In the first full month of enforcement of a new U.S. DOT requirement that drivers who fail a roadside English-Language Proficiency (ELP) test be placed out of service, just shy of 4,500 drivers received citations, according to data from the Federal Motor Carrier Safety Administration compiled by Trucksafe Consulting.
Because there is yet no return-to-duty protocol for drivers placed out-of-service by an ELP violation, nearly all of those 4,448 drivers are indefinitely — potentially permanently — prohibited from operating (A portion of the 4,448 did not carry out-of-service orders, according to data from Trucksafe, though it was unclear why.). At that monthly rate, tens of thousands of drivers could be placed out of service and removed from the driver population by year’s end, and the number will likely continue to climb as enforcement of ELP regulations continues.
July’s violation count — a 430% spike since April’s 835 citations — builds on a 170% month-to-month jump from May to June, the latter of which saw 3,929 drivers flagged for ELP violations. However, drivers in June mostly weren’t placed out of service, as the DOT’s shift in policy, prompted by an Executive Order issued by President Donald Trump in April, didn’t take effect until June 26.
Regulatory risk and ‘significant’ legal exposure of drivers no longer qualified should top fleets’ concerns
With enforcement of English-Language Proficiency regulations ramping up, motor carriers and private fleets must be aware not only of compliance with the rules and their associated regulatory risk — but also of the “significant exposure” to highway crash litigation should an event occur with a driver who may not meet ELP requirements, says Brandon Wiseman, a transportation lawyer and founder and owner of Trucksafe Consulting, a DOT regulatory compliance consulting firm.
“Carriers can’t have blinders on when it comes to ELP,” says Wiseman. “They may only see the potential regulatory consequence of non-compliance — a driver placed out of service, maybe you get a fine, and then move on with your business.”
That only scratches the surface of non-compliance, he says. “The regulatory consequences are the least of your concerns. Your biggest concern should be the highway accident exposure for not following the rules. Under the regulations, if a driver cannot read or speak English, they are not qualified to operate a [commercial motor vehicle],” he says. “You’re putting an unqualified driver in the truck,” and that could lead to crash-payout verdicts in the event of an accident and a lawsuit, he says.
Vetting processes for new hires are a must, and act now for drivers already on the rolls
Compliance with the stricter ELP enforcement is a topic that must be communicated from the top down, says Wiseman. Fleet leadership must work with HR and safety departments to ensure they are aware of the regulations and proceed accordingly.
He recommends implementing a vetting process for new hires to weed out drivers who aren’t qualified.
He cites the recent Aug. 12 high-profile crash in Fort Pierce, Florida, in which three people were killed when a driver, accused of making an illegal U-turn that caused the crash, was cited in the post-crash investigation for an ELP violation and placed out of service. “Fleets can’t afford that type of misstep,” Wiseman says.
Fleets should also implement documented policies or practices for if a driver is cited for an ELP violation. “What is your plan to deal with that?” he says. “Do you terminate them? Rehabilitate them? Give them ELP training? You better have that figured out.”
For drivers who have already been hired and may be subject to ELP enforcement, now’s the time to start managing those instances, too. “Maybe you didn’t know the requirement existed,” said Wiseman. “But if you find yourself in that position now, you can’t ignore it. You have to do something about it. Because, again, they are not qualified to operate if they can’t meet the regulatory requirement. You’re going to be worse off if you know that you’ve got a problem and do nothing about it.”
Fleets should bring those drivers in for a vetting process like that of a new hire, and if they can’t meet ELP requirements, they need to be sidelined, he says. “Sidelined until when? Well, until you get them to a place where they are proficient — where they can understand and communicate with law enforcement officers, read traffic signs, and can read paperwork in English. That’s the standard they have to meet.”
That could mean a termination, he says. But if a fleet decides that’s unfair, it’s incumbent upon the fleet to train them to become proficient in English with a substantive program. He recommends documenting this process, including how and when they complete an English proficiency course, and have it in their employee file should they be cited for an ELP violation.
Constraints on the driver pool could be similar to that of Drug & Alcohol Clearinghouse
In the five and a half years since the implementation of the U.S. CDL Drug & Alcohol Clearinghouse, more than 190,000 drivers have been placed in prohibited status, while more than 300,000 have been flagged for a violation. That’s a significant portion of the driver population that has been rightly barred from operation.
In its first years, around 5,000 a month on average were put into prohibited status in the Clearinghouse. Although it’s only a month in, ELP violation numbers are similar, according to Trucksafe’s analysis of violation data from the Federal Motor Carrier Safety Administration.
What will enforcement of ELP look like at roadside?
As Wiseman points out, there is some inherent subjectivity built into the enforcement of ELP requirements and roadside inspections. “What one officer thinks is not proficient, another officer may think is proficient,” he says.
However, FMCSA has issued a policy establishing a uniform test for officers to administer. If an officer is conducting an inspection at roadside and thinks a driver is struggling to communicate, they initiate a two-part test, says Wiseman.
The first test is to ask a series of questions in English without any interpreting device. Questions include those about their route, the driver’s load, hours of service, etc. “If the responses they get do not indicate the driver is proficient, that’s the end of the test. The driver is placed out of service,” he says. If the driver passes that portion, the officer moves to the second part of the test — the reading proficiency component. The officer is instructed to show the driver a series of road signs and traffic signals and ask them to explain in English what the signs mean. “If they pass that part, they’re good to go and the officer moves on with the inspection,” Wiseman says. “If they don’t pass the sign recognition test, they’re supposed to fail and be placed out of service.”
So far, there is no return-to-duty process published by either FMCSA or the Commercial Vehicle Safety Alliance, and it’s unclear if there will be.
For now, fleets need to take the necessary steps to ensure their drivers are compliant with the regulations and to have documentation to appeal citations if needed. Wiseman recommends having “evidence to prove you’ve done something to make this driver proficient. What I think that is,” he says, “is substantive English language training and test results or a completion certificate available, so if a driver is placed out of service, you can fight it on the back end.”
