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Federal Waiver of CDL Medical Renewal

Federal Motor Carrier Safety Administration (FMCSA) has issued a waiver of renewal for commercial drivers medical exams for those whose certification expires after March 1, 2020 if that medical certification was for 90 days or longer. These drivers may be allowed to operate through June 30, 2020 without need for a new examination. The waiver allows each state flexibility in a variety of other areas of driver certification. This promotes the public welfare by allowing movement of necessary goods and avoiding close contact of medical personnel and drivers as is necessary for an appropriate medical evaluation. The official ruling is linked and summarized below.

https://www.fmcsa.dot.gov/emergency/fmcsa-cdl-waiver-32420
FMCSA’s Determination and Regulatory Provisions Waived Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, limited in scope and circumstances, that is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver until June 30, 2020. To respond to this unique event and to continue the ability of intrastate and interstate CDL and CLP holders and interstate non-CDL drivers to transport goods in response to the COVID-19 emergency, this waiver:

  • Extends until June 30, 2020 the maximum period of CDL validity by waiving 49 CFR 383.73(b)(9) and 383.73(d)(6) for CDLs due for renewal on or after March 1, 2020. 
  • Extends until June 30, 2020 the maximum period of CLP validity by waiving 49 CFR 383.73(a)(2)(iii) and 383.25(c) for CLPs that are due for renewal on or after March 1, 2020, without requiring the CLP holders to retake the general and endorsement knowledge tests.
  • Waives the requirement under 49 CFR 383.25(e) that CLP holders wait 14 days to take the CDL skills test.
  • Waives the requirement under 49 CFR 391.45 that CDL holders, CLP holders, and non-CDL drivers have a medical examination and certification, provided that they have proof of a valid medical certification that was issued for a period of 90 days or longer and that expired on or after March 1, 2020. e.  
  • Waives the requirement under 49 CFR 383.71(h)(3) that, in order to maintain the medical certification status of “certified,” CDL or CLP holders provide the State Driver Licensing Agency with an original or copy of a subsequently issued medical examiner’s certificate, provided that they have proof of a valid medical certification that expired on or after March 1, 2020.
  • Waives the requirement under 49 CFR 383.73(o)(2) that the State Driver Licensing Agency change the CDL or CLP holder’s medical certification status to “not certified” upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification that expired on or after March 1, 2020.
  • Waives the requirements under 49 CFR 383.73(o)(4) that the State Driver Licensing Agency initiate a CDL or CLP downgrade upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification or medical variance that expired on or after March 1, 2020.
  • In accordance with 49 CFR 383.23(a)(1) and 391.41(a)(1)(i), FMCSA continues to recognize the validity of commercial driver’s licenses issued by Canadian Provinces and Territories and Licencias Federales de Conductor issued by the United Mexican States, in accordance with 49 CFR part 383, when such jurisdictions issue a similar notice or declaration extending the validity date of the medical examination and certification and/or validity of the corresponding commercial driver’s license due to interruption to government service resulting from COVID-19. 
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Update on CMR services in response to Covid-19

CMR is here for essential services

In consideration of the essential services provided by commercial drivers, we will be available for limited services as the pandemic situation develops. Changes will be made as needed and appropriate to protect the health of staff, clients and their family members.

Drug testing for commercial drivers

  • Random drug and alcohol testing must continue without exception.
  • Collection hours are 8AM to 11:30 AM and 1PM to 3:30 PM, Monday -Friday
  • DOT Pre-employment, follow-up and post-accident drug testing will be provided to our random testing clients, during the same hours of operation
  • It is imperative that drivers who are ill with symptoms of colds, flu, or allergies NOT be sent for testing until they recover or can provide documentation of a negative negative test for Covid-19.
  • Drivers who are coughing, sneezing or otherwise visibly ill will be asked to reschedule. Employers must not inform drivers of a need to complete a random drug test if their driver is ill or have been exposed to others who are.
  • Employers/ self-employed drivers who require enrollment or changes in the random testing program are encouraged to do so by telephone and email. Payments are accepted by telephone for cards, or by mail for checks.

