November 1, 2021 – Safety & Compliance
FMCSA Directs States to Use DACH Data on CDL Records. The Federal Motor Carrier Safety Administration has published a final rule directing State Driver Licensing Agencies to access and use violation information obtained through the FMCSA’s Drug and Alcohol Clearinghouse to bar drivers from obtaining CDLs. 86 Fed. Reg. 55718 (Oct. 7, 2021).
Specifically, the final rule provides that State Driver Licensing Agencies must not issue, renew, upgrade, or transfer a commercial driver’s license or commercial learner’s permit for any individual prohibited under FMCSA’s regulations from performing safety-sensitive functions, including driving a commercial motor vehicle, due to one or more drug and alcohol program violations.
Further, SDLAs must remove the CLP or CDL privilege from the driver’s license of an individual subject to the CMV driving prohibition, which would result in a downgrade of the license until the driver complies with return-to-duty requirements. This rule also requires States receiving Motor Carrier Safety Assistance Program grant funds to adopt a compatible CMV driving prohibition applicable to CLP and CDL holders who violate FMCSA’s drug and alcohol program requirements and makes clarifying and conforming changes to current regulations.
The rule goes into effect November 8, 2021, but SDLAs have three years, until November 18, 2024, to come into compliance by adopting these procedures.
OSHA COVID Vaccine Mandate for Large Employers Sent to OMB for Review. The Occupational Safety and Heath Administration’s Emergency Temporary Standard on COVID vaccinations and testing has been sent to the Office of Management and Budget for review before publication. The draft ETS, which has not been made public, is expected to require employers with more than 100 employees to ensure that all employees are vaccinated against COVID-19 or submit a weekly negative COVID test before reporting for work.
Usually, OMB review takes at least 30 days; it could be longer if the proposed rule poses difficult legal or implementation questions.
Because it is an Emergency Temporary Standard, the ETS will not go through notice and comment rulemaking; it will be issued and take effect without requesting public comment. An ETS may typically be in effect only for up to six months, though.
OSHA will probably count all employees per company, not per facility, to reach the 100-employee threshold, although this is not certain. OSHA will also probably give a certain amount of time for employees to obtain the vaccine and will probably require employers to provide paid time off for employees to get vaccine and recover from any ill effects.
We do not know which vaccines will be acceptable or which tests will be acceptable as an alternative. Nor do we know if employers or employees will have to pay for the weekly tests or whether any paid time off will be allowed for the testing.
It is unlikely that the ETS will allow persons with natural antibodies due to having recovered COVID to skip the vaccination or testing requirements, even though studies indicate recovery from COVID provides better antibody protection than a vaccine.
Further, there will likely be several lawsuits field to challenge the ETS as soon as it is released. Suits might come from both conservative State Attorneys General as well as labor unions. It is possible the ETS will be enjoined before it goes into effect, although the validity of the various legal arguments under consideration is open to debate.
New COVID Guidance for Federal Contractors Issued. President Biden signed an Executive Order on September 9 directing all federal agencies to include provisions in any new contracts, solicitations for bids, or contract extensions, to require contractors and subcontractors to comply with COVID-related guidance issued by the Safer Federal Workforce Task Force.
On September 24, the Task Force issued new guidance on workplace safety for federal contractors and subcontractors. The guidance states that all covered contract employees on existing contracts must be fully vaccinated against COVID-19 no later than December 8, 2021. For contracts awarded after that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.
The guidance requires federal contractors and subcontractors with a covered contract to conform to the following workplace safety protocols:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
- Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
CVSA Reports Results of Unannounced Hazmat Inspections. The Commercial Vehicle Safety Alliance reported the results of over 13,000 roadside inspections of vehicles transporting hazardous materials in the United States, Canada and Mexico during the Alliance’s unannounced Hazmat Road Blitz June 21-25.
Over five days, commercial motor vehicle inspectors in Canada, Mexico and the U.S. inspected 13,471 vehicles transporting hazardous materials and identified 2,714 violations. These included:
- 496 shipping papers violations
- 628 non-bulk/small means of containment packaging violations
- 390 bulk packaging/large means of containment placarding violations
- 277 non-bulk/small means of containment labeling violations
- 307 bulk/large means of containment placarding violations
- 167 other safety marks violations
- 288 loading and securement violations
- 50 HM/DG package integrity (leaking) violations
- 63 Transportation of Dangerous Goods Training Certificate violations (Canada only)
DHS to Require COVID Vaccinations for Canadian Truckers to Enter U.S. Beginning in early January 2022, the U.S. Department of Homeland Security will require Canadian truck drivers to be fully vaccinated against COVID-19 before entering the United States.
DHS is now in the process of amending its regulations to allow non-essential travelers, including tourists, who have been fully vaccinated for COVID-19 and have appropriate documentation to enter the United States via land and ferry ports of entry across the U.S. border with Canada. Essential workers, including truck drivers, have been allowed to cross the border into the U.S. without proof of vaccination up to this point.
Requiring proof of vaccination status for Canadian truck drivers is expected to further hamper cross-border trade and hamper supply chains for U.S. companies and customers.