By R. Bruce Wright, CPCU
I have recently had occasion to revisit the topic of CDL requirements, since they apply to nearly all systems in our program. Most systems require all, or nearly all, of their field workers to maintain a CDL. The rules require all employers of CDL drivers to meet a range of obligations, covering record keeping, data collection, periodic reviews, random substance testing, and training. While the administration of CDL regulatory issues is often considered “just a compliance issue” rather than a safety/liability issue, in reality, compliance efforts can affect liability exposures.
Here’s a scenario to consider. Let’s say a driver has an accident, and it later turns out that the employer was not in compliance with pertinent CDL requirements. This fact may provide a claimant (or the claimant’s legal team) with some ammunition that can be used in court, ammunition that can make it harder for the driver’s employer to protect itself from claims, regardless of the facts of the actual incident. For instance, what if a driver was not at fault in an accident, but turns out to be legally impaired by drugs or alcohol when tested? It may still be possible to defend this case, as long as the impairment is not related to the cause of the accident, since in our example here the other driver was at fault. But, what if the employer has been audited by the DOT in the past and found out of compliance with respect to its driver testing program, reasonable suspicion training, annual MVR reviews, or bi-annual medical exams? If that fact is discovered by the claimant’s legal team, it could well make the case harder to defend. In fact, this is an example of how a compliance issue can morph into a liability issue. You would still hope to defend the case, but it certainly is going to be more difficult.
After I had this insight I began to dig into the issue of CDL rule compliance over my next several visits to systems. It quickly became apparent that while many systems are in fine shape from a compliance standpoint, others are not fully compliant, and many of those lack confidence that they fully understand the rules. So, this article will attempt to concisely summarize some of those rules, as well as provide links to the government Web sites where more details can be found.
Here are some excerpts from the actual requirements, with pertinent comments appended. They come straight from the FMCSA Web site which can be accessed by clicking HERE.
§391.51 General requirements for driver qualification files.
(a) Each motor carrier shall maintain a driver qualification file for each driver it employs. A driver's qualification file may be combined with his/her personnel file. [Ed.- We advise you to keep a separate file so that certain information in the main “HR” file, not pertinent to driving issues and to which a DOT inspector is not legally entitled to have access is not co-mingled with CDL required records.]
(b) The qualification file for a driver must include:
(b)(1) The driver's application for employment completed in accordance with §391.21
(b)(2) A written record with respect to each past employer who was contacted and a copy of the response by each State agency, pursuant to §391.23 involving investigation and inquiries;
(b)(3) The certificate of driver's road test issued to the driver pursuant to §391.31(e), or a copy of the license or certificate which the motor carrier accepted as equivalent to the driver's road test pursuant to §391.33;
(b)(4) The response of each State agency to the annual driver record inquiry required by §391.25(a);
(b)(5) A note relating to the annual review of the driver's driving record as required by §391.25(c)(2); [Ed.- This is one of the commonly overlooked issues. In addition to a copy of the state MVR report, the cited section requires that the file contain “A note, including the name of the person who performed the review of the driving record required by paragraph (b) of this section and the date of such review.”]
(b)(6) A list or certificate relating to violations of motor vehicle laws and ordinances required by §391.27; [Ed.- This too is often overlooked. The cited section, §391.27 Record of violations, requires that every year the employer require each CDL driver to individually provide a list of all violations (other than parking tickets) which the driver has been convicted of during the preceding 12 months, or to certify (sign and date) that he has not had any such convictions.]
(b)(7) The medical examiner's certificate of his/her physical qualification to drive a commercial motor vehicle as required by §391.43(f) or a legible photographic copy of the certificate; and
(b)(8) A letter from the Field Administrator, Division Administrator, or State Director granting a waiver of a physical disqualification, if a waiver was issued under §391.49.
(c) Except as provided in paragraph (d) of this section, each driver's qualification file shall be retained for as long as a driver is employed by that motor carrier and for three years thereafter. [Ed.- Some file contents can be disposed of, see rule §391.51 (d) for details.]
That’s quite a list of items for the file, long enough to challenge anyone’s memory. That’s why we typically suggest that the person responsible for keeping the files make up a list of the required items and print or attach it to the inside cover of each file to serve as an annual checklist.
There are additional requirements as you know. Section 382 covers requirements related to the misuse of alcohol or use of controlled substances. Note the phrase “average number of driver positions” in the requirements setting the testing percentages below.
§382.305 Random testing.
(b)(1) Except as provided in paragraphs (c) through (e) of this section, the minimum annual percentage rate for random alcohol testing shall be 10 percent of the average number of driver positions.
(b)(2) Except as provided in paragraphs (f) through (h) of this section, the minimum annual percentage rate for random controlled substances testing shall be 50 percent of the average number of driver positions.
So, in order to ensure your compliance you need to have a running average of the number of “driver positions,” or positions requiring a CDL, and use that as your basis rather than actual head count of CDL holders. Of course, if you have more CDL holders than actual driver positions, it would be advisable to use the higher number to set the target, to avoid any confusion.
Similarly, the actual language for “reasonable suspicion” training says:
§382.603 Training for supervisors.
Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under §382.307. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. Recurrent training for supervisory personnel is not required.
So, every supervisor of a CDL "driver position" needs to receive training on reasonable suspicion for both drug and alcohol use, 60 minutes of each type of training. The good news is that training is a one-time event and no specific source is designated. You can choose from a variety of resources, including your Statewide or other local association, on-line resources, or other specialty vendors, perhaps even your testing partner. If you cannot find what you need, contact Synebar and we should be able to help you.
Other questions about the drug and alcohol rules may be answered in the FMSCA overview page on the topic, which can be seen if you click HERE.
This is not an exhaustive review of the CDL rules, since covering everything in detail would result in an article much longer than most readers would care to plow through. Instead, it covers a few of the areas that are known to offer compliance challenges. I urge anyone with specific areas of concern that are not addressed here to consult the Web links provided in the article to check the pertinent details. Synebar is also always available too, to provide any needed assistance.