Commercial Driver Medical Certification

  • Dr. Watson is not NOT offering examinations for commercial drivers at this time (March 22, 2020). Telemedicine options are being considered.
  • FMCSA has provided relief for employers of commercial drivers engaged in transport of essential supplies, so they may not need to renew their CDL medical certification timely.
  • to information on this emergency regulation.
  • We are exploring options that will allow restoration of this service as soon as we can.

Other Occupational Health Services

  • Dr. Watson will provide examinations for health care workers, including TB tests as feasible, with very limited direct examination.
  • TB screening (for educators) will be offered by telephone to the extent feasible
  • Drug testing collections for diversion programs and other clients will be offered as described above for drivers.

This is a very fluid situation. Adjustments will be made as practical and appropriate

We are mindful of our role in keeping essential services available to the extent it is safe for staff, clients and the public. Please sign up for our mailing list if you haven’t already, so updates such as this are delivered to your email automatically.

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Pre-employment queries of the FMCSA Clearinghouse

Pre-employment procedures require new-hire drivers to register for the FMCSA Drug and Alcohol Clearinghouse

With implementation of the Clearinghouse regulations effective January 6, 2020, employers are required to determine their job candidate has no outstanding violations of DOT/FMCSA drug and alcohol testing rules. Employers have questions about how to meet these requirements. This article describes the procedures needed when hiring new drivers.

Employers must be registered in the Clearinghouse

Before starting any new drivers or other safety sensitive employees, employers must perform a “full query” on that driver to assure there is no disqualifying information in the Clearinghouse database. Employers must register with the Clearinghouse to purchase and conduct queries. They may designate their service agent (e.g. CMR) to perform their queries, although CMR may not purchase the queries on behalf of the employer.

Drivers must be registered to authorize a “full query”

Since a driver must give permission online (through the Clearinghouse) for the full query, the driver must register with the Clearinghouse. This can be accomplished on a smartphone or other device connected to the internet. An email address is necessary. The driver will need to check his/her email to know there is a query in need of permission. Two-factor authentication is required as part of the login.gov setup. Two additional resources, are needed e.g. messaging (SMS) on the phone, and SMS or voice message to an alternate phone. There are other authentication possibilities but they are awkward.

Read the full text of the Clearinghouse rules

There are many brochures, Frequently Asked Questions, role sheets and a recorded “webinar” available on the Clearinghouse website. Some of the most essential information is not well emphasized, so here is a link to the actual text of the regulations governing the Clearinghouse, 49 CFR 382 Subpart G starting with 382.701 . It doesn’t clarify all procedural details, but provides specific requirements.

The registration process involves getting an account with login.gov

At https://clearinghouse.fmcsa.dot.gov , employers and drivers needing a new account will be directed to login.gov to set up a username (email) and password. Then, they are returned to the Clearinghouse to provide basic information. Employers may NOT register the drivers, although many provide assistance. It does NOT appear to be a good idea to give the driver an email address in the employer’s domain, since the registration email cannot be changed in future.

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FMCSA Announces Increased Random Testing for 2020

Federal Motor Carrier Safety Administration (FMCSA) has announced an increase in the rate of random drug testing for Commercial Motor Vehicle (CMV) drivers and other safety-sensitive employees. The minimum rate for 2020 will be 50% of the drivers in the testing pool.

This testing rate varies based on the percentage of positive tests each year. Since the rate of positive rose to 1% in 2019, the rate must be increased. Employers are allowed to test at a higher rate. Alcohol testing rate remains at a minimum of 10%.

The complete announcement can be found here.

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Learning Center opened at FMCSA Clearinghouse

Clearinghouse sign-up help, clarifications, guidance are available at the FMCSA Learning Center.

Links to several of these documents are linked here for your convenience. Please SIGN UP HERE for email notification when articles are posted.

Below are links to explanatory brochures and other documents.

HERE is a very helpful step-by-step guide for employers registering for the Clearinghouse.

This Owner-operator Brochure explains the special arrangements needed for drivers who employ themselves.

  • Drivers who employ themselves (any driver with ownership interest in the company they driver for) MUST designate their Service Agent (C/TPA) to report to the Clearinghouse any violations of drug and alcohol testing requirements.
  • If self-employed drivers also employ other drivers, the employer must report any violations by their drivers – or designate CMR to do so.
  • Owner-drivers may perform annual queries, or have CMR do so.

