On July 6, the Federal Motor Carrier Safety Administration (“FMCSA”) acknowledged current and anticipated continued COVID-19-related disruptions to operations in the motor carrier industry by issuing a Notice of Enforcement Discretion Determination for random controlled substance (drug) and alcohol testing. According to the agency, as phased re-opening occurs across the country, the pace at which normal operations resume will vary state by state. Some regions may continue to face conditions that leave motor carrier employers unable to comply with certain drug and alcohol testing requirements under 49 C.F.R. Part 382, with medical supplies, facilities, and providers directed toward and focused on COVID-19 diagnostic and treatment efforts.
Recognizing these barriers to full testing compliance that may continue in certain areas, the FMCSA states that it may exercise discretion to determine not to enforce: (1) minimum annual random testing percentage rates (typically, 50% for drugs and 10% for alcohol); and (2) the requirement, stated in 49 C.F.R. 382.305, that employers ensure dates for random testing are spread reasonably throughout the calendar year. The Notice is issued, the agency states, to “assure employers unable to fully comply” with regulatory requirements that the FMCSA “will provide reasonable enforcement flexibility during this unprecedented pandemic, while also meeting [its] core safety mission.” But, the agency stresses, the Notice is “not intended, and should not be perceived, as suspending the current random testing requirements” provided for in the regulations.
Rather, all employers that are capable of meeting regulatory testing requirements must continue to do so. Employers that cannot must maintain written documentation explaining and justifying the reasons for noncompliance. What does this mean, practically speaking, and what testing best practices should motor carrier employers follow in order to mitigate their risks?
Motor carriers must continue to select drivers from their pool of employees for random testing at the required regulatory rates. This means that employers must select 50% of their average number of driver positions to test for controlled substances and 10% to test for alcohol. If a test cannot be completed due to the COVID-19 pandemic, the motor carrier must prepare and maintain written documentation that details the precise reasons for non-compliance. Satisfactory written documentation will identify and document: (1) closure of local medical facilities; (2) restricted use of testing facilities; (3) unavailability of testing personnel or resources; (4) steps taken to identify alternative testing sites or resources (including the identity of personnel involved in identifying alternative sites or resources, the dates when efforts were made to locate alternative sites or resources, and the specific steps taken); and/or (5) the reasons why alternative sites, personnel, or resources were not used (i.e., lack of availability for appointment at or restricted use of alternative resources, infeasibility of access due, for example, to travel distance of alternative sites or their location in a place that would require a mandatory quarantine period upon return from testing, and/or inability, despite efforts, to locate adequate open alternative testing resources).
Motor carriers who cannot ensure that the dates of random testing are reasonably spread throughout the year should likewise document the specific reasons why they cannot meet that requirement. The FMCSA notes that, in addition to the lack of available testing sites or personnel, other factors might be relevant, like prolonged or intermittent driver furloughs. Employee absence due to personal illness, family illness, or required quarantine periods might also be relevant.
The Notice is time limited. By its terms, it pertains only to employers’ noncompliance with random testing requirements in calendar year 2020. While the FMCSA notes that it “may exercise enforcement discretion in connection with motor carrier investigations occurring in calendar year 2021,” no such discretion is guaranteed and the instant Notice “establishes no precedent for future determinations.” Prudent motor carrier employers should keep apprised of FMCSA notices and enforcement policies. Going forward, as in 2020, any motor carrier that can comply with regulatory requirements must comply. If a motor carrier cannot comply, it should keep detailed documentation that explains the reason why compliance was not possible.
The team at Ansa Assuncao LLP has extensive experience counseling motor carrier and transportation clients on the applicability and effect of FMCSA regulations and policies. We’re ready to guide clients through how those regulations and policies apply in a pandemic and after.