On March 23, 2020, the U.S. Department of Transportation (DOT) issued guidance to DOT-regulated employers, employees, and service agents regarding drug and alcohol testing concerns during the ongoing COVID-19 pandemic. In the guidance, the DOT explains its commitment to maintaining public safety while simultaneously providing flexibility to transportation industries operating during the national emergency. Though the guidance does not have the full force and effect of law, and is not meant to be binding on the public, the DOT says it clarifies some of the existing legal requirements given the current state of the COVID-19 pandemic.
The DOT’s guidance explained that employers still must comply with applicable DOT training and testing requirements, to the extent possible. However, the DOT recognized that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP). In light of this, the DOT states that regulated employers first should make a reasonable effort to locate necessary resources, and, if possible, consider mobile collection services for required testing if the collection facilities are unavailable.
The DOT also advises that employers unable to conduct testing as a result of supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, must continue to comply with existing applicable DOT requirements to document why a test was not completed. In addition, any testing that can be conducted later must be conducted within the terms of the applicable modal regulations.
Probably most important, even if employers are unable to conduct DOT testing due to the unavailability of resources during the COVID-19 pandemic, the DOT says that the underlying modal regulations still apply. This means that employers, for example, are prohibited by the guidance from permitting a prospective or current employee to perform any DOT safety-sensitive functions without a “negative” drug pre-employment test result. In other words, all the requirements of the DOT drug testing regulations still apply, and employers must comply with them.
Given that some employees may be concerned about possible public health risks associated with the collection and testing processes, employers may want to review DOT testing requirements to determine whether collection and testing processes can be performed at a later date. Additionally, the DOT says that “it is the employer’s responsibility to evaluate the circumstances of an employee’s refusal to test and determine whether the employee’s actions should be considered a refusal,” as required by the DOT regulations. Because the COVID-19 outbreak is a unique public health risk, the DOT advised employers to be sensitive to employees who indicate they are uncomfortable with going to clinics or collection sites, but the agency does not provide guidance as to what an employer can or should do in such an event. However, the DOT does request that employers verify with their clinics or collection sites that they have instituted safeguards to minimize the risk of employees’ exposure to COVID-19.
Finally, the DOT advises employers reevaluate their back-up plans to ensure that they are current and effective for the outbreak conditions. These plans “should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency.” The guidance also advises employers to communicate regularly with their service agents regarding the agents’ availability and capability to support their DOT drug and alcohol testing programs.
Employees and Service Agents
The DOT also reminds DOT-regulated employees to visit a medical provider and to communicate with their employers if they are experiencing COVID-19 related symptoms. Likewise, the agency recommends that employees discuss concerns regarding testing with their employers. The guidance also advises service agents to continue to provide services to DOT-regulated employers if possible to do so within federal, state, and local mandates.
Since DOT-regulated employees are not likely to seek out this guidance on their own, their employers may want to remind them of the status of DOT drug-and-alcohol testing requirements and the (limited) flexibility of those requirements under the guidance, and related issues. Given that the DOT-regulated employees in certain industries will be deemed “essential” under federal, state, and local mandates, employers in essential industries also may want to continue to communicate with those employees about ongoing policies and procedures the employers have in place to limit the contact and spread of COVID-19. Employers additionally may want to confirm that their procedures are consistent with the guidelines of the U.S. Centers for Disease Control and Prevention in order to escape possible citation under the Occupational Safety and Health Administration’s General Duty Clause and, though unlikely, potential exposure to claims by third parties who contract the virus as the result of an employee’s having contracted COVID-19 from his or her work.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.