The COVID-19 pandemic has highlighted the central role local and long haul trucking companies and drivers play in the overall U.S. economy and specifically our public health infrastructure.  Now, as states and businesses around the country gradually reopen and truck deliveries begin to ramp up, employers in the commercial trucking industry should be aware of recent changes to Hours of Service regulations as well as COVID-19-related guidance on keeping employees and the general public healthy and safe.  By updating their policies and procedures and enacting responsible safety measures, motor carriers will be in the best position to weather the storm of this pandemic and avoid the risks associated with employment litigation and compliance pitfalls.

Hours of Service Regulations

The Federal Motor Carrier Safety Administration (“FMCSA”), which falls under the United States Department of Transportation (“DOT”), is responsible for developing and enforcing Hours of Service (“HOS”) regulations for the trucking industry.  HOS regulations limit when and how long an individual may drive in order to reduce the possibility of driver fatigue.  The existing HOS regulations for property-carrying vehicles under 49 C.F.R. § 395.3 are as follows:

• Drivers may drive a maximum of 11 hours within a 14-hour window after coming on duty.
• Drivers can only come on duty after taking 10 consecutive hours of off-duty rest time.
• If more than 8 consecutive hours have passed since the driver’s last off-duty (or sleeper-berth) period of at least 30 minutes, the driver must take an off-duty break of at least 30 minutes before driving. This does not apply to drivers who qualify for either of the short-haul exceptions in  395.1(e)(1) or (2).
• Drivers may not drive after 60/70 hours on duty in 7/8 consecutive days.

For HOS regulations to apply, the driver’s property-carrying commercial motor vehicle must (1) be used on public highways in interstate commerce and (2) meet certain gross vehicle weight standards.  According to the FMCSA, commercial trucking employers who meet those requirements do not need to comply with state meal and rest period laws because the HOS regulations preempt state law.  This is particularly significant for motor carriers who operate in California.  While the Ninth Circuit Court of Appeals has yet to weigh in on the FMCSA’s December 2018 Preemptive Determination with respect to California’s meal and rest period requirements under the Labor Code and Industrial Welfare Commission Wage Order 9, thus far district courts in California have upheld the FMCSA’s decision.^[i]  A ruling from the Ninth Circuit is anticipated later this year.^[ii]

Given the preemptive effect of the FMCSA’s HOS regulations, modifications to existing regulations are significant because they impact tens of thousands of truck drivers throughout the country—including employee drivers as well as independent owner/operator drivers.  As discussed below, in recent months HOS regulations have undergone both temporary and permanent changes, all which will have a significant impact on the transportation business for years to come.

Temporary Changes to Hours of Service Regulations

In response to the ongoing pandemic, the FMCSA issued a National Emergency Declaration for commercial motor vehicles delivering relief during the first few months of the COVID-19 pandemic.  The FMCSA issued Emergency Declaration No. 2020-002 on March 13, 2020, and recently extended and expanded its relief through June 14, 2020.  Under the emergency declaration, motor carriers and drivers providing “direct assistance in support of relief efforts related to the COVID-19 outbreak” are granted emergency relief from Parts 390 through 399 of the FMCSRs.  Consequently, HOS regulations for property-carrying vehicles under 49 C.F.R. § 395.3 have been suspended when motor carriers and drivers are providing “direct assistance in support of relief efforts.”  The suspension of HOS regulations permits drivers to operate a commercial vehicle for longer than eleven hours without needing to take the required ten consecutive hours off duty.  That being said, drivers who inform carriers that they require immediate rest shall be given at least ten consecutive hours off before the drivers are required to return to service.

Emergency Declaration No. 2020-002 covers transportation to meet immediate needs for:

• medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
• supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;
• food, paper products and other groceries for emergency restocking of distribution centers or stores;
• immediate precursor raw materials — such as paper, plastic or alcohol — that are required and to be used for the manufacture of items in categories (1), (2) or (3);
• fuel;
• liquefied gases to be used in refrigeration or cooling systems;
• equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
• persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and
• persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Notably, “direct assistance” does not include routine commercial deliveries, including truck loads mixed with a nominal amount of qualifying emergency relief added simply to obtain the benefits of the emergency declaration.

