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Commercial Motor Vehicle Driver, DOT, Drivers, Drug and Alcohol, FMCSA

FMCSA Establishes National Drug and Alcohol Testing Clearinghouse for Commercial Drivers

Washington DC – On December 2, the U.S. Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) announced a final rule that establishes a national drug and alcohol clearinghouse for commercial truck and bus drivers.  The clearinghouse database will serve as a central repository containing records of violations of FMCSA’s drug and alcohol testing program by commercial driver’s license (CDL) holders.  The national drug and alcohol clearinghouse Final Rule goes into effect in January 2020, three years after its effective date.

Once the clearinghouse is established, motor carrier employers will be required to query the system for information concerning current or prospective employees who have unresolved violations of the federal drug and alcohol testing regulations that prohibit them from operating a commercial motor vehicle (CMV).  It also requires employers and medical review officers to report drug and alcohol testing program violations.

The final rule requires motor carriers, medical review officers, third-party administrators, and substance abuse professionals to report information about drivers who:

  • Test positive for drugs or alcohol;
  • Refuse drug and alcohol testing; and
  • Undergo the return-to-duty drug and alcohol rehabilitation process.

Additionally, motor carriers will be required to annually search the clearinghouse for current employees, and during the pre-employment process for prospective employees, to determine whether a driver violated drug or alcohol testing requirements with a different employer that would prohibit them from operating a CMV. To view the drug and alcohol clearinghouse Final Rule, click this link.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

OSHA, Safety, Training, Workers Compensation

How to lower Workers’ Compensation costs for Florida Contractors (Part 1)

Attention Florida Construction Contractors – here are 18 proven steps to get control of your workers’ compensation costs, meet compliance obligations and improve employee relations. (Part 1 of 3)

  1. Create a good hiring process – Avoid hiring a problem employee by developing a thorough and effective hiring process. Hire the best available talent by looking at skills, past work experience, reasons for leaving – but also a “can do” attitude.  Ask for examples of when they showed initiative and teamwork in the past.  For instance: How will your boss rate you when we call him? What kind of work don’t you like to do? What makes a safe workplace? How do you know you do a good job? What are you most proud of at work?  Also important is checking references for applicants – call previous employers and see what can be confirmed.  Lastly, call your local Florida Career Source Center, http://www.floridajobs.org/onestop/onestopdir/, and have the Business Services team pre-interview and qualify applicants for your company.   It’s a FREE resource.
  2. Use a written 90 day probationary period – Have each newly hired employee sign the following language, your company will not pay unemployment if the employee is terminated for unsatisfactory performance within the first 90 days.  Use the following language: “The employee’s first ninety (90) days of employment with the Company are considered an introductory period. This introductory period will be a time for getting to know fellow employees, managers and the tasks involved in the position, as well as becoming familiar with the Company’s products and services. The supervisor or manager will work closely with each employee to help them understand the needs and processes of their job.  This introductory period is a try-out time for the employee and the Company. During this introductory period, the Company will evaluate employees’ suitability for employment, and employees can evaluate the Company as well. At any time during this first ninety (90) days, employees may resign. If, during this period, employee work habits, attitude, attendance, performance or other relevant factors do not measure up to our standards, the Company may release employment.  Please understand that completion of the introductory period does not alter the at-will employment relationship.  If I am separated from the company during this period, the company may not be charged for unemployment benefits as this is an introductory period recognized under the Florida statutes. “ Florida Statutes  443.131(3)(a)(2)
  1. Use up-to-date New Hire forms – Contractors should use a multi-page Employment Application. It should ask for important information about past work, reasons for leaving jobs, ability to perform job duties, licenses, other skills, criminal convictions and reliable transportation.  Other required new hire forms include: new hire checklist, I9, W4 and the Florida Healthcare Exchange info.  To verify medical capability, a contractor may use a Post Offer Medical Questionnaire or pay for a physical examination for each new hire. A sample form is available to review at  http://www.consultstu.com/humanresourcestopics/samplehrforms.html    Pre-employment physicals can be performed by walk in clinics or occupational medical centers – to test for physical agility and back/lifting evaluation.  Just make sure you test all candidates for a position type, not just some candidates.
  2. Written Safety program – Contractors are eligible for a 2% reduction in workers’ compensation premiums for a written safety program. FL Stat 440.1025 describes the required safety program sections. Download the Employer Certification form at  http://www.myfloridacfo.com/Division/WC/pdf/safety_credit_app.pdf and submit to your workers compensation carrier.  A Safety Plan template can be created using the FREE resources from the University of South Florida, Safety Consultation Services.  To start, click the following link and create a safety program at https://www.safetyconsultationservices.com/Safetywriter/  or contact Consultstu.
  3. Get OSHA Safety programs – Use OSHA’s Compliance Assistance Quick Start to determine required safety programs https://www.osha.gov/dcsp/compliance_assistance/quickstarts/construction/index_construction.html The site has English & Spanish compliance assistance resources.  Typical written plans may include: First Aid, Hazard Communication, Lockout, Personal Protective Equipment, Fire Prevention, Electrical Safety, Confined Space and Respiratory Protection.  Put these policies in a binder and maintain at each jobsite or with each superintendent/foreman.  Refer to the programs during employee safety training.
  4. Document Employee Safety Training – A safe workplace culture includes documented employee safety training. Use a written safety training attendance sheet to document all safety training. Include the following language at the bottom of your form: “The above employees participated in the described safety training, had an opportunity to ask questions and are required to follow company’s safety rules and regulations, including the wearing of required safety equipment on the jobsite.”  Maintain the safety training in your safety binder.