How CMR will act as your Service Agent – employers should read this CTPA BROCHURE

Information about the Clearinghouse in Spanish:

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FMCSA Clearinghouse Query Plans announced

Employers to Query FMCSA Clearinghouse for Drug and Alcohol rules violations

Federal Motor Carrier Safety Administration (FMCSA) announces more details regarding the Clearinghouse Query process

FMCSA has established that employers must purchase “Query Plans” to perform the queries required under the new Clearinghouse for violations by commercial drivers of rules governing illicit drugs use and alcohol use. Employers must register with the Clearinghouse. The plans will cost $1.25 for each query. Plans come in bundles of one query, tens, hundreds, or thousands, at the same price per query. An unlimited plan is available for very large companies. Employers must purchase the Query Plans, even if they have designated a Service Agent (like CMR) to perform the queries and record any violations. Drivers who employ themselves must designate a Service Agent to act as an employer for this purpose, but must still purchase the FMCSA Query Plans from their employer accounts.

Employers must query the Clearinghouse for drivers status

Employers or their Service Agents must perform a “Limited Query” with a driver’s written permission, on each driver at time of hire, and once each year. If the Limited Query identifies no entries for a given driver, no further action is needed. If the Limited Query discloses there have been entries to the Clearinghouse, the employer must perform an additional “Full Query”. The Driver must be registered with the Clearinghouse to give online permission for the Full Query. Employers will then be able to see what violations have been recorded. They will also see whether any violations have been remediated – i.e. whether a Substance Abuse Professional has indicated completion of any required treatment and education. In addition the Clearinghouse records will indicate if Return to Duty and Follow-up testing has been successfully completed.

Service Agents must be authorized by Employers

Employers must assure that any violations of drug and alcohol regulations will be reported to the Clearinghouse. Self-employed drivers must designate their Service Agent (C/TPA) to perform this function. Employers of drivers other than themselves MAY designate the Service Agent to report on their behalf, and to perform Queries on their drivers. Medical Review Officers (MROs) and Service Agents have reporting requirements in addition to any they may perform on behalf of the employer.

Further information

Additional information is available from the FMCSA Clearinghouse website and in this News and Notes article

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Prepare for Commercial Driver Drug and Alcohol Clearinghouse

Commercial Driver Drug and Alcohol Test Clearinghouse is a database of violations and corrective actions. It is scheduled to begin operations next year. Advance planning is necessary.

Before January 6, 2020 all employers of commercial drivers must be registered to hire new drivers.

Effective January 6, 2020, any motor carrier hiring a new driver must check the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse. Employers must affirm any prospective employee has no violation of drug and alcohol rules. Employers (or their agents) must report any violations to the database.

All self-employed drivers must designate their drug testing service (C/TPA) as the source of their required reporting.

Registration for all “Authorized Users” opens in October, 2019.

Other employers may wish to have their C/TPA screen applicants.

Arrangements should be made promptly to enable a smooth transition.

Commercial drivers must authorize inquiries by prospective employers and for annual rechecks by current employers.

(Updated 8/3/19): Permission can be granted with paper forms for an employer to perform a “Limited Query”. The driver does NOT need to register or create an account to allow Limited Query. If there are entries regarding violations, however, a driver must register and give permission for a “Full Query” that will disclose what violation(s) have been recorded. Any remedial actions will come up on a Full Query. Registered Drivers may also check their status and seek corrections when necessary.

Current paper inquiries continue for three years

Until 2023, when the Clearinghouse database will populated with three years of data, employers are required to get paper authorization from each job candidate and mail a request for information to former employers, as is currently required.

More information from FMCSA:

FMSCA Clearinghouse newsletters sign-up and Frequently Asked Questions

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Updated OSHA Guidance on Post Accident Drug Testing

Last year, OSHA issued guidance regarding Post Incident or Post Accident drug testing which largely discouraged the practice. We have just been provided clarification indicating such testing is allowable, even encouraged:

The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”

Full text of recommendations may be found here:  OSHA Guidance on Post Accident Drug testing, October 2018

It is essential that your policy regarding drug testing be specific and carefully worded to assure you can demonstrate the purpose of post-incident testing is part of such a safety program, and not to discourage reporting of incidents. Contact CMR for consultation on your policy.

