Balancing privacy and safety

Jan. 5, 2017
Changes in recordkeeping requirements challenge fleets in the digital age

With regulations as the catalyst, changes are on the way for the records trucking companies keep, including a new national information data­base and electronic logging devices, or ELDs, and related files and documentation. Regulations are also bringing new filing processes and already allow for digital record changeovers instead of controlled-access file cabinets holding papers for various lengths of time.

Technology has become integral to how motor carriers’ back offices run, but it’s also become a balancing point with, on one side, public safety and the recordkeeping that it entails; on the other is truck drivers’ privacy and information that in the past could be kept private. And it is technology that is changing how carriers access and use that information.

It could be that elements of the outgoing Obama administration’s regulatory activity are delayed or see some changes after the executive branch changeover. The Trump administration is expected to put a moratorium on in-process regulatory activity, but, indeed, the U.S. Dept. of Transportation (DOT) just squeaked past that by issuing a final rule on a drivers’ drug and alcohol adverse test results information clearinghouse.

Adjustments notwithstanding, carriers need to be aware of how the records they keep are evolving.

Going (or gone) digital

Concerning the very specific information carriers must keep as proof their drivers can legally be behind the wheel of a commercial motor vehicle, the driver’s qualification (DQ) file is one of the most important groups of records.

So says safety and compliance consulting firm J.J. Keller & Associates, which points out that a DQ file must include:

◗ The driver’s job application;

◗ Motor vehicle record, or MVR, from time of hire;

◗ Road test form and certificate, or photocopy of commercial driver’s license (CDL); and

◗ Safety performance history (as of 10/30/2004) or previous employer inquiry (prior to 10/30/2004).

This information must be kept in the DQ file for the time the driver is employed plus a further three years.

For each CDL driver, the carrier also must have:

◗ Annual MVR update and annual review of driving record;

◗ Annual list of violations; and

◗ Current medical examiner’s certificates, any medical exemptions/waivers, and notes concerning National Registry verification.

That second set of records must be kept for three years, according to J.J. Keller. Jill Schultz, transportation safety editor at the company, notes also that CDL driving privileges are tied to medical certification. Each time a driver updates his or her medical certification , the driver provides a new medical card to the state driver licensing agency, the agency updates the driver’s info within 10 days, and the motor carrier must get a new MVR within 15 days.

That’s going to change. Heather Ness, transportation operations editor at J.J. Keller, says a 2015 rule is revamping the notification process. “In a nutshell, in June 2018, CDL drivers won’t have to give their med cards to the state anymore,” she says. Instead, doctors will transmit medical certification exam information electronically to the Federal Motor Carrier Safety Administration (FMCSA), which then will inform the relevant state.

Timeframes will shorten once electronic file transfer is up and running. “Once the system is in place, the MVR will be the only official proof that a CDL driver is medically qualified, so companies will only have a day or two after each medical exam to get a new MVR, not 15 days,” Ness points out. “It also means you and your CDL drivers won’t have to worry about getting a copy of the medical cards and turning them in to the state licensing agency.”

DOT interprets the regulations to mean that motor carriers can use digital recordkeeping methods like scanned or computerized documents and authenticatable digital signatures. “You are allowed to create and store almost any DOT-required document electronically as long as it meets certain standards and as long as you can produce the record on demand, just like a paper record,” says Schultz. On that note, J.J. Keller advises being ready to print electronic documents in case that’s an auditor’s preference.

Standards for digital records are similar to those for photocopies, Schultz adds. “Photocopies of documents are perfectly acceptable as long as they’re clear, contain all required information, and are as legible as the originals,” she explains.

There will be new rules regarding the supporting information for drivers’ hours-of-service documents. As of Dec. 18, 2017, most CDL drivers will be using some form of electronic driver logs, for one thing, which will transform many paper logs filed across the industry to digital ones.

