DOT Issues Update on Drug and Alcohol Testing

The U.S. Department of Transportation has issued guidance on compliance with drug and alcohol testing regulations for employers, employees, and service agents during the COVID-19 emergency.

The guidance states:

• DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as 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. 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 you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed.  If training or testing can be conducted later (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), you are to do so in accordance with applicable modal regulations.  Links to the modal regulations and their respective web pages can be found at  https://www.transportation.gov/odapc/agencies
• If employers are unable to conduct DOT drug and alcohol 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

• If an employee expresses 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.  But 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).  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.

FMCSA Issues Notice to States on CDL Licensing During COVID-19 Emergency

The Federal Motor Carrier Safety Administration has issued a notice to State Driver Licensing Agencies on the States’ compliance with the federal commercial driver licensing program.  The notice says the States will not be considered to be in non-compliance with the federal CDL program, and will not jeopardize the available for federal highway funds, if the State extends a Commercial learner’s permit (CLP) or Commercial Driver’s License (CDL) that would otherwise expire during the COVID-19 emergency as long as the State returns to its normal practices when the emergency is over.

The notice also clarifies that a State may renew a CLP/CDL online, and further provides that a State will not jeopardize federal funds if it does not change the medical certification status to “not certified” or downgrade a CDL or CLP driver whose Medical Examiner’s Certificate has expired during the national emergency related to COVID-19.

This notice leaves these actions up to the State Driver Licensing Agency, however, so employers and drivers must check with their States to determine how their policies implement this federal guidance.

This GAWDA DOT Safety Alert is issued by GAWDA Consultants Rick Schweitzer, Esq. and Mike Dodd. Please contact Rick or Mike for further information.