Am I exempt from the regulations? That, and other COVID-19 questions answered

Compliance is still required. Below is a summary of the top questions from the COVID-19 and Transportation: Understanding the exemption and keeping your fleet in compliance webinar. The full webinar can be heard here.

Exemption/direct assistance

1. What raw materials movements can be exempt?
   In order to qualify for the exemption, the raw material transported must be “precursor” materials to be used for products and services covered under the emergency exemption. Precursor raw materials can be interpreted fairly broadly. In fact, FMCSA has already stated that livestock, livestock feed and paper pulp can be considered precursor raw materials. The declaration states “immediate precursor raw materials,” so a livestock hauler hauling cattle to a processing location would be within the scope, but a hauler transporting calves to a feedlot might not be.
   
2. What is direct assistance?
   Direct assistance means transportation and relief services provided for the purpose of immediate restoration of essential services such as medical care or essential supplies such as food and fuel. The relief must be related to virus outbreaks during the emergency. Routine commercial deliveries are not eligible. For example, fuel is included as a covered commodity in the emergency declaration, but that does not mean that every delivery meets an immediate emergency need.
   
3. The Department of Homeland Security (DHS) has a list of essential services. If my operation is considered essential, does that mean that I can use the FMCSA’s emergency declaration and be exempted from safety regulations?
   The lists have some crossover but are for completely different purposes. The DHS list means that the operation is an essential service and those services have a responsibility to maintain their normal work schedule. In other words, essential service workers may need to continue working during periods of community restriction, access management, social distancing, or closure orders and directives because their work is crucial to community resilience and the continuity of essential functions. However, an essential service provider is not necessarily providing direct emergency assistance.

Drug and alcohol testing compliance

1. Can we suspend our DOT testing?
   No. Motor carriers that are subject to DOT drug and alcohol testing under FMCSA’s Part 382 were given guidance from the agency allowing for some flexibility until May 30, 2020, due to the COVID-19 pandemic. But, they must still:

• Perform required pre-employment tests and pre-employment queries of the Clearinghouse before performing a safety-sensitive function.
• Perform return-to-duty tests following a violation, and have SAP evaluation and treatment, etc. A driver is unable to return to a safety-sensitive function without this process being completed.
• Perform post-accident tests if possible, or document why it was not (e.g., unable to find testing site, past allowable time for testing)
• Perform reasonable suspicion testing if possible or document why it was not performed.
• Perform a follow-up test if possible, or document why it was suspended (driver on furlough, no collection sites) and pick up where it left off when possible. Similar to breaks in employment guidance.
• Conduct random tests if possible. If unable to do so, document why (unable to find collection site, driver in safer at home status, driver on leave of absence during the rest of the testing cycle). If you need the test to meet numbers, draw at a higher rate later in the year. Delay notifications until later in the cycle, if possible.
  
  2 . What if a driver won’t go for testing out of fear of COVID-19?
  This is a refusal to test once notified (with exception of pre-employment). This is why FMCSA suggests delaying notification until later in the testing cycle and to confirm collection sites are open and are sanitizing. If the driver fails to go or leaves the collection site without providing a specimen, it is a violation. It is a refusal to test, which holds the same consequences as a positive test.

Safety considerations

The emergency declaration exemption provides relief from Parts 390-399 of the Federal Motor Carrier Safety Regulations (FMCSRs). These sections provide some basic safety measures like being under the influence of drugs and alcohol and following state laws – speed limits for example.

1. Does this mean that drivers and carriers can operate however they see fit?
   No. Exempt carriers and drivers are still expected to operate safely. The FMCSA specifically did not provide relief from the drug and alcohol testing rules, CDL regulations, or permit the operation of a commercial motor vehicle while ill or fatigued. Carriers and drivers are still expected to operate safely.
   
2. While providing emergency relief, is my operation protected from litigation?
   No. A carrier and driver can still be held criminally and civilly liable in the event of a serious property, injury, or fatal accident. In fact, the prosecuting or plaintiff’s attorney’s case may be easier to make if the driver or carrier ignored basic good safety practices.
   
3. What documentation should I maintain?
   The emergency declaration does not require additional documentation. As a best practice, a carrier should be able to demonstrate that the driver was satisfied that the vehicle was safe to operate. Likewise, since the driver cannot operate when ill or fatigued or when likely to become ill or fatigued, the carrier should have a way to monitor a driver’s work and rest time. In an audit, compliance review, or court room, a carrier may be asked to demonstrate that the driver was exempt. This means retaining bills of lading and other shipment or trip documents.

Medical Cards

1. Who qualifies for the medical card COVID-19 exemption?
   A waiver is granted if the driver is unable to renew the card due to the outbreak and held a valid medical card as of February 29, 2020, that was valid for at least 90 days. The driver may continue to drive with the expired certificate until June 30. This applies to both CDL and non-CDL CMV drivers.
   
2. Does a short-term medical card of 30 days qualify?
   No, since the card had to be issued for at least 90 days.

Licensing

1. What are the terms of the licensing waiver?
   A driver will receive a waiver for an expired license if it is unable to be renewed due to the outbreak, was valid as of February 29, 2020, and expired or was downgraded on/or after March 1, 2020. The waiver is valid through June 30 and applies to commercial driver’s licenses (CDL), commercial learner’s permits (CLP), and non-CDL licenses.
   
2. When would a CDL driver have to provide proof of medical certification to protect CDL privileges?
   For CDL holders, based on the wording of the waiver, J.J. Keller advises drivers to have their updated medical cards to the State Driver Licensing Agency (SDLA) by June 20 so their driving record is updated by June 30, barring any additional guidance from the FMCSA. The waiver states that drivers are exempt from needing to provide their new medical cards until June 30, but it also says that SDLAs are only exempt from needing to downgrade drivers’ CDLs until June 30. An aggressive state could start downgrading on July 1.
3. Will all states recognize the licensing waiver?
   States are being given discretion by FMCSA when it comes to the decision to implement or use the waiver. Some states will choose to recognize the waiver and enforce accordingly, others will not.

How to get the webinar

In these trying times, regulatory compliance can’t be an afterthought. Failure to follow the rules – and the number of exemptions currently being issued makes that even more challenging – jeopardizes the fleet’s viability. At a minimum, violations could drive up insurance rates, and in a worse-case situation, could drive the fleet right out of business.

The COVID-19 and Transportation: Understanding the exemption and keeping your fleet in compliance webinar from J. J. Keller & Associates addressed many of the common questions fleets have been asking about hours-of-service exemptions, what is an essential business, overall regulatory compliance. Included is information mentioned above, as well as information on the difference between FMCSA’s guidance and Centers for Disease Control and Prevention’s guidance on essential services, how to obtain emergency for-hire authority and COVID-19’s impact on IFTA and IRP programs.

The webinar, which takes about an hour, is available on-demand here.