US DOT COVID-19 GUIDANCE FOR DRUG AND ALCOHOL TESTING REQUIREMENTS |
PMAA Contact: Mark S. Morgan Regulatory Counsel:
mmorgan@pmaa.org
The U.S. DOT has issued
guidance for employers who may have difficulty conducting
mandated federal drug and alcohol testing due the recent
COVID-19 outbreak. Barriers to testing include
unavailability of collection sites, breath alcohol
technicians (BAT), medical review officers (MRO) and
substance abuse professionals (SAP) caused by the COVID-19
outbreak. The guidance provides employers with testing
flexibility by recognizing COVID-19 as a possible barrier
to testing. In some cases, missed tests must take place at
a later date according to the guidance.
WARNING! This is
not a blanket waiver of U.S. DOT drug and alcohol testing
requirements. Employers must follow existing regulations
requiring a detailed written explanation on why testing
could not be conducted or delayed until a later date and
the reasonable efforts taken to find alternative testing
venues. Moreover, in no case can an employee, including
drivers, conduct safety sensitive functions without first
obtaining a negative pre-employment test for drugs and a
negative return-to-duty test for drug and alcohol.
The following guidance explains the steps
employers must take when they are unable to test, must
delay testing or a driver does not want to test due to
elevated public health risks. The DOT requires employers
having difficulty conducting drug and alcohol testing due
to COVID-19 to take the following steps:
Drug and Alcohol
Testing Difficulties Due to COVID-19 Closures
Inability to
Conduct Tests
-
If employers are unable
to conduct DOT drug or alcohol testing and training
(supervisor reasonable suspicion training) due to
COVID-19-related supply shortages, facility closures,
State or local quarantine requirements, or other
impediments, then they must continue to comply with
existing DOT regulatory requirements to
document why a test or training was not completed or
was delayed. The documentation must show
that reasonable efforts were taken to find alternative
testing facilities. The DOT is strongly recommending
employers seek out mobile drug and alcohol testing and
training services as a viable option.
Delayed Tests
-
If employers are able
to conduct testing or training (e.g., supervisor
reasonable suspicion training at the next available
opportunity; random testing later in the selection
period; follow-up testing later in the month) at a
later date, it must be conducted according to existing
DOT regulatory requirements.
Driver Refusal
Based on Public Health Risks
-
Some drivers have
expressed concern about potential public health risks
associated with the collection and testing process in
the current environment. Employers should review
applicable DOT regulations for testing to
determine whether flexibilities allow for collection
and testing at a later date. The
employer is responsible for evaluating the
circumstances of the employee’s refusal to test and
determine whether the employee’s actions should be
reported as such. However, given the public health
risks posed by COVID-19, the DOT asks employers to be
sensitive to employees who indicate they are not
comfortable or are afraid to go to clinics or
collection sites. DOT also 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.
Employer
Responsibilities for Lack of Testing and Delayed Testing
-
Random Testing
– If, due to disruptions caused by the
COVID-19 national emergency, employers are unable to
perform random selections and tests to meet the random
testing rate for a given testing period to achieve the
required 50% rate for drug testing, and 10% for
alcohol testing, the tests must be made up
by the end of the year. Employers must
document in writing according to existing DOT
regulatory requirements why tests on drivers randomly
selected could not be conducted, and any actions taken
to locate an alternative collection site or other
testing resources.
-
Pre-Employment
Testing – Employers unable to conduct
pre-employment drug tests, cannot allow a
prospective employee to perform DOT safety sensitive
functions (drive, load, unload, produce
shipping papers, etc.) until a negative pre-employment
test result is received.
-
Post-Accident
Testing – Employers unable to administer an
alcohol test within 8 hours following an accident, or
a controlled substance test within 32 hours following
the accident, due to disruptions caused by the
COVID-19 national emergency, must state in writing the
specific reasons why the tests could not be conducted.
The writing must be in accordance with existing DOT
regulatory requirements.
-
Reasonable
Suspicion testing – Employers must document
in writing the specific reasons why a reasonable
suspicion test could not be conducted as required. The
written explanation must document efforts
made to mitigate the effect of the disruption in
testing, such as trying to locate an alternative
collection site. This documentation should be provided
in addition to the documentation of the observations
leading to a test, according to DOT requirements.
Employers must follow current regulations addressing
situations in which reasonable suspicion testing is
not conducted, as set forth in
49 CFR 382.307(e)(1),(2).
-
Return-to-duty
(RTD) testing – Employers must
not
allow drivers to perform any safety-sensitive
functions, until an RTD test is conducted and there is
a negative result.
-
Follow-up
testing - If follow-up testing cannot be
completed, employers must document in writing the
specific reasons why the testing could not be
conducted. Employers must include any efforts you made
to mitigate the effect of the disruption in testing,
such as trying to locate an alternative collection
site. Employers must conduct the test as soon as
practicable.
DOT Drug and
Alcohol Testing Guidance
-
There are two drug and
alcohol COVID-19 guidance documents. The first was
issued by the FMCSA and targets interstate and
intrastate motor carriers. The second guidance was
issued by the U.S. DOT and target all transportation
modes subject to DOT drug and alcohol testing. While
the FMCSA and U.S. DOT guidance are largely identical
in terms of policy, the DOT guidance contains more
in-depth explanations.
Got Questions?
Contact Mark S. Morgan, PMAA Regulatory Counsel at
mmorgan@pmaa.org or at (202)
364-6767
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