Safety Information and Updates

On May 2, 2023 the Department of Transportation (DOT) published a final rule in the Federal Register authorizing oral fluid testing as a method of conducting DOT controlled drug tests.  This amended rule became effective on June 1st.  

While the rule is now in effect, carriers shouldn’t rush out and start utilizing oral fluid testing as part of their DOT controlled drug testing process just yet.  For an employer to implement oral fluid testing, the U.S. Department of Health and Human Services (HHS) must first certify at least two laboratories to conduct the testing.  Unfortunately, this has not been done yet.  

According to a June 1st article by Jason Cannon, chief editor of the Commercial Carrier Journal, the National Drug Screening President, Joe Reilly recently said, “no labs have even applied for HHS approval yet.  I met with all of them last week and all said late 2023 or early 2024 before they expect to be approved and operational with oral fluid testing,”

Once labs do get approved, and the process of using oral fluid for DOT tests can start, there will be several key advantages.  Perhaps the biggest of which is that it is significantly more difficult, if not impossible to “cheat”.  Many experienced drug users are routinely ready or prepared to be selected for a DOT test with either synthetic or borrowed urine that they substitute for their own in order to “pass” the test.  Because the oral fluid test occurs directly in the presence of the tester, who physically swabs the cheek of the person being tested, cheating is virtually impossible, unlike with urine tests which are most often done behind closed doors to protect people’s privacy.  

This brings up another huge advantage.  Oral fluid testing can be done virtually anywhere with no need for an actual restroom.  Satellite locations that might not have a restroom can still be used for oral fluid testing, as long as there is some location for the person being tested to meet the person conducting the test.    Additionally, oral fluid testing virtually eliminates the issue of a “shy-bladder” for those who might not be able to produce enough of a urine sample to be tested.  

There are a few things to consider before implementing oral fluid testing.  While the rule was passed allowing the practice, it doesn’t necessarily mean it has to replace previous methods of testing.  While there are some distinct advantages, blood and urine testing are still accurate and reliable testing methods, and the regulations do not mandate one method over the other, and carriers are not required to pick one method or the other.  Carriers have the choice of which method of testing to use each time a test is needed.  This being said, if a carrier does choose to move forward with oral fluid testing, it’s advisable to update your controlled drug and alcohol testing policy to be consistent with current regulations and practices involving this type of testing.  

On January 6, 2020, the Federal Motor Carrier Safety Administration (FMCSA) instituted a “clearinghouse”, or online database where information about commercial driver’s license (CDL) holder’s drug and alcohol violations are maintained. (For a refresher on the Cleaninghouse, go here: FMCSA Clearinghouse )

Despite having a secure online repository providing real-time information about CDL holder’s drug and alcohol violations, potential new employers have still been required to perform inquiries to all DOT regulated former employers where the prospective employee performed a safety sensitive function within the previous three years. Soon this will no longer be the case.

Effective January 6, 2023, the Clearinghouse will turn three years old. This means that for the first time ever, there will finally be three years of information contained in the Clearinghouse, so prospective employers will no longer be required to perform the drug and alcohol portion of the previous employer inquiry. Great news, right? Not so much. Unfortunately, while the Clearinghouse will satisfy the drug and alcohol portion of employment verifications required by 49 CFR §391.23(e), prospective employers will still be required to satisfy the requirements of 49 CFR §391.23(d) pertaining to accident information.

So what does this mean? As an employer of a new CDL driver, you will still be required to perform the previous employer inquiry to any employer the driver worked for as a CDL driver in the past three years. You won’t HAVE to inquire about their drug and alcohol history, but you will have to ask about any DOT recordable crashes they were involved in. Similarly, as a previous employer of a driver who may have left to seek employment elsewhere, you will no longer be required to provide information about the former employee’s drug and alcohol history, but you will still be required to provide answers about their recordable accident history.

While nothing prevents former or prospective employers from continuing to ask for, or continuing to provide drug and alcohol information, the only real change is that this information will no longer be required. Inquiries will still need to be made, and responses will still need to be given. The only change is to exactly what is required to be asked for, and what is required to be provided.  

IFor more information on the clearinghouse and specific requirements, check their site here: https://clearinghouse.fmcsa.dot.gov/

The FMCSA has just closed the commenting for changes they are considering in Hours of Service rules, particularly concerning breaks. The commentary period was meant to solicit opinions from drivers and transportation industry folks to see what those that the rules would affect in real life thought about the proposed changes. 

