The COVID-19 pandemic is interrupting, and in many cases, preventing compliance with the Department of Transportation’s (DOT) drug and alcohol testing regulations. On March 23, 2020, DOT published guidance on compliance with DOT drug and alcohol regulations that clarified some existing legal requirements but offered little in the way of practical solutions. On March 25, 2020, however, the Federal Motor Carrier Safety Administration (FMCSA) published clear, flexible guidance specific to FMCSA’s testing requirements to aid FMCSA-regulated employers unable to comply with FMCSA’s testing requirements due to COVID-19.
If the COVID-19 national emergency delays or prevents compliance with the requirements described below, FMCSA offers the following guidance and recommendations:
- Random testing. Normally, employers must ensure that the dates for administering random alcohol and controlled substances tests are spread throughout the year, and DOT guidance recommends that testing take place quarterly. But if disruptions caused by COVID-19 national emergency prevent random selections and tests sufficient to meet the random-testing rate for a given testing period in order to achieve the required 50 percent rate for drug testing and 10 percent for alcohol testing, employers can make up the tests by the end of the year. Employers “should document in writing” the reasons the tests were not completed and “any actions taken to locate … alternative collection site[s] or other testing resources.”
- Pre-employment testing. Employers must conduct pre-employment controlled substances tests and receive negative results before permitting prospective employees to perform DOT safety sensitive functions.
- Post-accident testing. Employers must test drivers for alcohol and controlled substances “as soon as practicable following an accident.” However, if an alcohol test cannot be administered within 8 hours following the accident, or a controlled substance test within 32 hours following the accident, “[employers] must document in writing the specific reasons why the test could not be conducted.”
- Reasonable suspicion testing. Employers “should document in writing the specific reasons why the test could not be conducted as required” and provide details of efforts made to conduct the test, such as attempts to locate alternative collection sites. This documentation is required “in addition to the documentation of the observations leading to a test.”
- Return-to-duty (RTD) testing. An employer must not allow a driver to perform any safety-sensitive functions until an RTD test has been conducted and a negative test result has been received.
- Follow-up testing. If follow-up testing cannot be completed, the employer should document in writing the specific reasons why the testing could not be conducted in compliance with the follow-up testing plan and any efforts made to comply, such as trying to locate an alternate collection site. Employers should conduct the test as soon as possible thereafter.
It bears repeating that the FMCSA guidance applies only when COVID-19 has interfered with testing—these are not blanket exceptions to FMCSA’s drug and alcohol testing requirements. This guidance will remain in effect until June 30, 2020.
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.
