FMCSA Announces Drug and Alcohol Testing Discretion

Random drug testing

The coronavirus outbreak has caused disruptions to businesses, jobs, and the daily lives of individuals across America. As a result of uncertainty caused by the pandemic, there have been numerous questions regarding government mandates and potential exceptions associated with drug and alcohol testing requirement. The purpose of this blog is specifically focused on Federal Motor Carrier Safety Administration (FMCSA) and the current state of testing mandates. Therefore, employers must understand that the Federal Motor Carrier Safety Administration (FMCSA) requirements have NOT been suspended. The FMCSA emphasized that employers that remain capable of meeting the random testing requirements outlined in Part 382 must continue to do so. Per the FMCSA, “This Notice is not intended, and should not be perceived, as suspending the current random testing requirements.”

To continue to protect their company and employers during this unprecedented time, all regulated employers are STILL required to continue randomly selecting 50% of their drivers for drug testing and 10% for alcohol testing in 2020. The FMCSA echoes the Office of Drug & Alcohol Policy & Compliance (ODAPC’s) guidance from early March, stating that employers must make every effort to get random testing done.

The FMCSA, along with many other Department of Transportation (DOT) agencies, have made changes to accommodate unique and specific challenges that come with running a business during a pandemic. On July 6, 2020, the FMCSA issued a memo about the impact of the COVID-19 pandemic on motor carriers that are subject to drug and alcohol testing under 49 CFR Part 382 (Part 382). The FMCSA recognizes that due to the pandemic, motor carriers may be unable to comply with certain requirements outlined in Part 382, namely, the mandated annual random testing rates. However, FMCSA emphasized that employers that remain capable of meeting the random testing requirements outlined in Part 382 must continue to do so.

What If I Can’t Comply?

However, if, due to COVID-19, the test is unable to be completed, the motor carrier is required to maintain written documentation as to why they were unable to comply with the requirement. Employers who are unable to comply will need to complete the following steps:

  • Document testing facility closures;
  • Document restricted use of testing facilities;
  • Document if testing personnel are unavailable; and
  • Document any and all actions taken by employers to identify alternative testing sites or other testing resources.

Why It’s Vital for Employers to Keep Testing

As the COVID-19 pandemic continues to cause changes across various industries nationwide, it’s more important now than ever before to remain up-to-date with changes in regulations and rules to ensure safety and remain compliant. Additionally, substance abuse rates have been proven to increase in times of a national crisis. COVID-19 has already led to an increase in drug test positivity rates with a spike specifically in April and May 2020. Employers need to remain vigilant and enforce drug testing standards to prevent workplace accidents and risks, as well as fines, fees, and litigation.

Failure to accurately document these items may result in failing an FMCSA audit!

Why Was the Notice Issued and How Long Does It Apply?

Regarding the purpose of the notice, the FMCSA stated:

“[FMCSA] issues this Notice to assure employers unable to fully comply with the requirements identified above that we will provide reasonable enforcement flexibility during this unprecedented pandemic, while also meeting FMCSA’s core safety mission. This Notice is not intended, and should not be perceived, as suspending the current random testing requirements.”

The notice and “reasonable enforcement flexibility” currently only apply to random testing during the 2020 calendar year. FMCSA may “exercise enforcement discretion” in 2021, but a decision has not been made yet. FMCSA covered companies are subject to DOT audits at the DOT’s discretion. Failure to provide documentation regarding why testing was not conducted could lead to fines and/or disciplinary actions.

How Can DISA Help?

As your trusted third-party administrator (TPA), DISA Global Solutions can assist you with maintaining compliance during these unprecedented times with compliance training, policy creation, auditing, and review. As industries continue to adapt, policies, regulations, and rules are everchanging, which making difficult to follow. By enlisting one of our professionals, DISA will ensure that you remain up-to-date on any changes that could affect your business.

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About DISA Global Solutions

Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.

DISA Global Solutions aims to provide accurate and informative content for educational purposes only and does not constitute legal advice. The reader retains full responsibility for the use of the information contained herein. Always consult with a professional or legal expert.