Below is a quick breakdown of some current HOS rules and how they could change under this proposal:

• Currently drivers are limited to 11 hours of driving within a 14 hour on-duty window, and then are required to take 10 consecutive hours off-duty before driving again. Additionally, they cannot drive after working more than 8 hours without an off-duty rest break of at least 30-minutes.
• Proposed changes would count 30 minutes of "non driving" time as a break, so for instance, if there was an accident, or roadwork, or traffic was horrendous and you pulled off the road, you could be on duty but not actively driving and have that be a break, versus having to go completely off duty. Another example would be 30 minutes spent loading or delivering product being counted as on-duty break time, so taking an additional 30 minute break would no longer be required.
• An additional off-duty break of at least 30 minutes (but less than 3 hours) would pause the 14 hour window (so say you stopped an hour, you would essentially "gain" an hour on the other side because of the pause, so instead of having to clock out at 3pm it would bump to 4pm, etc) but this would only be in effect if you had a 10 hour reset (consecutive) following.
• Short-haul truckers would also be allowed up to 14 hours on duty (from the current 12) and the mileage radius would expand to 150 miles (from 100). 

All of the above are meant to address some rigidity in the HOS rules as they are currently, where often road conditions, accidents, construction, or simply the timing of traffic adds up to essentially non-productive time for drivers and potentially causes people to push through versus taking breaks as needed. 

Having some flexibility in taking the 30 minute break, for example, could mean that instead of sitting in gridlock at 7am behind a major accident, you could pause 60 minutes then jump back on the road at 8am, when it cleared, without losing the hour on the other end - and without sitting at a standstill in traffic. (The fuel savings, and decreased aggravation of that option alone makes it seem appealing).

The idea with flexibility is to improve the efficiency and the experience for drivers, and allow them to make safety conscious decisions about when and how long they need to be taking breaks, without being too boxed in by HOS hard lines to get their work done. The goal being balance, where there is still rest and ample breaks, but the on-hours remain flexible enough to allow people to actually TAKE the breaks without worrying about scrambling to catch the time or distance up to hit deadlines.  

The FMCSA Clearinghouse deadline is January 6th, 2020, which believe it or not, is only a few weeks away. While CDL drivers do not technically need to register immediately, they will need to do so for mandatory employer pre-employment inquiries so it's better to just get it out of the way now.

The clearinghouse will be a comprehensive database with information on CDL holders' drug or alcohol violations, as well as information on whether that driver has completed required rehabilitation in order to return to work legally. The requirements are applied to ALL CDL drivers, from school bus drivers to interstate truckers. Violations will include any positive drug or alcohol test, DUI conviction, refusal to submit to testing, or acknowledgement of a substance abuse issue. 

Employers, medical review officers and third party administrators will be legally required to report drug or alcohol violations to the database. Employers will also be required to query the database to confirm new hires are eligible to work (no violations, or have completed required rehabilitation) and will also need to annually query to make sure current employees remain eligible to be a commercial driver. State licensing agencies (like the MA RMV) will also be required to query the system when reissuing CDL licenses. 

The goal of the database implementation is to ensure that CDL holders who have drug or alcohol violations are removed from the road until they have fulfilled steps to show they are a safe operator again.

This past summer the State of Massachusetts had an extremely tragic example of what can happen when CDL license holders are not properly vetted by licensing agencies and/or employers in regard to their drug or alcohol violations when a multiple violator killed 7 motorcyclists in New Hampshire while under the influence. Comprehensive, multi-agency efforts like the FMCSA Clearinghouse are put in place to make sure the proper checks are in place to get unsafe drivers off the road, and try to reduce the likelihood another incident like the one in New Hampshire happens again.     

The DOT has a great powerpoint presentation that runs through some of the major points regarding the Clearinghouse that you can access here: Final Rule: Commercial Driver's License Drug & Alcohol Clearinghouse

You can also access the full rule text here: Commercial Driver's Drug and Alcohol Clearinghouse

Friendly reminder that December 16th 2019 is the Federal Motor Carrier Safety Association (FMCSA) hard deadline for the Electronic Logging Device Mandate. There have been some "soft" deadlines and delays on this mandate over the last several years but there is no indication we will see another delay, so if your fleet is not fully converted to ELD, definitely get moving on that ASAP.  

We have personally been running E Logs for almost a decade, it made sense for our fleet and our footprint and we like the accuracy and uniformity of the data we get from our system. I will say there is definitely a learning curve involved in making a change over of any kind though, especially one involving software.  But this particular change actually does really make life easier in the big picture when it comes to making sure you are in HOS compliance, and in terms of pulling information for any kind of audit or certification, etc. 

Anyway - if you haven't moved your fleet to ELDs, the time is now. Don't wait til you are fined to get compliant. Good luck!