Electronic logging devices will have security protocols built in for transferring data to FMCSA, law enforcement, and the carrier’s office, notes Tom Cuthbertson, vice president of regulatory compliance at fleet management systems company Omnitracs.

“Supporting documents are records that you generate in the ordinary course of business that can be used to verify drivers’ logs,” Schultz explains. “Essentially, they put the driver in a specific location at a specific time, and examples include things such as bills of lading, toll receipts, and dispatch records.”

The final rule on ELDs spells out that motor carriers will need to keep driver log files as well as up to eight documents to support any 24-hour period of log time with the supporting documentation organized by specific day for six months. Still, “part of going to electronic logs is getting rid of some paper,” notes Joe DeLorenzo, director of the FMCSA Office of Enforcement and Compliance.

The ELD rule “actually gives you a break,” he contends. “In this particular case, we scaled back on the amount of supporting documents that we require trucking companies to keep in support of drivers’ hours of service—we put them in categories and we put limits on the number of documents that you have to keep.

“So operationally, you now need to consider how this is going to work with your ELD and how you’re going to work your hours-of-service compliance,” he continues.

Alcohol and drug info clearinghouse

Now effective under an FMCSA final rule with compliance required within three years, a recently made, long-awaited change is a national database to be established for drivers’ adverse drug and alcohol test results. The final rule materialized Friday, Dec. 2, ending a regulatory rulemaking process dating back to February 2014.

The clearinghouse is meant to close a loophole by which CDL holders who test positive for drugs or alcohol or refuse to be tested can “slip through the cracks” and simply get hired at another carrier to avoid those records following them. The clearinghouse “addresses the situation in which drivers can conceal their drug and alcohol violations merely by moving on to the next job or the next jurisdiction,” FMCSA states in the final rule.

Federal regulations already require carriers to conduct pre-employment screening of CDL drivers, but “there has not been a single federal repository recording positive drug and alcohol tests by CDL holders that employers would be able to search,” FMCSA noted when it issued the 2014 proposed rule. The federal database that the agency will be constructing aims to make these background checks easier.

It will contain information on drivers (1) failing drug or alcohol tests, (2) refusing to take those tests, and (3) completing a return-to-duty program for substance abuse. Carriers will be required to search the clearinghouse during pre-employment screening and at least once a year for existing employees.

A key consideration with this clearinghouse, not surprisingly given its sensitive nature, will be privacy and security. “The clearinghouse will be administered and maintained in strict compliance with applicable federal security standards,” according to FMCSA. And that’s what is yet to be designed as the clearinghouse takes shape, notes Lana Batts, president of driver background check company Driver iQ.

“There are a lot of safeguards around those records that are not around other records,” she tells Fleet Owner concerning drug and alcohol test information. “All the way around, the regulations were designed to protect those records and driver privacy, and there’s a good deal of extra work that it takes.” She notes that CDL driver applicants are required to sign a separate release form that allows an employer to obtain these specific records.

That’s where a gray area begins to emerge. For example, a driver who’s a recovering alcoholic and has positive alcohol test results in his or her past could view the clearinghouse’s information as protected medical information, which would fall under the Health Insurance Portability and Accountability Act, or HIPAA. However, FMCSA addressed that point particularly in the final rule, arguing that clearinghouse info does not fall under HIPAA protections but rather under certain—but not all—requirements of the Fair Credit Reporting Act.

Looking at the restrictions surrounding these existing records provides clues to how the clearinghouse will operate. “Back in the mid-1990s, there was all of this concern about drug and alcohol test results within a trucking company” and requirements for how and where drug and alcohol information is kept, Batts notes. “They’re now stored electronically, but the regulations really are almost like they had to be in the 1990s.”

“For example, when we’re processing an individual and we get those drug and alcohol records, they are all handled separately,” she explains, describing a driver background check. “It’s not like a [Dept. of Motor Vehicles] record, where I can just shoot it right through. We actually have to have a set of eyeballs look at a drug and alcohol test record to make sure that it’s in compliance with FMCSA and that it’s for the right individual.”

