In late March, the Department of Transportation (DOT) posted guidance for conducting drug and alcohol testing during the Covid-19 pandemic. The regulation reflects DOT’s responsibility to maintaining public safety while providing maximum flexibility to allow transportation industries to” conduct their operations safely and efficiently during this period of national emergency.”
Per the guidance:
- DOT-regulated employers are still obligated to comply with applicable DOT training and testing requirements. In recognizing 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), the guidance advises regulated employers to “make a reasonable effort to locate the necessary resources.” DOT states that 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. DOT, however, reminds employers that “point-of-collection testing or instant tests are not authorized in DOT drug testing.”
- If a DOT-regulated employer is 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, it must continue to comply with existing applicable DOT requirements to document why the test was not completed. If training or testing can be conducted later (supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), employers must do so in accordance with applicable modal regulations.
- If an employer is 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.
- Recognizing the concern about potential public health risks associated with the collection and testing process in the current environment, the guidance advises employers to review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
- Employers are reminded that it is their 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 C.F.R. § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, 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. It 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.
- Employers are advised to revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. These plans should include the availability of collectors and collection sites and BAT, and an alternate/back-up MRO, as these may have changed as a result of the national emergency. DOT also advises employers to have regular communications with service agents regarding the service agent’s availability and capability to support the employer’s DOT drug and alcohol testing program.
Since many employers with drug and alcohol testing program are finding it difficult to administer their programs during this pandemic, these guidelines should provide some clarity in this unprecedented time