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OSHA says most Post-injury drugs testing is unlawful

In a ruling to take effect November 1, 2016, OSHA bans blanket testing after a workplace injury. Company policies which require all workers to be tested when seeking treatment for a work injury are considered “retaliatory” by OSHA, and so are not allowable.

This ruling does not apply to DOT or other government regulated testing.

Post-injury testing WILL be allowed IF “drug use is likely to have contributed to the accident and for which the test can accurately identify impairment.”

Companies with policies requiring post-injury drugs testing should re-evaluate and revise with consideration of this ruling. Consultation services are available through CMR.

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Company policy on substance abuse

Revised 10/31/2018 for clarity and completeness

Workplace Drug Testing must be based on a formal company policy.

Many employees are subject to testing for illicit drugs use and alcohol intoxication as a condition of employment. It is important for employers who require such testing to have in place a written policy defining who will be tested, under what circumstances, by what means, and with what response to various possible test results. This policy should be developed with medical advice and legal input, based on the particular goals of the company.

Policy development is a continuing process.

Your drug testing policy should be developed with medical advice and legal input. It should be based on the particular goals for the company. This is not a policy to be created and then left to rest. Substance abuse and public policy are dynamic, so drugs testing policies must keep pace. There are new drugs of concern over time. Testing methods evolve. Prescription drugs and quasi-legal marijuana are pervasive issues. If an employer is required by federal or other regulations to have drugs testing performed, there may be more or less clearly defined procedures.

The United States Department of Transportation (DOT) and other federal agencies have very specific policies and procedures, which serve as a model for non-mandated testing. These policies generally ignore legally prescribed but nonetheless potentially problematic substance abuse issues in the workplace. Screening for marijuana use is more heavily weighted compared to others, in large part due to the persistence of THC compounds for longer periods of time than other drugs.

Specify every aspect of the drug testing process

It is important to be comprehensive and detailed regarding all issues involved with drug testing. These include trigger events for testing, methods of specimen collection, what drugs are tested, what constitues a positive result, and how results get reported.

Reasons for drug testing and/or alcohol tests

The reasons for testing may include pre-employment, random, post-accident, reasonable suspicion, and return to duty or follow-up testing after a violation or rehabilitation. The extent to which each of these may be useful or whether legally allowed, depends on your goals and legal jurisdiction.

Drug testing methods must be described clearly and completely.

Policies specify the methods of testing. If a specimen of body fluid or hair is to be collected, the policy should specify by whom and by what means such collection should take place.  When there are problems with collection, like a refusal to provide the specimen, or attempts to substitute or sabotage, a process should be in place to respond. For example, suspicious behavior during a urine collection may trigger an observed collection.

Medical Review of Test Results

Results of tests from the laboratory must be interpreted in a medically sound fashion, ideally by a physician, and with no unnecessary compromise of the privacy of tested employees. Federally mandated testing requires a specifically trained and certified physician, a Medical Review Officer (MRO) receive all test results. The MRO contacts the employee to discuss any  results “confirmed positive” by the laboratory, prior to reporting to the employer.  This allows the employee to provide medically legitimate explanations for any positive results. The MRO will advise the employer only if there has been  drugs used illicitly or if there is a safety issue with medication used legally. Only then is the result considered a “verified positive” and reported to the employer.

“On-site” rapid testing is preliminary at best

Many companies utilize “rapid” or “onsite” testing, where a result is obtained immediately and usually by persons with little or no training. If such a test shows a negative result, and if it is correct, hiring might proceed immediately. If the “rapid” test is “not negative”, it must be submitted to the laboratory before personnel decisions are made. Such decisions should be deferred until a laboratory confirms (or contradicts) the positive and a Medical Review Officer verifies there is no medically legitimate alternative explanation for the findings.

What is a positive test result? What are the consequences?

Company policy must specify what constitutes a positive result. Then, it must be clear what consequences will follow a confirmed positive test.

Create or update your company drug and alcohol policy now.

Companies testing for illegal use of drugs and alcohol without a formal policy in place risk ineffective testing and damaging litigation. HR managers and others responsible for such policies may wish to consider periodic consultation with a qualified Medical Review Officer and an attorney, to assure your policy is up to date, legally and medically accurate.