NEW WHISTLEBLOWER RULES UNDER CSA
With the full rollout of the CSA 2012 enforcement program rapidly approaching, more and more commercial motor vehicle (CMV) drivers are beginning to realize that operating unsafe vehicles could damage their careers. For some drivers, the only alternative to a bad roadside inspection is to simply refuse to drive, and in many cases their employers have few options but to give in. Do you know your drivers’ rights to refuse to drive unsafe vehicles? Are you training your new drivers on those rights, when required? These issues have gained attention lately due to two factors: the CSA 2010 scoring system and recent changes to the “whistleblower” rules.
Drivers are prohibited from operating CMVs that are not in compliance with the Federal Motor Carrier Safety Regulations and employers are prohibited from requiring drivers to operate non-compliant vehicles. Operating a non-compliant vehicle opens the driver and carrier up to roadside violations and increased liability. That’s where CSA 2010 comes in. The CSA scoring system will track and score individual drivers based on their roadside violations, drawing attention to the drivers with the worst safety records. Poor CSA scores could lead to enforcement action, and also makes the drivers getting these violations less desirable to employers, making it much tougher for them to later find a job. To survive under CSA, drivers need to avoid roadside violations.
So, what is a driver to do when faced with a choice between driving a non-compliant vehicle and risking his/her CSA scores, or being reprimanded or fired? That’s where the “whistleblower” rules come into play. The Occupational Safety Health Administration’s whistleblower rules in 29 CFR 1978.102 state, in part, that: “It is a violation for any employer to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, or in any other manner retaliate against any employee” who refuses to operate a CMV in violation of any safety, health, or security rule, or due to “a reasonable apprehension of serious injury to himself or herself or the public because of the vehicle’s hazardous safety or security condition.”
In other words, if a driver legitimately refuses to drive a CMV because it violates a safety rule, you are not allowed to reprimand the driver in any way. If you do, the driver could file a complaint seeking damages or reinstatement (to qualify for protection under the “reasonable apprehension of serious injury” clause, the driver must have first given the employer a chance to fix the problem).
Does this include a driver who is just ten minutes away from the terminal and who notices that the vehicle has a broken light? If the light is required to be operational under the safety rules, then the answer is yes! The driver could legitimately refuse to drive the vehicle for fear of harming his/her CSA score and/or getting into an accident. This does not prevent the employer from asking the driver to go to a repair facility, but it does prevent the employer from reprimanding the driver if he or she refuses to continue driving.
The whistleblower rules were amended back on August 31, 2010, so it’s a good idea to review the current rules, especially if you use entry-level drivers. Under the rules in 49 CFR 380.503, “entry-level” CMV drivers (those with less than one year experience operating a CMV with a CDL in interstate commerce) must be trained in four subjects, with one of them being their whistleblower protection rights. Now is a good time to make sure that your training materials and company policies are compliant with the new whistleblower rules.
OLD DATA WILL AFFECT YOUR CSA SCORE
As a motor carrier, recent Vehicle Miles Traveled (VMT) and Power Unit (PU) data from your Motor Carrier Registration form, known as the MCS-150, are required and must be up-to-date to properly assess your level of exposure in the Unsafe Driving and Crash Indicator Behavior Analysis and Safety Improvement Categories (BASICs) in the FMCSA’s Safety Measurement System (SMS) under the Compliance, Safety, Accountability (CSA) program. If your VMT data in the FMCSA’s database is from 2010 or older, it will not be used in your calculations when the SMS snapshot is posted. Instead, the level of exposure will default to average PUs over the previous 18 months, which can impact your percentiles in the Unsafe Driving and Crash Indicator BASICs.
NATIONAL REGISTRY GETTING CLOSER
The DOT is reminding the industry that the National Registry of Certified Medical Examiners is now live. The registry is part of a rule posted by the FMCSA aiming to shore up driver medical standards. The new rule requires those who perform medical exams for drivers to be trained, tested and certified to a national standard. It also has created a national online registry of examiners who have met the certification requirement.
The National Registry system went live back in May of 2012. Now, the agency says, medical examiners, training organizations, testing organizations and CMV drivers can easily find the information they need to comply with the new program requirements. Additionally, training organizations can sign up to be listed on the new registry, which will allow medical examiner candidates to quickly find training providers in their area.
As of this writing, there are only 16 medical doctors listed in California right now (and only one in Southern California), so this registry is still pretty small. Hopefully, more doctors will be available and listed by May 2014 when this National Registry goes into effect. To access the current registry online, go to nrcme.fmcsa.dot.gov today.
