Since March 13, the Federal Motor Carrier Safety Administration (FMCSA) has published numerous declarations, guidance and waivers to keep commercial carriers operating through the course of the COVID-19 pandemic. Over the last six-plus weeks, there have been so many new publications coming out of the federal government, that it could be difficult to keep up.
In an effort to help the trucking industry remain compliant and keep more drivers on the road, Grady Phillips, president of Corporate Medical Services (CMS), joined the Women In Trucking Association for a May 1 webinar, COVID-19: FMCSA & Workplace Updates, where he broke down the nuances of the various FMCSA publications.
“From an MRO [medical review officer] perspective, we want to protect drivers and workers. However, we are also preparing for the inevitable lawsuits that are going to come out of this,” Phillips said. “As much as we want to get the job done, if you don’t take the time to get it right, and make sure you’re compliant when something happens, there will be someone who tries to assign blame and says that we did not do all we could at the given moment. That’s, unfortunately, part of the territory.”
The most recent FMCSA publications aren't exactly new, however. They are part of the agency’s existing regulations titled “Relief from Regulations,” Phillips noted.
“This is definitely of size and scope of activity that no one has ever seen before and ever used in a national context,” he said. “Typically, [regulatory relief] is used in regional disasters when people need to provide direct assistance.”
'Check your state'
Even though the federal government created these rules, individual states can decide whether or not to implement them, Phillips noted. While one state may or may not allow a commercial driver’s license extension, for instance, a different state may not change hours of service (HOS) or other exemptions.
Days after FMCSA published its emergency declaration on March 13, the agency put out a notice to state drivers licensing agencies (SDLAs) informing them that they cannot hold commercial drivers in noncompliance for not being able to extend their commercial driver’s license (CDL) and commercial learner’s permit (CLP).
“Check your state,” Phillips advised. “You’ve got federal and you’ve got state, and they are different. Unfortunately, this moved so fast and the feds didn’t have clear guidelines to give the states when they released their second SDLA report. Some states took immediate action, and we had several states that didn’t do anything. There has been a mismatch of action of what some states have taken.”
On April 17, FMCSA released a second report saying SDLAs will not be punished for failing to submit a notice of disqualification to the Federal Convictions and Withdrawal Database. This act ends either June 30 or when the state agency resumes operations or 90 days after the effective period of the notice.
As of April 30, FMCSA listed that 46 states have active emergency declarations. Check out the American Association of Motor Vehicle Administrators for a downloadable PDF of each state’s up-to-date records.
“The FMCSA can audit you, shut you down, fine you, and impact your safety scores, but the states are the ones that allow your drivers to be on the road,” Phillips said. “If you’re in a state where you can get a driver’s license renewed and get the medical card, don’t even worry about the rest. In these situations, you might not be able to do those things, and you have to fall back on some of these new federal and state declarations and executive orders.”
Medical certificates
For medical certificates, FMCSA’s waiver is only good for drivers carrying a valid CDL. If a state offers the full eight years that a CDL is valid, as required by the federal regulations, and it expires, that carrier would fall under the federal waiver. But if the state in which a carrier is licensed mandates a five-year CDL, that carrier would not meet the requirements of the waiver.
For drivers with less than the eight-year maximum period who have had the same valid CDL or medical certificate on Leap Day (Feb. 29), FMCSA will not take enforcement action for an expired CDL and will allow those drivers to operate. FMCSA also waives the requirement for drivers to submit a new medical certificate to SDLAs.
Phillips advised drivers to carry a paper copy of their expired medical certificate with the federal waiver to be safe. Drivers who cannot provide a medical certificate are not covered under the waiver, nor is a driver who has developed a disqualifying condition since his or her last physical, he added.
“What we are seeing in the real world is that people are able to get [their medical certification] done,” Phillips pointed out. “We are seeing that people are able to get in and get their physical. If you are in a geographic area where that is difficult and impossible, you certainly want to rely on this waiver. If you can accomplish getting a new physical performed for your drivers that is clearly the better alternative.”
Random testing
The Department of Transportation’s (DOT) Office on Drug and Alcohol Policy and Compliance issued a guidance that remains in effect until May 30. Although it does not reroute any law, it clarifies existing requirements. The major takeaway here, according to Phillips, is that DOT-regulated employers must continue to comply with the DOT training and testing requirements. The guidance does, however, recognize that carriers and drivers may not be able to achieve drug and alcohol testing compliance everywhere.
“If you’re in a hotspot, you might have difficulty accomplishing testing when and if it’s required,” he said. “So you should make a reasonable effort to locate testing services.”
FMCSA addresses random testing within its drug and alcohol testing guidance and explains that carriers should continue to make “reasonable efforts” to comply, but the agency realizes that it cannot be accomplished everywhere.
“When this all started back in early March, we suggested to our clients to consider reducing or eliminating random testing for the next couple months,” Phillips explained. “But as this has progressed, we see that clearly not every area of the nation is impacted the same way. If your operation is not clearly affected, the best thing to do, just like with everything else, is to keep going as normal. If you find there is no way to get your testing done, there is no harm in suspending or at least reducing your random testing for a period of time.”
Right now, drug and alcohol testing is based on service agent availability. Like commercial carriers, MROs are considered essential and have a duty to remain open. But testing always takes a backseat to treatment, Phillips added.
“In the real world, if a medical clinic has somebody that needs to be triaged, a drug test is not the first thing on their list, so it’s entirely possible that if you are in a hotspot, that service may be denied,” he said. “You need to document that you made reasonable efforts and move forward.”
