March 23, 2020 • by Deborah Lockridge
The Department of Transportation has issued guidance on drug and alcohol testing for federally regulated transportation workers, as fleets and commercial drivers may face challenges complying with regulations due to the COVID-19 pandemic.
“The guidance does not provide much leeway or relief beyond what’s already in the regulations,” said Dave Osiecki, president of Scopelitis Transportation Consulting, but it does point out parts of the regulations that can help carriers out during this time. “It’s helpful for the regulated industries to hear from DOT on this issue, especially since it reminds them of the need to document the challenges to getting a test done.”
Importantly, he added, DOT is not waiving a motor carrier’s obligation to conduct a pre-employment drug test before putting that driver behind the wheel.
In its guidance, issued March 23, the DOT’s Office of Drug and Alcohol Policy & Compliance said the DOT recognizes that compliance with drug and alcohol testing regulations may not be possible in certain areas due to the unavailability of program resources, such as collection sites, breath-alcohol technicians, medical review officers and substance abuse professionals.
“You should make a reasonable effort to locate the necessary resources,” it said, and advised employers to consider mobile collection services for testing if fixed-site collection facilities are not available.
If DOT drug or alcohol training or testing aren’t possible due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, employers are instructed to comply with existing applicable DOT requirements to document why a test was not completed.
If training or testing can be conducted later, for instance, doing random testing later in the selection period or follow-up testing later in the month, the agency instructs fleets to do so in accordance with applicable regulations. Scopelitis Transportation Consulting points out that 382.305(k)(2) says only that conducting of random testing must be spread evenly throughout the year; and that 382.305(i)(3) says that “each driver selected for a random alcohol or controlled substance testing shall be tested during the selection period.”
DOT emphasized that if employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying 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.
Some truck drivers have expressed concern about potential public health risks associated with the collection and testing process in the current environment. DOT advises employers to review the requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
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 as per 49 CFR § 40.355(i), the agency noted.
“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. 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 recommended employers 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 DOT drug and alcohol testing program.
Photo: Quest Diagnostics