How does the Federal Motor Carrier Safety Administration address the use of a driver by multiple employers?
Answer: Yes, this situation is addressed in several ways throughout the regulations; however, it is confusing. Drivers that work part time, fall into several classifications:
1. Drivers that work for multiple employers on a regular basis.
2. Drivers who are regularly employed by a motor carrier and occasionally drive for another motor carrier.
3. An employee of a non-motor carrier and who occasionally or part time drives.
First let us look at the driver qualification process:
Multiple Employer Drivers
Multiple-employer driver means a driver, who in any period of 7 consecutive days, is employed or used as a driver by more than one motor carrier. This definition applies to a driver who regularly works part time for two or more employers.
If a motor carrier employs a person as a multiple-employer driver (as defined in §390.5 of this subchapter), the motor carrier shall comply with all requirements of this part, except that the motor carrier need not:
- Require the person to furnish an application for employment in accordance with §391.21;
- Make the investigations and inquiries specified in §391.23 with respect to that person;
- Perform the annual driving record inquiry required by §391.25(a);
- (a)(4) Perform the annual review of the person's driving record required by §391.25(b); or
- (a)(5) Require the person to furnish a record of violations or a certificate in accordance with §391.27.
- (b) Before a motor carrier permits a multiple-employer driver to drive a commercial motor vehicle, the motor carrier must obtain his/her name, his/her social security number, and the identification number, type and issuing State of his/her commercial motor vehicle operator's license. The motor carrier must maintain this information for 3 years after employment of the multiple-employer driver ceases.
A driver who is regularly employed by a motor carrier and occasionally works for another motor carrier.
§391.65(a) A motor carrier may employ a driver who is not a regularly employed driver of that motor carrier without complying with the generally applicable driver qualification file requirements in this part, if:
- The driver is regularly employed by another motor carrier; and
- The motor carrier which regularly employs the driver certifies that the driver is fully qualified to drive a commercial motor vehicle in a written statement which—
o Is signed and dated by an officer or authorized employee of the regularly employing carrier;
o Contains the driver's name and signature;
o Certifies that the driver has been regularly employed as defined in §390.5;
o Certifies that the driver is fully qualified to drive a commercial motor vehicle under the rules in Part 391 of the Federal Motor Carrier Safety Regulations;
o States the expiration date of the driver's medical examiner's certificate;
o Specifies an expiration date for the certificate, which shall be not longer that 2 years or, if earlier, the expiration date of the driver's current medical examiner's certificate; and
A motor carrier that obtains a certificate in accordance with paragraph (a)(2) of this section shall:
o Contact the motor carrier which certified the driver's qualifications under this section to verify the validity of the certificate. This contact may be made in person, by telephone, or by letter.
o Retain a copy of that certificate in its files for three years.
A motor carrier which certifies a driver's qualifications under this section shall be responsible for the accuracy of the certificate. The certificate is no longer valid if the driver leaves the employment of the motor carrier which issued the certificate or is no longer qualified under the rules in this part.
An employee of a non-motor carrier who occasionally or part time drives for a motor carrier:
A person who drives for one motor carrier (even if it is only one day a month) would not meet the definition of an intermittent, casual, or occasional driver. The motor carrier must fully qualify the driver and maintain a qualification file as a regularly employed driver.
With all of that stated, it is still in the best interest of a motor carrier and the best liability protection to require all drivers regardless of employment status to complete a full qualification process with a complete file on each and every driver that operates a commercial motor vehicle.
Now, how does the Drug and Alcohol testing regulations address a shared driver?
Keep in mind that Drug and Alcohol regulations apply to drivers that operate commercial motor vehicles in excess 26,000 lbs GVWR or are transporting HM in placardable quantities or passengers.
Pre-employment testing: There is an exception to pre-employment testing found in CFR 382.301. However, there are many requirements to the exception and basically you are relying on the compliance of another motor carrier for your own compliance. As a better practice and your best liability protection, administer a Pre-employment Drug screen to all new drivers regardless of employment classification.
