On March 23, the Department of Transportation (“DOT”) issued guidance for conducting DOT-required drug and alcohol testing in safety-sensitive transportation fields (aviation, trucking, mass transit, railroads) in light of concerns that disruptions caused by COVID-19 were interfering with, and even preventing, compliance with testing requirements. The next day, the Federal Motor Carrier Safety Administration (“FMCSA”) issued its own guidance, effective through June 30, 2020, clarifying how motor carriers and employees should manage any disruptions to testing.
The FMCSA offers the following guidance for motor carriers unable to conduct required testing due to the unavailability of program resources (collection sites, breath alcohol technicians, medical review officers, etc.), COVID-19-related supply shortages, facility closures, state or local government quarantine, stay-at-home or social distancing requirements, and other impediments:
(1) Random testing: 49 C.F.R. § 382.305(k) requires motor carriers to ensure that dates for random alcohol and drug tests are spread reasonably throughout the calendar year. Random testing must be performed at rates of 50% (drug) and 10% (alcohol). The FMCSA suggests it be done quarterly. If COVID-19-related disruptions prevent a motor carrier from performing random selections and tests sufficient to meet the 50%/10% rate, the carrier should: (1) make up the tests by the end of the year; and (2) document in writing the reasons why tests could not be performed and the actions taken to locate alternative collection sites or other testing resources.
(2) Pre-employment testing: Unless the exception in 49 C.F.R. § 382.301(b) applies (participation in a prior testing program within the previous 30 days), a motor carrier that is unable to conduct a pre-employment drug test in accordance with 49 C.F.R. § 382.301(a) cannot allow the subject prospective employee to perform any DOT safety-sensitive functions until a negative pre-work test result is received.
(3) Post-accident testing: 49 C.F.R. § 382.303 requires motor carriers to test each accident-involved driver for drugs and alcohol as soon as practicable following an accident. If due to COVID-19-related disruptions a motor carrier cannot administer an alcohol test within 8 hours, or a drug test within 32 hours, the motor carrier must document in writing the specific reasons why the test could not be conducted.
(4) Reasonable suspicion testing: Under 49 C.F.R. § 382.307, motor carriers who reasonably suspect that a driver has violated drug or alcohol prohibitions must require that driver to submit to testing. In addition to documenting the contemporaneous observations that led to the test (i.e., the driver’s appearance, behavior, speech, or odors), a motor carrier who is unable to obtain testing should document the specific reasons why testing could not be obtained (including efforts made to find alternative collection sites) and follow the rules in Section 382.307(e).
(5) Return-to-duty testing after drug/alcohol treatment: In accordance with 49 C.F.R. § 40.305(a), motor carriers must not allow a driver to perform safety-sensitive functions until return-to-duty testing is conducted and a negative result is obtained.
(6) Follow-up testing after return-to-duty process: If testing cannot be completed, the motor carrier should: (1) document why testing could not be completed in accordance with the testing plan, including efforts made to mitigate the effect of any COVID-19-related disruption; and (2) conduct the test as soon as practicable.
The FMCSA encourages motor carriers and employers to respond to employee concerns regarding the safety of obtaining drug and alcohol testing in the current environment in a sensitive and respectful way. The responsibility for evaluating the circumstances of what constitutes an employee’s refusal to test, and to determine whether the employee’s actions or stated objections should be considered a refusal to test under 49 C.F.R. § 40.355(i), belongs to the motor carrier.
The team at Ansa Assuncao LLP has extensive experience advising and counseling motor carrier and transportation clients on the applicability and effect of DOT and FMCSA regulations. We’re ready to guide clients through how those regulations apply in a pandemic and after.