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How to Carriers Ensure Stay Violation-Free – Part II

Welcome to Part II of our important series on violations. In Part I, we left off discussing Part 382 of the regulations. This is a big category – and has accounted for over 20 percent of acute violations so far this year.

The key takeaway is this: if you’re a motor carrier that operates trucks with a GVWR/GVCR of 26,001 pounds or more, then the drivers of those trucks must be enrolled in a DOT-compliant drug and alcohol testing program. This program must include a pre-employment drug test for every new driver and enrollment in a random drug testing program, as well as post-accident, reasonable suspicion, return to duty and follow up tests, as needed.

A key part of any DOT-compliant drug and alcohol testing program is the enrollment of all drivers in a scientifically random selection pool that meets the selection requirements set by the FMCSA. To be a true random selection program, every driver needs to have the same chances of being pulled for a drug or alcohol test every time there’s a selection for your company.

In 2019, this has been the third most common acute violation, accounting for over 12% of all violations. As you might expect, drug and alcohol violations typically result in a higher fine amount. For this violation, the average fine has been over $9,000 this year.

Other Serious Violations

An even more serious violation (according to FMCSA data), is using a driver without having a negative pre-employment result on file. This was the second most common critical violation for 2019 so far, accounting for almost 10%of all violations.

According to regulation 382.301(a), employers are required to send all new drivers for a pre-employment drug test and wait for the negative result before allowing the driver on the road. The one big exemption here, is if the driver was enrolled in a DOT-compliant testing program within the previous 30 days and was tested for drug use within the past six months.

Some other common violations related to the drug and alcohol testing requirements resulted from:

  • Using a driver who tested positive for a drug (382.215)
  • Using a driver who refused to take a drug or alcohol test (382.211)
  • Failing to do random drug and/or alcohol tests at the applicable annual rate (382.305(b))

The best way to prevent a regulation Part 382 violation is to ensure you have all the key pieces of a drug and alcohol testing program in place. To stay compliant, all safety sensitive employees must take a pre-employment drug test prior to beginning work with your company and be enrolled in a scientifically random drug and alcohol testing program that tests at the rate set by the FMCSA. You must also provide post-accident, reasonable suspicion, return-to-duty and follow-up testing as required.

Rather than managing all of these requirements, as well as the administrative functions, many carriers choose to partner with a DOT-compliant drug and alcohol testing provider that understands the regulations and will provide you and your drivers with a comprehensive program that will keep you compliant. Provided you work with a reputable provider, this partner will manage all aspects of your program, from policy creation to the random selection process, to help keep our roadways safe and ensure you’re not at risk for a drug and alcohol testing violation.

On January 6, 2020, motor carriers will be required to report all nonnegative test results to the Drug & Alcohol Clearinghouse – as well as query the Clearinghouse both before and during a driver’s employment. To ensure you stay compliant, it’s important that you partner with a provider that understands this new regulation, as well as the privacy laws that impact it. Are you prepared to be clearinghouse compliant?

Examining Part 391

Part 391 of the Federal Motor Carrier Safety Regulations deals with the qualification of drivers to ensure that every CDL driver who is operating on public roadways has the required training, credentials and safety record. To comply with the requirements of this section, employers are required to both gather a variety of documents from the driver and run a series of background screens. All this information is then organized into two folders that must be maintained for the duration of the driver’s employment, as well as three years thereafter.

Inquiries into Employment Record Not Kept in Driver Qualification File (391.51(b)(2)) is the third most common critical violation for 2019 so far, with employers either not completing the prior employer inquiry, or not filing the documentation in the correct place. To comply with regulation Part 391, all inquiries into a driver’s previous employment must be well documented and filed as part of their Safety Performance History. Because of the sensitive nature of the information contained within this file, it must be kept in a secure location that is only accessible to those who are directly involved in the hiring process for your company.

Failing to Maintain a Driver Qualification File on Each Driver (391.51(a)) is another big one. The driver qualification file isn’t simply a pre-hire process, it’s a file that must be updated throughout the duration of a driver’s employment. Confusion over that point – as well as the lack of an organizational system to alert carriers when an update is required – means that many carriers don’t have complete driver files for every driver they employ.

Each file must contain a variety of important documents, including the driver’s DOT application, motor vehicle report (updated annually), CDL, medical card and prior employer verifications. Every time a document is set to expire, it must be updated within the file to ensure it stays compliant.

Another big hit in this section is a lack of a medical certificate in your driver qualification file. Given how important physical health is to both the safety of your drivers and the roadways, regulation Part 391 requires that a legible copy of the truck driver’s medical certificate be kept in the driver qualification file. This document must be kept current and replaced with the driver’s updated document each time it’s renewed.

Related to this violation, is the need for drivers to have a copy of their medical certificate on them each time they drive. Although not specific to audits, this has been one of the top roadside inspection violations this year.

Finally, we get to using an unqualified truck driver. The general qualifications of drivers in Part 391.11 outlines the basic requirements drivers must meet in order to legally operate a commercial motor vehicle. These include being at least 21 years old, being able to speak and write English and having the training required to safely operate a CMV.

Truck drivers must also meet the minimum physical requirements, which will be vetted out by a DOT medical examiner when they go for their medical card. Although these violations are quite common, they can be easily avoided through the driver file creation process. The DOT compliant application, and the requirement to get a copy of the driver’s medical card, will help you determine whether a driver meets DOT qualification requirements.

The Key is Prevention

The key to staying compliant with all the requirements of regulation Part 391 is a good organizational system – or a partner that can manage the requirements on your behalf. If you’re opting to manage the files yourself, make sure you have a checklist of all the required documents so that nothing slips through the cracks during the pre-hire process. Then, have an alert system in place so that you’re reminded well in advance of CDL and medical card expiration dates, for example.

An easier route is to utilize an electronic driver file management system which will help create and manage files for you. For best results, make sure you use a system that will provide instant alerts and notifications when a driver file is incomplete, or a document needs to be updated. This will help you stay on top of these important tasks without it consuming too much of your time.

As a motor carrier, safety is a top priority for your company. And yet, as the data shows, even a commitment to operating a safe fleet doesn’t mean that complying with all the FMCSA regulations is an easy task. As you’ll recall from the beginning of Part I of this series, only six percent of carriers have passed an audit without a violation in 2019 so far. The rest have been dinged for at least one issue – many of which we’ve outlined here.

To have the best chance of ending up in that six percent, we recommend working with a compliance partner that has the regulatory expertise, technology and customer support to help your business thrive. Find someone who has an electronic compliance portal to allow carriers to manage their truck driver files and drug and alcohol testing requirements online, while still providing them with the one-on-one compliance support needed when questions arise.

In fact, carriers who use portals such as these don’t have to worry about any of the violations described in this blog series – between the back-end support and compliance alerts, transportation companies receive the information they need to keep their company violation-free. Are you doing everything you can? Think about it and thanks for joining us in this blog series!

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