Property Casualty

Anti-retaliation and Commercial Driver Rules Could Substantially Impact Employers

RW Smith
RW Smith
Senior Loss Control Consultant

I know, I know…many of you have been holding on to the edge of your seats, anxiously awaiting the update of the Occupational Safety and Health Administration (OSHA) anti-retaliation rule announced in my previous blog. Well, guess what? I have an update for you. The courts have made a decision, and the impact it could have on employers is substantial. I also have new, critical information that needs to be shared if you have commercial drivers working for you.

OSHA Anti-Retaliation Rule Update

As of December 1, 2016, OSHA now has the authority to inspect and potentially cite employers who are using injury-based incentive programs it finds retaliatory. If you recall, various industry groups had filed a lawsuit to block the anti-retaliation portions of the injury reporting rule. Even though the court denied the motion made, it’s important to note that the carrier pushing the motion has indicated it will continue to dispute.

With regard to the rule and what it now means, OSHA must have a probable cause to conduct an inspection and find discriminatory intent behind the incentive program. Please keep in mind that OSHA hasn’t prohibited incentive programs, but employers are going to have to make very thoughtful and strategic decisions regarding their programs, such as their post-accident drug and alcohol testing. As business partners to our clients, it’s our job to consult on solutions and ideas that are in compliance, but keep employees engaged in safety and reduce the frequency and severity of accidents. So don’t hesitate to reach out about this! In the meantime, you can find more information about the rule by clicking here.

What Else is New?

Well, a lot. Now it’s time to talk about something even more exciting and, of course, is yet another acronym…FMSCA…and by this, we mean the Federal Motor Carrier Safety Administration.

The roads are a public place where every driver is susceptible to the risk that’s taken by other drivers. The perception of safety differs between everyone on the road, but when it comes to commercial drivers, unsafe practices can be a catalyst for destruction.

On November 21, 2016, a school bus in Tennessee crashed into a tree and killed six elementary students. At the moment, the bus driver, 24-year-old Johnthony Walker, is charged with five counts of vehicular homicide, reckless driving, and reckless endangerment. Public safety professionals declared speed as factor in the accident.

Incidents like this are thankfully not common, but unfortunately action needs to be taken to avoid and reduce these occurrences with commercial drivers. As a result, the FMCSA and Department of Transportation (DOT) will be enforcing long-awaited federal standards for commercial, entry-level driver training (ELDT). The FMCSA is proposing these training standards for individuals applying for an initial Commercial Driver’s License (CDL); an upgrade of their CDL (for example: a Class B CDL holder seeking a Class A CDL); or a hazardous materials, passenger, or school bus endorsement for their license.

This rule, which was announced just last week by the FMCSA, strives to ensure drivers are properly trained, which is a critical element in improving road safety for everyone. Here’s what you need to know:

  • Curricula — This is subdivided into theory and behind-the-wheel (BTW) (range and public road) segments.
  • Training providers — The training must be obtained from an instructional program that meets the agency’s standards. At a minimum, the training must offer and teach a training curriculum that meets all FMCSA standards for entry-level drivers and must also meet requirements related to course administration, qualifications for instructional personnel, assessments, issuance of training certificates, and training vehicles (for example: equipment). These providers will primarily focus on the ability of the driver to demonstrate proficiency while operating a commercial vehicle and performance of required skills.

This final rule is scheduled to go into effect February 6, 2017, with a compliance date slated for February 7, 2020. For more information about this, click here.

We Can Help

There is a lot to digest and understand; we get it! We have several employees here at Holmes Murphy who have been dedicated to following the development of this topic for the last two years. If you have any questions, please don’t hesitate to reach out. We will help you in any way that we can!

Explore more from Holmes Murphy