Be watching future blog posts for next six steps for how Florida Construction Contractors can lower workers’ compensation costs.

Consultstu LLC provides affordable HR services to Florida Construction Contractors to achieve compliance, minimize workers’ compensation costs and improve employee satisfaction.  We help companies avoid expensive HR mistakes and improve employee relations. Have a question – call us at 727-350-0370, or email at [email protected].

Drug Free Workplace, Employee Handbook, Employee Misconduct, TPD Benefits, Workers Compensation

Positive drug test and Workers’ Comp: Can TPD benefits be stopped?

Florida employers with a drug free workplace have the right to terminate an employee that tests positive for illegal drugs.  What happens when the employee tests positive for drugs after a post-accident drug test, and the employee is receiving temporary partial disability (TPD) benefits?  The Florida work comp statute states that “misconduct” includes, but is not limited to, the following: (a) conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or (b) carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer. Section 440.15(4)(e) Fla. Stat. (2014) states “if the employee is terminated from post injury employment based on the employee’s misconduct, temporary partial disability benefits are not payable…”

A Florida appeals court gives some excellent guidance to employers on how post accident drug tests can be “misconduct”.  In Bismark Batres v Safelite and Sedgwick CMS, the JCC and Appeals court affirmed that it was proper for the company to stop TPD benefits to an employee fired after testing positive for cocaine.  The employee injured his right shoulder in March 2014, submitted to a post accident drug test and his results were positive.   When misconduct occurs, an employer may terminate an employee and also cease TPD benefits.  Even though the employee had surgery after the drug test (a/k/a misconduct), the medical procedure did not break the causal connection between the misconduct and the loss of entitlement to TPD benefits. The Company did testify that a job would have been made available to the employee within his post surgery  restrictions (if he had not been termed for drug free workplace violation).

What should an employer do to retain the right to fire an employee after a post accident drug test?

  1. Maintain a written drug free workplace policy that follows Florida statutes.
  2. Written workplace conduct rules that prohibit illegal drug use.
  3. Have all employees sign the acknowledgement of the Employee Handbook and/or drug free workplace.
  4.  Follow your drug testing procedures to the letter.
  5. Be consistent on consequences for positive drug tests.
  6. Document safety meetings and discuss drug free workplace rules.

In short, a direct violation of company policy (like a post accident drug test) constitutes misconduct.  It is not necessary  to have repeated violations of explicit policies and several prior warnings to obtain a finding of misconduct.

Consultstu LLC provides fractional HR services to small/mid businesses to achieve compliance, help companies minimize HR costs and improve HR efficiency.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement. Have a question – call us at 727-350-0370, or email at [email protected].

