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U.S. DOT Issues Guidance Regarding Drug And Alcohol Testing During COVID-19 Crisis

The U.S. Department of Transportation Office of Drug and Alcohol Policy Compliance issued guidance on March 23, 2020 to provide clarity with respect to existing requirements for DOT-mandated drug and alcohol testing during the COVID-19 crisis. DOT agencies include the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Administration. In short, DOT drug and alcohol testing requirements remain in effect.  The ODAPC guidance states, in pertinent part:

For DOT-Regulated Employers:

  • As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. [How to conduct testing is found in 49 CFR Part 40 (see https://www.transportation.gov/odapc/part40), while who gets tested and when (along with drug and alcohol-related training requirements) can be found in the applicable DOT modal regulations (see https://www.transportation.gov/odapc/agencies)].

  • However, 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. [As a reminder, point-of-collection testing or instant tests are not authorized in DOT drug testing (see https://www.transportation.gov/odapc/part40/40-210)].

  • 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, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).

  • Additionally, DOT is aware that some employees have expressed 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.

  • As a reminder, 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.

  • Employers should 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 your DOT drug and alcohol testing program.

For DOT-Regulated Employees:

  • If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.

  • If you have COVID-19-related concerns about testing, you should discuss them with your employer.

  • As a reminder, 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).

For Service Agents:

  • As a collector, BAT, laboratory, MRO, or SAP, you should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with State or local mandates related to COVID-19.  Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from State and local officials, and guidance from the Centers for Disease Control and Prevention (CDC).

You are encouraged to continue to monitor guidance from public health officials and to refer to official government channels for additional information related to COVID-19. The CDC provides helpful guidance and insight from medical professionals who closely monitor the virus. The CDC latest updates (https://www.cdc.gov/coronavirus/2019-ncov/index.html). Also for reference, the Occupational Safety and Health Administration has released guidance on preparing workplaces for COVID-19 (https://www.osha.gov/Publications/OSHA3990.pdf).

Jackson Lewis P.C. © 2020

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About this Author

Kathryn J. Russo Disability Lawsuits Attorney Jackson Lewis Law firm Alcohol Testing Lawyer
Principal

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S....

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