Random Testing: When a driver works for two or more employers, in whose random pool must the driver be included? Answer: The driver must be in the pool of each employer for which the driver works.
Yes. An employer is required to conduct pre-employment and annual queries for all drivers subject to drug and alcohol testing under 49 CFR Part 382.
While the employee may perform more than 50 percent of their functions for a mode other than FMCSA, possibly placing the employee in that agency’s random pool, the Clearinghouse query requirements apply so long as the employee performs any FMCSA-regulated functions.
All other testing, post-accident, reasonable suspicion, and follow-up testing would apply as to any other CDL driver.
And finally, how do the Hours of Service regulations apply to shared drivers?
Drivers used by more than one motor carrier:
When the services of a driver are used by more than one motor carrier during any 24 hour period in effect at the driver's home terminal, the driver shall submit a copy of the record of duty status to each motor carrier. The record shall include:
o All duty time for the entire 24 hour period;
o The name of each motor carrier served by the driver during that period; and
o The beginning and finishing time, including a.m. or p.m., worked for each carrier.
Motor carriers, when using a driver for the first time or intermittently, shall obtain from the driver a signed statement giving the total time on duty during the immediately preceding 7 days and the time at which the driver was last relieved from duty prior to beginning work for the motor carriers.
Managing Your DOT Random Testing During Unprecedented Times
End-of-year holidays and vacations often throw a wrench into a motor carrier's plans to notify drivers of DOT random testing. Then add in a national health emergency such as COVID-19, and your annual testing may fall short.
Carriers subject to 49 CFR Part 382 must meet the minimum annual testing rates, 50 percent for drugs and 10 percent for alcohol, by the last day of the year. With only a few weeks remaining in 2020, it is important to consider your last selection and the timing of notifications if you haven't already.
If a motor carrier procrastinates on scheduling tests, it may run into issues with increased deliveries over the holiday season, vacations, and company shutdowns.
COVID-19’s impact on your FMCSA testing
COVID-19 became an obstacle early in 2020 for many in fulfilling their random testing obligations. The pandemic continues to be a hindrance for some as cases spike nationally.
An enforcement notice posted mid-year by the Federal Motor Carrier Safety Administration (FMCSA) addresses these difficulties. FMCSA states that employers capable of meeting the random testing requirements under §382.305 must continue to do so. However, the agency realizes that motor carriers in some locations may be unable to comply due to the ongoing impacts of the emergency.
As a result, the agency may exercise discretion when enforcing:
- The minimum annual random testing rates, and
- The requirement to administer the random tests reasonably throughout the calendar year.
But as FMCSA stated in its guidance, “This Notice is not intended, and should not be perceived, as suspending the current random testing requirements.”
Document the circumstances
Instead, FMCSA clarifies that employers must continue to select at the current annual testing rates and attempt to spread the random tests evenly throughout the calendar year. If the public health emergency prevents a motor carrier from complying with §382.305, it must document the specific reasons for non-compliance, such as:
- No available options for testing. An example might be testing facilities in the region were closed or had a shortage of testing personnel. Motor carriers should document these circumstances, along with actions taken to find an alternate testing site.
- Drivers unavailable for testing. If a driver is selected but is unavailable due to a leave of absence (LOA), such as quarantine or contracting COVID-19, this should be documented. As with any LOA, the dates should be noted to show the inability to notify the driver.
- Driver layoffs. If tests were not spread evenly through the calendar year due to prolonged or intermittent driver furloughs, the employer should explain the impact of COVID-19 on its operations (e.g., X-number of drivers laid off for a specified time period affecting the testing cycle).
During motor carrier investigations occurring in calendar year 2021, enforcement will take into consideration the motor carrier’s documented reasons for random testing violations in 2020 and may exercise enforcement discretion.