Since March 2020, the Federal Motor Carrier Safety Administration (FMCSA) has provided emergency exemptions and waivers for regulations to support COVID-19 emergency relief efforts.
The FMCSA has provided waivers and exemptions for hours-of-service rules, preemployment drug testing, driving skills tests, and renewals for commercial driver’s licenses (CDLs), commercial learners’ permits (CLPs) and medical certifications.
During this time, employers that helped with national emergency efforts and used these waivers or exemptions for their drivers may not have kept up with the documentation necessary for their drivers’ files. It is important for employers to understand that, if they used any of these exemptions or waivers, it should be documented in their drivers’ files, and any paperwork or license updates should be completed as soon as possible.
Exemptions vs. Waivers
Under FMCSA emergency declarations, various exemptions and waivers can be issued. Each one has its own requirements. In general, an exemption is temporary regulatory relief from one or more of the Federal Motor Carrier Safety Regulations (FMCSRs) given to a person or class of persons who are subject to the regulations, or who intend to engage in an activity that would make them subject to the regulations. An exemption provides the person or class of persons with relief from the regulations for up to two years, but it may be renewed.
Exemptions under the FMSCA emergency declaration in response to COVID-19 apply to drivers who provided direct assistance during the national emergency. Drivers providing direct assistance are exempt from the FMCSRs Parts 390-399. Direct assistance refers to transportation and relief services provided by a driver to restore essential services or supplies related to COVID-19.
A waiver is temporary regulatory relief from one or more of the FMCSRs given to a person who is subject to the regulations or who intends to engage in an activity that would be subject to the regulations. A waiver can provide relief for up to three months, but it can continue to be extended.
The waivers under the emergency declaration by the FMCSA during COVID-19 provide relief from specific regulations or provide states with the option to permit waivers for their drivers, both of which are stated in the waiver.
Regulations Affected by Exemptions or Waivers
Parts 390-399 of the FMCSRs are the regulations that are often exempted or waived. Among these regulations are rules relating to hours of service, vehicle maintenance and inspections, and general driver qualifications. Unless otherwise noted, the following regulations are not exempted by emergency declarations:
- Controlled substance and alcohol use and testing
- CDL requirements
- Minimum levels of financial responsibility
- Hazardous materials
The FMCSA will send out a notice for exemptions or waivers to inform the public of the details concerning the exemption or waiver, what type of relief is provided and what regulations still must be followed by drivers.
Exemption Documentation
Motor carriers who used or continue to use the exemptions should document that they are using them. One of the regulations affected by the COVID-19 exemptions is the driver qualification file requirements. Documentation for driver qualification files, such as new hire documentation or documents that need regular updating, likely has not been completed by employers.
This documentation can include, but is not limited to:
- New hire driver applications
- Initial and yearly motor vehicle record (MVR) checks
- Road testing documents
- Requests for safety performance history
- Medical examiner certificates
All of these documents are required for new hires, and certain documents need to be updated annually. MVRs are updated annually, and medical examiner certificates must be updated every two years (unless noted otherwise by the physician).
Employers should review their drivers’ files to determine which documents are missing for drivers who were providing direct assistance during the emergency declaration. Once the missing documents are determined, the employer should update the files with the required forms and note the date the files were brought up to compliance. The forms should also explain that the reason for the delay was because the driver used the emergency declaration exemptions. The employer should also provide evidence to prove the driver qualified for the exemption in the file.
Waiver Documentation
Some waivers that have been issued by the FMCSA have included stipulations that drivers must meet for the waivers to apply, while other waivers have not included stipulations. Some examples of waivers with stipulations are for renewals of CDLs or CLPs for drivers whose licenses expired after a certain date. States are permitted, but not required, to extend the validity of CDLs or CLPs due for renewals on or after March 1, 2020. The FMCSA determined it was best to grant the waivers, as many CDL and CLP drivers were unable to renew their licenses or medical certifications due to state licensing agencies reducing their hours of operation or closing their offices.
If a waiver with stipulations for its use was implemented, the employer should document those stipulations in the driver’s file. The recordkeeping must show that the driver qualified for the waiver. For example, if a driver did not renew their CDL, but the state permitted it and the driver was within the parameters of the waiver to do so, then the employer should document that in the driver’s file. Drivers should have their licenses renewed and update any documentation required by the FMCSRs that has been waived. If a driver was able to at any point update any information necessary, they should have done so regardless of the waiver.
Employers should document all pertinent information in their drivers’ files. All conversations with doctors or facilities that provide the services the driver was unable to obtain should be documented to show good faith efforts made by the driver and employer.
Reason for Documenting
Providing as much information for using the waiver or exemption as possible is a best practice for a motor carrier. This information will be of significant use when a Department of Transportation (DOT) audit occurs. By providing this information in drivers’ files, the DOT auditor will understand the reason for the exemption or waiver use and see that the employer made a good faith effort in trying to stay compliant.
Employers must explain the specific waiver the driver used and show how the driver qualified to use that waiver. This information should stay in drivers’ files for as long as the documentation is required to be stored.
Employers should refer to the FMCSA regulations for requirements on retention for specific documents. It is important for employers to be proactive when it comes to FMCSA documentation compliance. If employers are not keeping accurate and complete records, this could lead to significant issues during a DOT audit. By documenting now, employers will be prepared when a DOT audit occurs.
This Risk Insights is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice. © 2021 Zywave, Inc. All rights reserved.