California Governor Gavin Newsom signed a similar order, Executive Order N-31-20, that also permits drivers to exceed the hours of service limits specified in California Vehicle Code section 34501.2 and California Code of Regulations, Title 13, section 1212.5.  California’s waivers are in effect for the duration of the FMCSA’s Emergency Declaration 2020-02.

The FMCSA took the position that the most recent extension occurred because the COVID-19 national emergency remains in place.  It therefore appears likely that Emergency Declaration 2020-02 will be extended again if the President’s national emergency declaration continues through June.

Permanent Changes to Hours of Service Regulations

In a ruling unrelated to COVID-19, the FMCSA announced on May 14, 2020, that it finalized permanent changes to its HOS regulations.  The ruling comes nearly two years after the FMCSA first issued an advanced notice of proposed rulemaking in August 2018, seeking public input on potential revisions to certain HOS provisions.  After receiving over 5,000 comments, the FMCSA proposed detailed changes back in August 2019, and received an additional 2,800 comments during the subsequent comment period.  The new HOS regulations will become effective 120 days after publication in the Federal Register, likely making them effective in September of 2020.

The new final rule relaxes the 30-minute rest break requirement in two substantial ways.  First, the 30-minute period is now referred to as a “non-driving interruption” that “may be satisfied by any non-driving period of 30 minutes, i.e., on-duty, off-duty, or sleeper berth time.”  Accordingly, drivers can be expected to remain on-duty and perform nondriving tasks like completing paperwork, planning routes, or refueling their trucks during the required 30-minute period.  Second, the 30-minute “break” is now only mandatory if the driver has actually been driving for eight hours straight, not just the period of time the driver is on duty.  In other words, drivers who do not drive for eight hours straight are not entitled to a 30-minute rest break under the new rule.

Although the final rule also contained modifications to the short-haul trucker exemption, sleeper-berth exception, and adverse driving conditions exception, the 30-minute rest break changes are certainly the most significant.  As noted above, the Ninth Circuit Court of Appeals has not addressed the recent FMCSA’s Preemption Determination.  Until the Ninth Circuit provides greater clarity on this important issue, motor carriers with employee drivers in California should consult with counsel before relaxing meal period and rest break policies.

Safety and Health Guidance Related to COVID-19

Thanks to COVID-19, employers throughout the country have become more familiar with the federal Occupational Safety and Health Administration (“Fed/OSHA”) and Fed/OSHA-approved State Plans like California’s Division of Occupational Safety and Health (“Cal/OSHA”) (collectively “OSHA”) that enforce an employer’s responsibility to protect the health and safety of their employees.  Much of the guidance issued by OSHA during the ongoing COVID-19 pandemic has originated from guidance from the United States Centers for Disease Control and Prevention (“CDC”).  The CDC’s guidance ranges from general industry guidance applicable to all employers to industry-specific guidance that addresses infection hazards specific to workplaces within an industry.

In recent guidance, the Centers for Disease Control and Prevention (“CDC”) identified infection prevention control measures that employers with long-haul drivers (and presumably short-haul drivers) should consider adopting.  Note that unless required by the federal Occupational Safety and Health Administration (“OSHA”), a state-approved OSHA plan (e.g. Cal/OSHA), or other state regulations or ordinances, CDC recommendations are not compulsory on employers.  The CDC’s guidance identified the following potential sources of COVID-19 exposure for drivers: (1) close contact with truck stop attendants, store workers, dock workers, other truck drivers, or others with COVID-19, and (2) drivers touching their nose, mouth, or eyes after contacting surfaces touched or handled by a person with COVID-19.  The CDC also advises commercial trucking employers to make a plan to handle the unique COVID-19 related complications drivers face, including for example, what to do if a driver becomes sick or tests positive for COVID-19 while on the road.  The CDC recommends that the plan address where to stop, where and how to seek medical advice and treatment, and plans for freight delivery.

The CDC further recommends that drivers practice social distancing in the following manner:

• Limit time spent outside of the truck cab during fueling, loading and unloading, and at rest and truck stops.
• Use paperless, electronic invoicing for fueling, deliveries, and other tasks, when available.
• Contact facilities in advance to make an appointment for unloading of cargo and be aware that some facilities may not grant access to restrooms, and plan as best as possible.
• Use radio/phone to talk with dock managers or other drivers, if possible.
• Pack food, water, and supplies to limit the number of stops.
• Avoid shaking hands and touching surfaces often touched by others when outside of the cab.
• Keep the truck well-ventilated.