Expectation of privacy

Along with electronic records, however, comes different access considerations and leakage potential. If Internet access is involved, there could be data breaches. But the reality is that papers that fleets used to keep on file are shifting to electronic formats in various ways.

Regardless of whether this information stays in the right hands, some drivers may feel that these records are reaching farther into personal information they don’t particularly wish to share with an employer. And information that could once stay hidden is in the shadows no more.

How will drivers perceive the changing information landscape? “If I’m a driver, what are my expectations of privacy in this industry? Why do I have to share all this information with everybody? This is my stuff, and I ought to be able to keep it private,” supposes Brad Klepper, executive vice president and general counsel of Drivers Legal Plan, a law firm representing CDL drivers. Essentially, as noted earlier, the trucking industry’s need for this information hinges on public safety—and Klepper points out that’s tough to argue against.

“For particularly regulated industries [like trucking], the expectation of privacy of an individual is going to be somewhat diminished,” Klepper says. “What you’re looking at, basically, are industries where safety is a big concern. The government’s interest here is to keep the people safe and the roads safe.

“It’s hard to overcome that,” he continues. “It’s awfully hard to say, ‘That’s not a good enough interest when it comes to adjusting my expectation of privacy.’”

Within reason

The coming drug and alcohol testing database and other changes might make some drivers uneasy, but it’s reasonable, Klepper says, for motor carriers and the government to want to know drivers’ histories when it comes to drug and alcohol use when they are operating tens of thousands of pounds’ worth of commercial equipment alongside the motoring public.

It’s medical certification—that other recordkeeping area with digital stuff happening—that some expect may be a chafing point with drivers. Already spoken about in the industry for years and recently showing signs of moving forward is mandatory obstructive sleep apnea testing, which is still in the rulemaking phase. But there’s been a related case where a company required sleep apnea testing on its own and dismissed a driver for not getting the test.

FMCSA already has an idea of what to look for in identifying drivers who might need testing. “There are recommendations that’ve been supported by the agency’s medical review board,” notes David Heller, vice president of government affairs with the Truckload Carriers Assn. “But the problem with those recommendations is that they seem to be industry-encompassing.”

In other words, it’s roping in everyone. “There is guidance right now that says to test for sleep apnea,” Heller says. “And here comes the bigger problem: You could say, if a driver has a body mass index greater than or equal to 40, send them for sleep apnea testing.

“That doesn’t mean they have sleep apnea; it just means they’re overweight,” he explains. “Then you go down a checklist [to determine whether to test]. It could be if you have a body mass index greater than or equal to 33 but less than 40, are age 42 or older, and are male—and now you basically are defining the trucking industry.

“We can’t have a test recommendation that defines the entire industry,” Heller continues.

Sleep apnea testing can be expensive, he points out, and adding it as a requirement for CDL medical certification isn’t yet set in stone “because we truly don’t know what the right answer is on this one,” he contends.

“Is sleep apnea a problem? Certainly—it’s a health problem, first and foremost, for drivers out there,” Heller argues. The question now, he says, is “what are the ‘bull’s eyes’ we should hit to actually find the problem and get it fixed?” 

About the Author

Aaron Marsh

Before computerization had fully taken hold and automotive work took someone who speaks engine, Aaron grew up in Upstate New York taking cars apart and fixing and rewiring them, keeping more than a few great jalopies (classics) on the road that probably didn't deserve to be. He spent a decade inside the Beltway covering Congress and the intricacies of the health care system before a stint in local New England news, picking up awards for both pen and camera.

He wrote about you-name-it, from transportation and law and the courts to events of all kinds and telecommunications, and landed in trucking when he joined FleetOwner in July 2015. Long an editorial leader, he was a keeper of knowledge at FleetOwner ready to dive in on the technical and the topical inside and all-around trucking—and still turned a wrench or two. Or three. 

Aaron previously wrote for FleetOwner. 

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