COVID-19 leads to changes in drug testing rules that give employers more flexibility. David Sparkman APR 02, 2020
Because of the Coronavirus epidemic, the U.S. Department of Transportation (DOT) has made changes in its drug and alcohol testing regulations regarding employees in safety-sensitive positions, including interstate truck and bus drivers.
On March 23, DOT issued a guidance saying, “The nation’s transportation industries, which are not immune to the impacts and disruptions resulting from the spread of COVID-19 in the U.S., are playing a vital role in mitigating the effects of COVID-19. DOT is committed to maintaining public safety while providing maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.”
The department’s guidance states that while DOT-regulated employers must continue to comply with training and testing requirements, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources. These may include access to collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP).
“You should make a reasonable effort to locate the necessary resources,” DOT says. “As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available.”
If an employer is unable to conduct training or testing due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirement, or other impediments, it must continue to comply with applicable agency requirements to document why a test was not completed.
If training or testing can be conducted later (for example, supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations.
If employers are unable to conduct testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions. In the case of the Federal Aviation Administration (FAA), the individual cannot be hired.
DOT said it is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment. Employers should review the applicable DOT agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
DOT reminds employers that it is their 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 under the regulations.
“However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites,” the guidance says. “DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.”
DOT also urges employers to revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, 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.
Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support their drug and alcohol testing program.
Drug testing service agents—test result collection sites, BAT, laboratory, MRO, or SAP—should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with state or local mandates related to COVID-19.
“Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from state and local officials, and guidance from the Centers for Disease Control and Prevention (CDC),” DOT recommends.
Truck and Bus Drivers
In accordance with these guidelines, DOT’s Federal Motor Carrier Safety Administration (FMCSA) has made changes to its regulations applying to drug and alcohol testing for commercial drivers that are scheduled to remain in place until June 30.
FMCSA said it is aware that “disruptions caused by the COVID-19 national emergency are interfering with, and in some cases, may be preventing, employer and driver compliance with current drug and alcohol testing requirements.”
These are the actions recommended by the agency for FMCSA-regulated employers who employ truck and bus drivers in interstate commerce and are unable to conduct certain kinds of testing because of the demand for transportation of essential supplies:
Random Testing. Employers are required by federal regulations to ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. DOT guidance further recommends that the employer perform random selections and tests at least quarterly.
If, due to disruptions caused by the COVID-19 national emergency, you are unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing, and 10% for alcohol testing, you should make up the tests by the end of the year.
In addition, FMCSA says employers should document in writing the specific reasons why you were unable to conduct tests on drivers randomly selected, and any actions taken to locate an alternative collection site or other testing resources.
Pre-Employment Testing. If an employer is unable to conduct a pre-employment controlled substances test, in accordance with federal regulations, it cannot allow a prospective employee to perform DOT safety-sensitive functions until having received a negative pre-employment test result, unless the exception in the regulations for trip lease drivers applies.
A trip-lease driver is generally a driver employed by one carrier, but who is temporarily leased to another carrier for one or more trips generally for a time period less than 30 days. This also applies to volunteer organizations that use loaned drivers.
Post-Accident Testing. Employers are required to test each driver for alcohol and controlled substances as soon as practicable following an accident. However, if the employer is unable to administer an alcohol test within eight hours after an accident or a controlled substance test within 32 hours following the accident, due to disruptions caused by the national emergency, the specific reasons why the test could not be conducted must be documented in writing.
Reasonable Suspicion Testing. The employer should document in writing the specific reasons why the test could not be conducted as required. Make sure to include any efforts made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. FMCSA says this documentation should be provided in addition to documentation of the observations leading to a test, as required by agency regulations.
Follow current regulations addressing situations in which reasonable suspicion testing is not conducted, set forth in FMCSA’s guidance in regard to this part of the regulations.
Return-to-Duty (RTD) Testing. In accordance with current regulations, an employer must not allow a driver to perform any safety-sensitive functions until the RTD test is conducted and there is a negative result. Nothing is changed in this regard.
Follow-Up Testing. If testing cannot be completed, the employer should document in writing the specific reasons why the testing could not be conducted in accordance with the follow-up testing plan; you should include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. You should conduct the test as soon as practicable.