Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 23, 2020, the U.S. Department of Transportation issued Guidance on compliance with DOT drug/alcohol testing regulations for employers concerned about their ability to meet regulatory testing requirements during the COVID-19 pandemic. Although the Guidance acknowledges the unprecedented public health emergency facing the United States, and the vital role the transportation industry is playing in responding to COVID-19 effects, there is little of the kind of enforcement flexibility most motor carriers had hoped to see. A summary of the agency’s interpretation of the status quo requirements follows.
Strict Compliance Required Even if Employees Express Concern. Providing “clarity regarding existing requirements,” the Guidance advises that compliance with all testing and training requirements must continue, despite DOT’s awareness that employees have expressed concern about potential public health risks associated with the collection and testing process “in the current environment” and the agency’s request that employers be “sensitive” to those concerns. While noting program resources such as collection sites, BATs, MROs and SAPs may be unavailable, the agency nevertheless stands firm that DOT drug/alcohol-testing-regulated employers must “make a reasonable effort to locate the necessary resources.” Back-up plans and regular testing vendor communications are recommended.
Exclusion from Safety-Sensitive Work if Testing Cannot Be Conducted. If despite efforts to locate testing resources employers cannot conduct required DOT drug/alcohol testing, DOT mandates still 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 (or as the Guidance advises, FAA employers cannot hire the individual in anticipation of FAA safety-sensitive work).1
Mobile Specimen Collections May Be “Best Practice,” On-Site/Instant Tests Still Prohibited. The Guidance suggests that, as a “best practice,” employers consider mobile specimen collections if fixed-site collection facilities are unavailable. However, the Guidance reminds employers that on-site/instant tests are still prohibited.
Document if Unable to Comply. Covered employers unable to conduct DOT drug/alcohol testing or training due to, e.g., COVID-19 supply shortages, closures, and government-mandated quarantines must document the reasons for their failure to comply. Employers must “document why a test was not completed.”
Limited Training/Testing Delay. The Guidance observes that existing regulations allow training or testing delays in some cases. For example, supervisory training mandated by the regulations may be completed at the next available opportunity, random testing notices may be delivered later in the employer’s ordinary selection period, and follow-up testing within SAP directives but at a later time within a month, are all permitted under the existing regulations of the various DOT modalities, as well as DOT’s Office of Drug and Alcohol Compliance regulations.
Verify Collection Site Precautions. Asking employers to be “sensitive” to employee health concerns, DOT further asks that employers verify with the specimen collection sites that they have taken the necessary precautions to minimize the risk of exposure to COVID-19. Precautions might range from the obvious, such as hand-washing before and after specimen collection (already required by the regulations), to obtaining collection appointments for pre-hire and other tests, and should include social distancing measures in the collection process.
DOT-Regulated Employees: Contact Medical Professionals, Alert and Express Concerns to Employers. The Guidance directs DOT-regulated employees to contact medical providers and alert their employers if they have COVID-19 symptoms or COVID-19-related testing concerns.
1 14 CFR § 120.109(1) and (2).