Executive Summary: On June 5, 2020, the Federal Motor Carrier Safety Administration (FMCSA) granted a waiver (effective from June 5, 2020 to September 30, 2020) from certain pre-employment testing equirements applicable to employers of commercial motor vehicle drivers. (https://www.fmcsa.dot.gov/emergency/three-month-waiver-response-economic-consequences-covid-19-public-health-emergency). During the time period in which the waiver is in place, employers may forego pre-employment testing for drivers who have participated in a controlled substance testing program within 90 days before the hire or rehire date.
Current federal regulations require that, prior to a driver covered by the drug and alcohol testing requirements in 49 CFR Part 382 performing safety-sensitive functions for an employer for the first time or after returning from a period of unemployment where the driver was not subject to a random controlled substance test (including furloughs and layoffs), the driver must undergo pre-employment testing for controlled substances, and the employer must receive a verified negative controlled substances test result from a medical review officer or a consortium/third party administrator.
Current federal regulations, however, permit employers to forego the pre-employment controlled substances test if the driver has participated in a controlled substance test program within the last 30 days and has either:
been tested for controlled substances within the prior six months; or
participated in a random controlled substance testing program within the prior 12 months.
Additionally, the employer must ensure that no known, prior employer of the driver has records of the driver’s violation of 49 CFR Part 382 or another Department of Transportation agency controlled substance rule within the prior six months.
The June 5 waiver extends the 30 day period to 90 days so that employers may forego pre-employment controlled substance tests for drivers who have participated in a qualifying controlled substance testing program within 90 days of hire or rehire. The purpose of this waiver is to mitigate the economic repercussions and logistical issues of complying with 49 CFR 382.301 as a result of the large influx of drivers that are expected to return to work from the various COVID-19 pandemic stay-at-home orders across the country.
Even if an employer verifies the above requirements are met and qualifies for this waiver, it should still be mindful of other applicable requirements. For example, employers should still conduct a pre-employment query of the Drug and Alcohol Clearinghouse for returning drivers, which became operational on January 6, 2020. The Clearinghouse allows employers to identify drivers who have committed an FMCSA controlled substance and alcohol testing program violation that renders them ineligible to perform safety-sensitive functions until they complete the required return-to-duty process. Employers should prohibit drivers from performing any safety-sensitive function if the Clearinghouse screening indicates that the driver is prohibited from doing so. More information on the Clearinghouse is available at https://clearinghouse.fmcsa.dot.gov/.
Employers are also required to continue completing background investigations on returning or prospective drivers’ controlled substance and alcohol testing history with all DOT-regulated employers that employed the driver within the previous three years.
Finally, employers should also be mindful of any additional requirements under state and local laws, including those regarding drug testing and the COVID-19 pandemic, which may vary significantly depending on the specific circumstances.
The FMCSA’s temporary extension of the pre-employment testing waiver from 30 to 90 days should assist employers in the transportation industry as America reopens in the wake of the COVID-19 pandemic and drivers return to work. If you have any questions regarding the issues addressed in this Alert, please contact the authors, Karen Milner, partner in our St. Louis office at kmilner@fordharrison.com. Of course, you may also contact the FordHarrison attorney with whom you usually work.
FordHarrison is closely monitoring COVID-19 developments including associated federal and state legislation and reopening guidance. The firm has implemented continuity plans to allow our lawyers and staff to work remotely in a technologically secure environment when necessary, ensuring continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on COVID-19, the new American workplace, workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce or CARES Act attorney, please contact clientservice@fordharrison.com.
