On 3/13/20, the Federal Motor Carrier Safety Administration (FMCSA) issued an unprecedented national emergency declaration to provide hours of service (HOS) relief to drivers transporting goods needed to respond to the Coronavirus Pandemic. Those commercial motor vehicle (CMV) operations exempted include those meeting needs for:
- Medical supplies and equipment related to testing, diagnosis and treatment of COVID-19;
- Supplies and equipment, including masks, gloves, hand sanitizer, soap and disinfectants, necessary for healthcare worker, patient and community safety, sanitation, and prevention of COVID-19 spread in communities;
- Food for emergency restocking of stores;
- Equipment, supplies and persons necessary for establishment and management of temporary housing and quarantine facilities related to COVID-19;
- Persons designated by federal, state or local authorities for transport for medical, isolation or quarantine purposes;
- Personnel to provide medical or other emergency services.
The exemption extends to the driver returning to the carrier’s terminal or the driver’s normal work reporting location. However, once those staging areas are reached, the HOS-exempt driver must have 10 hours off duty if transporting cargo and 8 hours off duty if transporting passengers. A copy of the Emergency Declaration may be found here.
On 3/2/2020, the FMCSA sent a final rule on HOS changes to the White House. As we previously reported to you, the notice of proposed rulemaking sought the following changes to HOS regulations:
- Extend on-duty time by 2-hours for adverse weather;
- Extend the “short haul” exception from 100 air-mile radius to 150 miles and increase allowable drive time from 12 hours on-duty to 14 hours;
- Allow drivers to split the required off-duty time into two periods: one period of at least 7 consecutive hours in the sleeper birth and a second period of not less than 2 consecutive hours either off-duty or in the sleeper berth;
- Allow one off-duty break of between 30 minutes and 3 hours that would pause the 14-hour driving window as long as the driver takes 10 consecutive hours off-duty at the end of the shift.
Since the electronic logging device (ELD) mandate took full effect in December 2019, the FMCSA has seen Hours of Service (HOS) violations decrease by 50%. However, the FMCSA has seen a significant increase in
log falsification after an initial decline in the violation. The FMCSA suggested the dramatic increase in falsifications is a result of inspectors becoming more proficient with the ELD systems rather than a greater share of drivers falsifying the logs. The FMCSA expects to see falsifications decline over time.
On 2/14/2020, the public comment period closed regarding the National Association of the Deaf’s (NAD) petition to end certain medical examination requirements for commercial driver’s license (CDL) applicants. Specifically, the NAD’s petition seeks an end to the requirement that CDL holders pass a hearing test and be able to speak without a translator as violations of the Rehabilitation Act of 1973. Currently, a driver must “perceive a forced whisper voice in the better ear at not less than 5 feet with or without the use of a hearing aid.” Drivers who fail the hearing test may seek an exemption. The FMCSA has granted 450, five-year exemptions since it began doing so in 2012. In 2017, the FMCSA studied the safety ratings of 217 exempted drivers and concluded that these drivers had a lower crash rate than the national average and lower violation rate and fewer out of service violations than the study’s control group.
On 2/28/2020, the FMCSA announced a study to assess the prevalence, seriousness, and nature of harassment against female and minority male commercial drivers. As justification for the study, the FMCSA cited a 2006 article by the Security Journal, which reported 42% of female commercial drivers experiencing one or more instances of workplace violence and a 2017 USA Today article documenting harassment of minority, male drivers. The FMCSA expects the anonymous survey to be given to 880 drivers, including 80 who had previously reported no incidents and 800 respondents who have reported one or more incident.
On 2/21/2020, the FMCSA announced that the Drug and Alcohol Clearinghouse has registered nearly 8,000 violations since going live on 1/6/20. The Clearinghouse currently has over 650,000 registrants and must be used by carriers to check CDL holders’ violations in pre-employment drug screenings and at least once per year. State agencies may voluntarily query the Clearinghouse but will be required to do so beginning 1/6/2023.
On 2/18/2020, the Department of Transportation (DOT) issued a compliance notice warning drivers of mislabeled hemp-based cannabinoid (CBD) products that may contain illegal levels of tetrahydrocannabinol (THC), the intoxicating substance in marijuana, and result in a positive urine drug screen. Hemp products are legal when containing less than .3% THC; however, because the Food and Drug Administration (FDA) does not certify CBD products, there is no oversight to ensure labeling is accurate. Currently, urine drug screens do not test for CBD.
The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2020 Hedrick Gardner Kincheloe & Garofalo LLP