The CDC also recommends employers establish cleaning and disinfecting procedures for the following frequently touched surfaces on a routine basis:

• In the truck cab (driver door handle, steering wheel, seat belt and buckle, arm and head rest, seat cover, turn signal, wiper controls, dashboard, air ducts, radio, and temperature controls).
• In the sleeper berth (light switches, mattress tray, temperature controls, and other flat surfaces).
• If another individual must have access to the interior of the truck (e.g., mechanics, other drivers, inspectors), the truck should be cleaned and disinfected after the individual accesses the truck.

As for training drivers on proper hand hygiene, the CDC recommends that drivers wash/sanitize their hands at the following times:

• Before entering and leaving the cab, including deliveries, loading and unloading of cargo, rest breaks, fueling, and other activities;
• Before eating or preparing food;
• After putting on, touching, or removing cloth face coverings;
• After blowing your nose, coughing, or sneezing; and
• After using the restroom.

The CDC also recommends employers do the following:

• Provide drivers with all PPE (including vests, safety glasses, hard hats) that they might need while on the road so that the driver does not need to borrow PPE from others.
• Provide alcohol-based hand sanitizers containing at least 60% alcohol for truck cabs and disposable disinfectant wipes so that surfaces commonly touched can be wiped down.
• Provide tissues and small trash cans for truck cabs.
• Institute measures to physically separate and increase distance between drivers, other coworkers, and customers, such as:
  • Develop policies and technology options that allow and encourage contactless deliveries, such as no-signature delivery. These options limit contact, provide space, and avoid the sharing of items like pens and electronic signature pads between drivers and individuals at the delivery location.
  • During driver training situations, use virtual training methods and in-vehicle monitoring systems where possible. Limit ride-alongs and in-person classroom-based training.
• Take additional precautions to address risks associated with ride-alongs or team driving (two drivers in the cab on a long-haul run) when they cannot be avoided. For example, install a removable barrier between the driver and passenger that does not obstruct the task of driving and/or to separate sleeper berth.
• Pre-qualify truck stops, rest areas, and hotels to ensure such facilities are open, supplied, and follow recommended COVID-19 safety practices, such as:
  • cleanliness and disinfection (such as routine cleaning, available hand-sanitizing stations, and private showers);
  • proper food handling and food service (such as replacing self-service with full service); and
  • contactless fuel payment.

Employers should also monitor guidance from Fed/OSHA and State Plans where applicable.  For example, recent guidance from Cal/OSHA identifies COVID-19 infection control prevention measures that are mandatory for all California employers to include in their written Injury and Illness Prevention Program where generally applicable.  In addition, employers should consult any health and safety guidance their state issues in conjunction with phased reopening plans, some of which may be industry-specific, such as California’s reopening guidance that covers delivery services and logistics/warehousing facilities and mentions drivers’ interactions at ports or manufacturing facilities.

Main Takeaway

The changes to HOS regulations and COVID-19-related guidance require motor carriers to rethink how they operate their businesses during the course of this pandemic and well into the future.  Employers with any questions or concerns about the risks associated with strictly adhering to the new HOS regulations and the increased safety and health obligations brought on by the ongoing COVID-19 pandemic should consult with experienced employment counsel.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

FOOTNOTES

[i]  See e.g., Ayala v. U.S. Xpress Enterprises, Inc., No. 15-cv-00137-GW-KK, 2019 WL 1986760 (C.D. Cal. May 2, 2019); Robinson v. Chefs’ Warehouse, Inc., No. 15-CV-05421-RS, 2019 WL 4278926 (N.D. Cal. Sept. 10, 2019); Henry v. Cent. Freight Lines, Inc., No. 2:16-CV-00280-JAM (EFB), 2019 WL 2465330 (E.D. Cal. June 13, 2019); Connell v. Heartland Express, Inc., No. 2:19-CV-09584-RGK-JC, 2020 WL 813022 (C.D. Cal. Feb. 6, 2020).  For more detailed analysis on Ayala, please check out the firm’s blog article.

[ii] Briefing has already concluded in Intl Brotherhood of Teamsters v. FMCSA, Court of Appeals Docket No. 18-73488, and oral argument should be scheduled later this summer.