DOT, FMCSA

FMCSA proposes new rules for motor carrier “Safety Fitness Determinations”

On January 15, 2016, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) proposed a new rule to enhance the Agency’s ability to identify non-compliant motor carriers.  The Safety Fitness Determination (SFD) notice of proposed rulemaking updates FMCSA’s safety fitness rating methodology by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports, to determine a motor carrier’s overall safety fitness on a monthly basis.  It replaces the current three-tier federal rating system of “satisfactory–conditional–unsatisfactory” for federally regulated commercial motor carriers (in place since 1982) with a single determination of “unfit,” which would require the carrier to either improve its operations or cease operations.

According to the agency, the new methodology will help the agency focus on carriers with a higher crash risk, by achieving more timely assessments.   Under the proposed system, the FMCSA will be able to assess the safety fitness of approximately 75,000 companies a month (versus 15,000 motor carriers annually today).

The proposed methodology would determine when a carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on:

  1. the motor carrier’s performance in relation to a fixed failure threshold established in the rule for five of the agency’s Behavior Analysis and Safety Improvement Categories (BASICs);
  2. investigation results; or
  3. a combination of on-road safety data and investigation information.

The proposed rule further incorporates rigorous data sufficiency standards and would require that a significant pattern of non-compliance be documented in order for a carrier to fail a BASIC.

When assessing roadside inspection data results, the proposal uses a minimum of 11 inspections with violations in a single BASIC within a 24-month period before a motor carrier could be eligible to be identified as “unfit.” If a carrier’s individual performance meets or exceeds the failure standards in the rule, it would then fail that BASIC.  The failure standard will be fixed by the rule. A carrier’s status in relation to that fixed measure would not be affected by other carriers’ performance.

Failure of a BASIC based on either crash data or compliance with drug and alcohol requirements would only occur following a comprehensive investigation.  FMCSA’s analysis shows that the carriers identified through this on-road safety data have crash rates of almost four times the national average.

Read the proposed rule here.   According to news reports, a coalition of groups — the National Association of Small Trucking Companies, Western States Trucking Association, the ASECTT group and others are actively pushing back against the FMCSA proposed rule. Stay tuned.

Employee Handbook, Employee Policies, NLRB, Section 7 Rights

Policy banning workplace recordings unlawful

Here we go again!  The National Labor Relations Board (NLRB) (the activist agency that declared many common employer policies meant to establish professionalism, workplace cooperation and congeniality to be unlawful) has done it again.  In late December 2015, the NLRB ruled that Whole Foods Market policy prohibiting the recording of conversations in the workplace violated Section 8(a)(1) of the NLRA.  The employee policies were part of general guidelines (from HR) that applied to all the employees and applied to any electronic device that may be used to record images or conversations.  It covered all areas of the store, as well as the parking lot.

Two policies were found unlawful.  The first policy prohibited the recording of company meetings without prior approval from the store management.  The second policy prohibited all recording in the workplace without similar approval.  The company’s stated purpose for the rules were to encourage open conversation, and to eliminate the chilling effect that happens when someone is concerned that conversations are being secretly recorded.

As in similar cases, the Board concluded that the rules would reasonably be interpreted by employees to prohibit them from engaging in Section 7 activity (such as recording picketing, documenting hazardous conditions, publicizing issues related to terms and conditions of employment).  Net result – blanket no recording rules in an Employee Handbook  will be likely be declared illegal, unless there is a better employer justification.  Employers need to create narrowly crafted policies designed to protect valid business justifications (such as trade secrets, confidential info, HIPAA concerns, wiretapping protections).

In Florida, two party consent is needed for recording a conversation; however, in New York and other states, a person can record a conversation as long as the individual doing the recording is a party to the conversation.  Whole Foods has appealed the decision, so stay tuned.  Kathleen M. McKenna, from Proskauer Rose LLP is the attorney for Whole Foods.

Consultstu LLC provides fractional HR services to small/mid businesses, and helps companies minimize HR costs and improve HR efficiency.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement. Have a question – call us at 727-350-0370, or email at [email protected].

Employee Misconduct, Investigations, Workplace Monitoring

Can HR use hidden surveillance on employees to catch misconduct?

