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Much has been written previously and elsewhere in this newsletter regarding the details of the FMCSA ruling that requires states to downgrade a commercial driver’s license (CDL) for failure to submit medical certifications and provide the DOT with information about the type of vehicle being driven (self-certification). Like most states, Pennsylvania is scrambling to implement legislation that will create the forms and processes required for this to occur. Since most states are not prepared to enforce the federal recording keeping rule, the FMCSA issued a final rule on November 15, 2011 continuing, until January 30, 2014, the requirement that all CDL hold-ers must carry their medical certification card and all employers must keep a copy of same on file. While the FMCSA’s final rule does not extend the state’s compliance deadline or change the pen-alty for non-compliance, any state that has not implemented the “self-certification” process through its DOT simply has no mechanism to enforce the downgrade penalty. So, what should you do as an employer of CDL holders?

CDL Holders Should Look for In-struction Letters from Penn DOT

As noted, Penn DOT plans to send all Pennsylvania CDL holders letters with instructions and forms beginning December 15, 2011. Current CDL holders employed by you should be on the look-out for the Penn DOT letters and should be prepared to respond promptly. You should also be prepared to assist the CDL holder with the “type of vehicle” designation that will be required. Pri-marily, CDL holders will need to report that they do or do not normally cross state lines and whether the size/type of vehicle they will be driving requires a medical certification. Further, you should retain documentation that will show your compliance with the Penn DOT “self-certification” process when it is announced. Keeping a copy of fax confirmations or hard copy mail delivery receipts is the best way to prove that you did timely comply with process requirements in the event your Penn DOT submissions are lost or delayed in the offices of state regulators.

Update Driver Qualification Records and Related Personnel Documents

The normal ebb and flow of business operations causes significant change. Drivers retire or their medical condition changes, vehicles are replaced, and routes change. Your business records should be updated as your business changes. Employers can take this opportunity to review the records of all drivers to determine if an employee not previously in a position to require an FMCSA medical certification may now be performing duties that may require it. Additionally, you should consider the possibility that you may need to take adverse employment action if an existing employee loses their certified status and/or CDL. Consistently applied writ-ten policies are critical. Consider care-fully your current practices. Do you require all CDL holders to have FMCSA medical certifications or just selected drivers? If some, is your criteria fairly applied, non-discriminatory and based on legitimate business requirements? If all, do you consistently handle drivers who lose or cannot obtain medical certification and is that handling consistent with local, state, and federal laws that may apply to your business regarding disabled workers?

Apply Employment Actions Consis-tently

All good employers take care to act in a manner that is fair and consistent. But “fair and consistent” is a subjective measure and employment decisions of-ten involve complex and competing considerations. Written job descriptions and documentation of the business justi-fication for decisions that affect employees, good or bad, will provide a defense to allegations that adverse em-ployment actions were improperly motivated. This is particularly important since state and federal licensing medical certification requirements overlap and the penalty for failure to “self-certify” puts the CDL itself at stake, not merely the driver’s qualification to perform interstate travel that requires FMCSA certification.

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