DOT Issues Guidance Regarding FMCSA Drug Testing During COVID-19 Pandemic

By Caitlin M. Andersen - Peters, Revnew, Kappenman & Anderson, P.A.

April 24, 2020

While the Federal Motor Carrier Safety Act (FMCSA) rules and regulations regarding drug testing of DOT drivers are all still applicable, the DOT recognizes that strict compliance may not be possible during the current COVID-19 pandemic. For example, access to collection sites, MROs, SAPs, and other program resources may be limited due to the pandemic and state-issued stay-at-home or shelter-in-place orders.  As a best practice, employers subject to the FMCSA should make reasonable efforts to locate the necessary resources to continue testing as normal. In the event testing as normal is not possible, employers should document the reason(s) the test cannot be completed, and any steps the employer took to locate an alternative testing site or other testing resources. Specific recommendations regarding the inability to test in each type of testing scenario are outlined below.
 
Pre-Employment Testing: If an employer is unable to conduct a pre-employment test, the employer cannot allow a prospective employee to perform DOT safety sensitive functions until the employer receives a negative pre-employment test result unless the exception outlined in the regulation applies.  The regulations allow an employer not to administer a pre-employment controlled substances test if:

•    The driver has participated in a controlled substances testing program that meets the FMCSA requirements within the previous 30 days;
•    While participating in that program, either:
   o    Was tested for controlled substances within the past six (6) months (from the date of application with the employer), or
   o    Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
•    The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of this part or the controlled substances use rule of another DOT agency within the previous six (6) months.

Post-Accident Testing: Employers are still required to test each driver for alcohol and controlled substances as soon as practicable following an accident. However, if an employer is unable to administer an alcohol test within eight (8) hours following the accident, or a controlled substance test within thirty-two (32) hours following the accident, due to disruptions caused by the COVID-19 pandemic, the employer must document why they couldn’t administer the test.  The documentation must be in writing, and list the specific reasons why the test could not be conducted.
 
Random Testing:  If, due to disruptions caused by the COVID-19 pandemic, employers are unable to perform random selections and tests sufficient to meet the random testing rate in the selection period (50% rate for drug testing and 10% for alcohol testing), the employer should make up the tests by the end of the year. Employers should document, in writing, the specific reasons why they were unable to conduct tests on drivers randomly selected during the selection period.

Reasonable Suspicion Testing: If an employer is unable to conduct a reasonable suspicion test, they should document, in writing, the specific reasons why the test could not be conducted as required. This documentation is in addition to the documentation of the observations leading to a test, as required under the regulations.
 
Employers must also follow current regulations addressing situations in which reasonable suspicion testing is not conducted.  If a reasonable suspicion alcohol test is not administered within two (2) hours following the determination that reasonable suspicion exists, the employer must document the reasons the alcohol test was not promptly administered. If a reasonable suspicion alcohol test is not administered within eight (8) hours following the determination that reasonable suspicion exists, the employer shall cease attempts to administer an alcohol test and must document the reasons for not administering the test.  An employer must not permit a driver under reasonable suspicion to perform, or continue to perform, safety-sensitive functions, until an alcohol test is administered, or twenty-four (24) hours have elapsed following the reasonable suspicion determination.
 
Return-to-duty Testing: Employers can’t allow a driver to perform any safety-sensitive functions until the return-to-duty test is conducted and there is a negative result.
 
Follow-up Testing:  If testing cannot be completed, employers should document, in writing, the specific reasons why the testing could not be conducted as in accordance with the follow-up testing plan. Employers should then conduct the test as soon as practicable.
 
COVID-19 Letters from OSHA
 
Last week, OSHA released its Interim Enforcement Response Plan for Coronavirus Disease 2019, which provides instructions and guidance to OSHA Area Offices for handling COVID-19-related complaints, referrals, and severe illness reports.  OSHA specifically noted that employers with high and very high exposure risk jobs, such as hospitals, emergency medical centers, and emergency response facilities, will typically be the focus of any inspection activities in response to COVID-19-related complaints and employer-reported illnesses.  However, employers with medium and lower risk jobs may still hear from OSHA regarding COVID-19-related complaints
 
As a reminder, high and very high exposure risk jobs include, but are not limited to, hospitals treating COVID-19 patients, nursing homes, settings that handle human remains, biomedical laboratories, and medical transport. Medium exposure risk jobs include jobs that may have contact with the public (e.g., in schools, high-population-density work environments, and some high-volume retail settings).  Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19, nor frequent close contact (within 6 feet) of the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
 
OSHA is prioritizing enforcement resources.  Therefore, when there is an allegation of a hazard or suspected violation at an employer with medium or lower risk jobs, OSHA may not conduct an on-site investigation.  However, OSHA may send a letter requesting the employer conduct their own investigation, make and necessary corrections or modifications, and inform OSHA, in writing, of the results of the investigation.  OSHA requests that the investigation report include items such as: “measurements or monitoring results; photographs/video that you believe would be helpful; and a description of any corrective action you have taken or are in the process of taking, including documentation of the corrected condition.”
 
In general, a letter requesting the above information is not a citation or a notification of proposed penalty. However, information learned from any investigation report could lead to additional investigations and potential citations or penalties.  Employers who receive such a letter should contact us as soon as possible for help in timely responding. Failure to timely respond to the letter may lead to an on-site investigation.