Rick Malchow - Industry Business Advisor, J.J. Keller & Associates, Inc.
March 28 , 2020
Motor carriers who are subject to DOT (Department of Transportation) drug and alcohol testing under FMCSA’s (Federal Motor Carriers Safety Administration) Part 382 were given guidance from the agency, allowing for some flexibility until May 30, 2020, due to the COVID-19 pandemic.
Previously, DOT's Office of Drug and Alcohol Policy & Compliance (ODAPC) provided information about the impact of the national crisis on DOT testing requirements for employers, employees, and service agents for all modes. The COVID-19 national emergency has created disruptions that are interfering with and often preventing compliance with the DOT drug and alcohol testing requirements.
The FMCSA provided guidance that is in addition to ODAPC's notice for testing operators of commercial motor vehicles (CMVs) requiring commercial drivers' licenses (CDLs). The guidance is in effect until May 30, 2020, which is 90 days from the President's Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.
The guidance varies by the required test.
The FMCSA clarified its regulations (and previous guidance) by stating that random drug & alcohol testing must be administered evenly throughout the calendar year, and carriers are advised to make random selections at least quarterly.
Employers who are experiencing disruptions as a result of COVID-19 and are unable to complete their random elections and tests should document in writing the specific reasons why they were unable to conduct tests on drivers who were randomly selected, such as:
Document any actions you took to locate an alternative collection site or other testing resources. You don’t have to explain the leave of absence (LOA), just note the dates.
With Q1 behind us, document why specific tests were not conducted, and compensate for the missed tests by selecting at a higher rate during the rest of the year. You are still expected to meet your 50% and 10% testing rates by the end of the year. Make up the tests when you are able to do so. If you still have time left in the testing period, hold off on the notification and send the driver later. You have until the end of the cycle to send the drivers for testing.
The agency has not offered any exemption to the pre-employment testing requirements during the national emergency. Before a driver can perform a safety-sensitive function, the motor carrier must have a verified negative pre-employment drug screen result, unless the criteria for the pre-employment exception in §382.301(b) are met and documented.
If circumstances warrant DOT post-accident testing following a CMV crash, motor carriers must make all attempts to test the driver in accordance with §382.303. That would be a fatality, or your CDL driver issued a traffic citation, AND either one of the vehicles incurred disabling damage or someone involved requires immediate medical treatment away from the scene.
If disruptions associated with the COVID-19 national emergency prevent the motor carrier from carrying out the alcohol test within eight hours following the accident, or drug testing within 32 hours, it must document the specific reasons. This guidance aligns with current regulatory requirements in §382.303(d).
If a motor carrier is unable to carry out a reasonable suspicion test due to the national emergency, they must document in writing the specific reasons why the test could not be conducted as required. The motor carrier's explanation should include any efforts it made to mitigate the disruption, such as trying to locate an alternative collection site.
In the event of an investigation, the documented circumstances would be provided to enforcement, along with the trained supervisor's observations leading to the request of the test. The need for an explanation of why a reasonable suspicion test was not conducted is nothing new; it appears in §382.307(e)(1) and (2).
Like pre-employment testing, the FMCSA has not offered any exemption to the return-to-duty test requirements. Drivers who are subject to an evaluation, treatment, and negative return-to-duty test following a DOT violation under Part 382, must complete the required steps prior to performing a safety-sensitive function again. If you’re unable to schedule the test, the return-to-duty process is at a standstill.
A driver who is in the follow-up testing program is still to be tested, if possible. Follow-up testing is the number and duration of unannounced tests appearing in an SAP report for a driver who violated DOT testing rules. All attempts must be made to follow through with a driver's testing plan, including trying to find alternate testing sites. If you can’t perform the test, you document why: no available testing sites, the state has shut down, etc. Ensure that you resume once things get back to normal.
Once a driver is notified of testing and fails to go to the clinic, it is the employer's responsibility to evaluate the circumstances of the employee's refusal to test and determine whether or not the employee's actions should be considered a refusal. Drivers should be reminded of what constitutes a refusal to test (see §§40.191 and 40.261). A refusal to test, excluding pre-employment testing, includes:
Employers should be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. If testing at a later date is not an option, DOT suggests that employers contact the facility to verify that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
Talk with a compliance specialist today to learn how the J. J. Keller® Encompass® Platform can help you centralize, manage, and document your drug and alcohol compliance program.
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