers continue promoting commerce during pandemic

BLU Webinar Presentation

PHOENIX – An Arizona Department of Transportation program that helps truck drivers in Mexico better understand and prepare for safety inspections at the border is using technology to provide virtual training during the current public health situation.

The goal of this training offered by ADOT’s Border Liaison Unit is reducing commercial vehicle wait times at the international border by cutting down on safety problems and other issues that truck drivers must address before leaving commercial ports of entry. That helps make Arizona’s ports more appealing places for trucks to enter the U.S.

Part of ADOT’s Enforcement and Compliance Division, which operates commercial ports of entry, the Border Liaison Unit offered its first training by webinar recently for 30 trucking companies from the Mexican states of Sonora and Baja California. More sessions are planned.

“The webinar was a huge success,” said Officer Frank Cordova of the Border Liaison Unit. “We’re looking to make webinar-based workshops a staple of the training we provide, as it allows us to reach even further into Mexico and the U.S. to continue educating the commercial industry.”

The Border Liaison Unit saw an increase in inquiries from Mexican truckers regarding current emergency restrictions and exemptions for commercial vehicles due to COVID-19. Future sessions will cover safety training previously conducted in person such as electronic log books and critical items officers look for in inspections.

That assistance complements International Border Inspection Qualification training that ADOT has offered in person since 2016. Drivers certified through that program are able to share questions and pictures of their vehicles via WhatsApp and communicate with ADOT officers about potential safety issues before driving to the border.

Meeting this demand with a webinar helps ADOT officers and commercial truck drivers observe social distancing. Longer-term, offering virtual instruction reduces travel expenses.

“I’m very proud of this unit for finding ways to continue to work with our local and international partners in the trucking industry,” Cordova said. “Even a pandemic won’t keep us from doing the job we’re passionate about.”

FMCSA CDL Waiver

Waiver in Response to the COVID-19 Emergency –
For States, CDL Holders, CLP Holders, and Interstate Drivers Operating

Commercial Motor Vehicles

March 24, 2020

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA grants, until June 30, 2020, a waiver from certain regulations applicable to interstate and intrastate commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders and to other interstate drivers operating commercial motor vehicles (CMVs). The Agency has initiated this action in response to the President’s declaration of a national emergency under 42 U.S.C. § 5191(b) related to Coronavirus Disease 2019 (COVID-19).

DATES: This waiver is effective March 20, 2020 and expires on June 30, 2020. Read More»

FMCSA Increases Random Drug Test Rate to 50% for 2020

The Federal Motor Carrier Safety Administration is increasing the minimum annual percentage rate for random controlled substances testing for truck drivers.

According to a document published in the Federal Register on Dec. 27, the agency is increasing the minimum annual percentage rate for random drug testing from 25% of the average number of driver positions to 50% of the average number of driver positions. This change will take effect Jan. 1, 2020.

For reference, FMCSA estimates there are 3.2 million commercial driver license holders participating in interstate commerce and 1 million CDL holders participating in intrastate commerce. Under the annual random testing rate of 25% of all driving positions, this meant at least 1.05 million random controlled substances tests were to be conducted. With a new annual random testing rate of 50%, approximately 2.1 million random tests will need to be conducted in 2020.