Attention business owners and HR pros – if you are trying to gather evidence of employee misconduct be sure you know the wiretapping laws.  On January 22, 2016 a Massachusetts district court found probable cause that 3 human resources employees, including the HR Manager, committed unlawful wiretapping of an employee.    According to a report in the Worchester Telegraph, 2 Wyman Gordon HR employees for illegal wiretapping, after they set up a wireless camera in the employee’s working area to catch him sleeping on the job.  Wyman-Gordon is a worldwide supplier to the aerospace and industrial gas turbine industries.

What happened? The employee, a plumber, was allegedly sleeping many hours on his late night shift.  So, HR ordered a camera to catch the employee sleeping.  The camera captured video and audio.  The police were contacted because the employee (who discovered the wireless camera in his work area) took the camera without company permission.  The plumber employee was fired as a result of the video/audio recording.  A lawyer for the fired employee contacted the police department and alleged that his client was the subject of an illegal wiretap, and turned over the wireless camera and a compact disk containing video files he discovered on the camera.  Police experts examined the camera and found the camera was equipped with a recording device, and the microphone was not able to be rendered inoperable.

What does HR need to know about wiretapping? Under federal wiretapping laws, it is illegal to listen to or record conversations without the consent of the parties. Under the Electronic Communications Privacy Act (ECPA), 18 U.S.C.A. § 2510, there is a business exception that gives some latitude for employers to monitor employees in the workplace.  Also, if consent is obtained, the communication lawfully may be intercepted as long as there is a legal purpose.  Generally, employers can use video recording devices in any work location and do not need to disclose the existence of the cameras to employees.  However, it is advisable to post notice to employees that areas are subject to video monitoring.  Appropriate areas for monitoring include places where employees do not have a “reasonable expectation of privacy.”  Common work areas are fine, but employees have privacy protections when it comes to surveillance in bathrooms and locker rooms. Without consent, avoid audio tapping employees.

In addition, Florida wiretapping law is a “two party consent” law, and under FL Stat. 934, it is a crime (third degree felony) to intercept or record an oral or electronic communication in Florida unless all parties to the communication consent.  A recent headline: Florida Developer accused of wiretapping.  This is a complicated area, so make sure you understand the current limitations of workplace monitoring before you audio record an employee who is suspected of misconduct, without consent.  In the Wyman Gordon case, the HR department had good reason to start an investigation of the employee, but when they set up the motion-activated audio and video camera to record the employee, they put themselves at risk for local and federal law violations.

OSHA, Record Keeping, Safety

What injury data goes on the OSHA 300 Log?

On February 1st, employers covered by the Occupational Safety and Health Administration (OSHA) recordkeeping rules are required to summarize 2015 year injury data on the OSHA 300A form and post it for employees to see.  The OSHA 300 Log of work-related injuries and illnesses contains the listing of each reportable employee injury in the preceding year. The OSHA 300A Summary is posted between February 1st and April 30th each year, even if no incidents occurred in the preceding calendar year.  A company executive is required to certify the accuracy of the OSHA 300A summary data, and it must be posted in a conspicuous location where notices to employees are customarily posted (i.e. bulletin board, or near the time clock, etc…).

What employers are covered? All employers who have more than ten employees are covered by this requirement unless they qualify as part of an exempt low-risk industry.   Exempt industries (more than 10 employees) are not required to complete the OSHA 300 Log, or post the OSHA 300A summary.

What is recordable on the OSHA 300 Log? Covered employers must record all work-related injuries and illnesses that result in (1) days away from work, restricted work or transfer to another job; (2) loss of consciousness; or (3) medical treatment beyond first aid.

What is work relatedness? Work-related injuries, illnesses and fatalities are those in which an event or exposure in the work environment either caused or contributed to the condition. In addition, if an event or exposure in the work environment significantly aggravated a pre-existing injury or illness, this is also considered work-related.

What is first aid treatment (not recordable)? Non-prescription (OTC) medication; immunizations; cleaning, flushing or soaking wounds on the surface of the skin;  wound coverings such as bandages, Band-Aids, gauze pads;  hot or cold therapy; elastic bandages, wraps, non-rigid back belts, etc. ; temporary immobilization devices while transporting an accident victim; drilling of a fingernail or toenail to relieve pressure; eye patches; removing foreign bodies from the eye using only irrigation or a cotton swab; removing splinters or foreign material from areas other than the eye by simple means; massages; and drinking fluids for relief of heat stress.

