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September 16, 2020

Face-to-face assessments resume on October 1st

 
I called ODAPC last week to ask whether they would be allowing an additional extension for SAPs to conduct assessments virtually after September 30.  They informed me that there will be no extension.  Starting October 1, all assessments (initial and follow-up) must be face-to-face. 

That means ODAPC will be enforcing 40.291(a)(1). 


SAPs who conduct virtual assessments after October 1 will be subject to enforcement action, most likely the issuance of a Public Interest Exclusion (PIE), and employers that you provide services for could be subjected to fines and penalties.
 
Please spread the word!

REMINDER: SAP office addresses must be bona fide


Please remember that any office address you list in your SAPlist profile MUST be a real and bona fide office address. You cannot list your private address or a McDonald's in the next city. 

August Report from the Clearinghouse

 
The August Report is on the Clearinghouse website.  https://clearinghouse.fmcsa.dot.gov/Resource/Index/monthly-report-Aug2020
 
By comparing the August report with the previous July report, we see that there were almost 5,000 new violations in the month of August.  I expect we’ll see that number increase every month for a while, as employers move toward recovering from the emergency shutdowns and closures.  I also expect that many random pools will have to make up for lost time during the shutdown, which could result in a higher than normal positivity rate for the last quarter of the year.
 

Do you know FMCSA’s definition of safety-sensitive functions?


At the top of page 6 of every report you’ll see a paragraph that says the driver must be “removed from safety-sensitive functions, including operating a Commercial Motor Vehicle.”
 
Notice that it says “functions” (plural).  FMCSA has 6 safety-sensitive functions, and driving is only one of them An employer who doesn’t terminate a driver may occasionally reassign a driver to other jobs, without knowing that FMCSA’s definition of safety-sensitive is quite broad.  The definition of safety-sensitive functions are listed in 382.107.  Those safety-sensitive functions include:
  • All time waiting to be dispatched (this is relevant only when an employer might order a driver to submit to an alcohol test while he is waiting to be sent out on a run)
  • All time inspecting, servicing, or conditioning any Commercial Motor Vehicle (this means that a driver can’t be assigned to change tires, clean trucks, or repairing trucks)
  • All time spent at the driving controls of a Commercial Motor Vehicle (which every employer knows and understands)
  • All time, other than driving, IN or UPON any Commercial Motor Vehicle, except in a sleeper berth (this means that a driver can’t sit in the passenger seat while riding to and from the job site; a garbage truck driver can’t be reassigned to stand on the back platform of the garbage truck and ride down the alley, picking up garbage)
  • All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading…(this means that a driver can’t be assigned to load trucks with a forklift, a school bus driver can’t be assigned to helping kids get on and off the school bus, a garbage truck driver can’t load garbage)
  • All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle (this means that a driver can’t work in the shop, repairing disabled vehicles)
 If you find out that a driver has been reassigned to any of these functions, or if an employer says “What can I have him do?”, you should simply inform the employer about this definition.  You don’t have authority to tell the employer that he can’t do something.  You can only tell him what the regulation says, and then let him decide what he will do with that information.
 
Several of you asked why, on p. 4 of these reports, the first category of "actual knowledge" says “none”.  That’s because an "actual knowledge" violation doesn’t (and shouldn’t) have a test result.  In every "actual knowledge" situation, there would be no test.  When an employee admits to using a controlled substance, that admission alone is the evidence.  The employer doesn’t need a test.
 
Here is what is FMCSA "actual knowledge".  A violation of actual knowledge must be recorded on the Clearinghouse by the employer.  The employer will be asked to download documentation to support actual knowledge.  Each of these require a SAP return-to-duty process.  So when one of these cases comes into your office, don’t ask “What are you doing here?”:
  • A driver admits to his employer that he has used drugs or alcohol.  (This is FMCSA only.  No other transportation mode has "actual knowledge", so you can’t do a SAP process for an employee who is not a driver under FMCSA)
  • An employee is caught using alcohol or drugs on the job
  • An employee’s previous employer reports a violation, but there are no SAP reports, and the employee has not completed a SAP process
  • A driver, on duty, driving a Commercial Motor Vehicle, receives a citation for being under the influence while operating a CMV.  (A DUI in a personal vehicle, while not at work, is NOT a DOT violation, and an employer cannot require a SAP return-to-duty process.)
  • A driver consumed alcohol within 4 hours of performing safety-sensitive functions (this might be the “beer at lunch down at the corner bar” situation)
  • A driver consumed alcohol between the time of an accident and a post-accident alcohol test (yes, it happens)
 
Keep in mind:  Violations are not limited to positive tests and refusals. 
 
And, I will say it again, "actual knowledge" applies ONLY to drivers under Federal Motor Carrier Safety Administration regulations.

How do I get myself removed from a case on the Clearinghouse?

 
As you know all too well, once you have started an assessment, you are the driver’s SAP, and the driver is not permitted to look for a different SAP.  However, there have been situations where the first meeting has not yet begun, the SAP has been called out of town on an emergency, etc., and the SAP has wanted to be removed from the case.

If you haven’t yet accepted the request, it’s a simple matter of going to your dashboard and rejecting the request.  The driver will be removed, and will get a message that he needs to find a different SAP.  No explanation is needed.
 
However, if you have accepted the driver’s request, it’s more involved.  You will have to send an e-mail to the Clearinghouse, ask to be removed, and explain why you are making the request.  The Clearinghouse might want to check with the driver, because both parties must agree to the change.  Address your e-mail request to clearinghouse@dot.gov

I forgot to enter a driver’s compliance date, and now it’s five days late.  What should I do?

 
Things happen.  Don’t delay.  Enter that date as soon as you can.  Until that compliance date is on the driver’s record, the driver can’t be scheduled for a return-to-duty test, which translates to days not working.
 
You may be asked why you are entering the date after the deadline.  Just explain.  But then, resolve to do whatever you can to avoid this happening in the future.
 
Because the Clearinghouse is a computer, it will record the exact day/hour/second that you, or an employer, or an MRO, enters information.  If you are entering a date because the MRO was late entering the violation, the Clearinghouse will be able to know that.
 
Some of you have told me that you are allowing a third party to enter information on your behalf.  I encourage you to think twice about giving up that authority.  If that third party (an EAP, or a broker, or a C/TPA), fails in some way to enter it correctly or to enter it at all, you are still the responsible party.  It will take 5 minutes for you to enter a date on the Clearinghouse.  I encourage you to do it yourself, so you know it is done, and done on time.  Don’t trust someone else to do it for you.  (Just my opinion.)

SAPlist UREMINDER: SAPlist U For Your Continuing Ed Requirement

SAPlist U provides 12 hours of continuing education related to DOT's testing rules.  It is endorsed by EACC, NASW, and NBCC.  It’s online, convenient, and you can complete it at your own pace.

Go to SAPlist U Continuing Ed

Have questions? Need assistance?


For questions relating to regulations and SAPlist U, use the "Ask Lee" website form. For all other questions, use our general contact form.
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Until next time,

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Lee Mauk  |  SAPlist.com and SAPlist U
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