In November, the Court of Appeals stayed the interim final rule on non-domiciled CDL drivers – meaning states were not required to follow the rule. On December 3^rd, the Court put the case on hold to give FMCSA time to issue a final rule. The previous stay will remain in effect while the case is on hold.

Although FMCSA will likely use every tool at its disposal to expedite the issuance of a final rule, a specific time frame for the final rule has not been announced. FMCSA is required to update the Court while the case is on hold and the first update is due March 3, 2026, and then every 90 days. FMCSA is likely aiming to issue the final rule before its first status report is due. Given the over 8,000 comments they will need to review and address, issuance of a final rule within that shortish (by government standards) time frame will be hard. Resolution of the court cases challenging the final rule will take a long time. It is possible any challenge may ultimately end up at the Supreme Court.

But in the meantime, what are employers supposed to do?

Although the interim final rule did not require employers to terminate non-domiciled CDL drivers, it argued that they presented an inherent safety risk. Most states have already paused issuance and renewal of all non-domiciled CDLs either in response to the interim final rule or in response to a directive from FMCSA arising from an audit of the state licensing program, such as the well-publicized directives to California and, most recently, Minnesota.

When the Court issued the stay in November, a few states resumed issuance of non-domiciled CDLs under the pre-interim final rule requirements. And a few other states resumed issuance of non-domiciled CDLs under the interim final rule. But most states have continued the pause. Authoritative information regarding a particular state’s current process has been difficult to come by. The resulting patchwork of licensing approaches and lack of authoritative information is incredibly challenging to navigate as an employer.

As of this post, unless the state improperly issued the license, these drivers hold a valid CDL until expiration. However, you may not know that the license was improperly issued until the licensing agency downgrades the license. Even then you will likely not know unless the driver is licensed in a state that provides employer notifications, or the driver tells you. You can expect FMCSA to exert maximum pressure on states to downgrade improperly issued licenses as it seeks to strengthen the integrity of the CDL licensing process. If you haven’t already, you will also likely see insurers provide increased scrutiny for this population of drivers or consider restricting them from coverage.

To adapt to this environment:

• Identify which drivers are potentially impacted.
• Consider potential impacts to your business operations.
• Follow content and coverage of these issues but be cautious about changing business processes in response to press pronouncements.
• Develop a consistent and uniform approach to address these issues within your company.
• Track expiration dates for licenses and look for obvious red flags, e.g., a non-domiciled license issued with an 8-year expiration. This could mean that the licensing agency did not marry the driver’s work authorization date with the license expiration date, and these licenses are likely invalid.
• Develop a succession plan early on to account for drivers who are unable to renew licenses.
• Develop a communications strategy for your employees, supervisors, managers, and leadership.
• Finally, as with any employment action that could implicate non-discrimination laws, consult with your legal counsel to analyze and address competing interests, including the risk of employment claims and risk the rule will be weaponized in accident litigation.

Feel free to reach out to Christopher Eckhart, Sue Lawless, or Brigitte Collier for support or questions.