Question: An employee was injured and received first aid by a physician at a local hospital and was given a prescription for a pain killer “to be filled if necessary”. Is this recordable?

Answer: Yes. Once a prescription is written, this is a recordable injury, even if the it was “fill as needed” and not filled.

Consultstu LLC provides fractional HR services to small/mid businesses, and help clients ensure compliance, control costs and improve HR efficiency.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement. Have a question – call us at 727-350-0370, or email at [email protected].

Commercial Motor Vehicle Driver, DOT, HR Compliance, Medical Exams

CMV Drivers and the Medical Examiner National Registry

Carriers and CMV drivers should be knowledgeable about the creation of the National Registry of Certified Medical Examiners (National Registry), a new Federal Motor Carrier Safety Administration (FMCSA) program.  All commercial drivers whose current medical certificate expires on or after May 21, 2014, at expiration of that certificate must be examined by a medical professional listed on the National Registry of Certified Medical Examiners.  Only medical examiners that have completed training and successfully passed a test on FMCSA’s physical qualification standards will be listed on the National Registry.

Why the change?  The new rule was created in 2014 to enhance CMV driver health and reduce highway crashes.  Information from NTSB crash investigations indicated that improper medical certification of CMV drivers with serious disqualifying medical conditions has directly contributed to fatal and injury crashes.  It is meant to ensure that medical examiners know the FMCSA rules for drivers.

Compliance tip: When reviewing your DOT compliance responsibilities, do not overlook the requirement to verify that all driver physical exams are performed by a Medical Examiner who is certified and listed on the National Registry.

How do you verify? Before scheduling the next physical exam, make sure you can see your Medical Examiner’s name on the National Registry website. If you are unable to find your Medical Examiner, he or she is not certified and you should select another practitioner.

Documenting Compliance: There is no specific direction on how to document compliance with this requirement – but companies and drivers should maintain evidence of compliance.  Human Resources professionals that send company drivers to get DOT physicals should create a standard company form to prove that HR checked the National Registry, and the medical examiner was listed.  Here is a sample form.

Consultstu LLC provides fractional HR services to small/mid businesses, and help clients ensure compliance, control costs and improve HR efficiency.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement. Have a question – call us at 727-350-0370, or email at [email protected].

HR Compliance, I9 Form, Personnel File

How can I correct mistakes on I9s?

Here is a common situation.  You were recently hired to handle human resources and during your review of employee files and forms, you discover errors on the existing I9 forms.  There are all types of errors, such as incomplete I9s, unsigned I9s, incorrect documents used in the employers section, etc…  What do you do?  Complete all new I9s?  Ignore it?

Well, you are in luck because in late December 2015, the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) announced the issuance of “Joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” You can download the 6-page guidance document from either the ICE website here or from the Office of Special Counsel.  Here are some important tips from the enforcement agency:

  1. To avoid discrimination claims, review all I9s and not just a few.
  2. When deficiency is identified, the employee should be notified in private – and provide them with a copy of the deficient I9.
  3. An employer may not correct errors or omissions in Section 1. If an employer discovers an error or omission in Section 1 of an employee’s Form I-9, the employer should ask the employee to correct the error.  Draw a line through the incorrect information , enter the correct information and then initial and date the correction (or added information).
  4. If the employee is no longer working for the employer, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explaining why corrections could not be made (e.g., because the employee no longer works for the employer).
  5. Employers can correct information in Section 2 (or 3) using the same steps identified in number 3 above.
  6. If an I9 is missing, or parts were left completely blank, the employer should complete a new I9 form (whatever sections need to be done), then the Employers staples the new one to the old one, together with a signed memo explaining the corrective action taken.

Read more guidance by downloading the above guidance from the Department of Justice.

Consultstu LLC provides fractional HR services to small/mid businesses, and helps companies with compliance duties, minimize HR costs and improve HR delivery.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement.  Have a question – call us at 727-350-0370, or email at [email protected]

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