By Jennifer L. Mora

On Monday, March 23, 2020, the United States Department of Transportation issued guidance for DOT-regulated employers, employees, and their service agents that might be facing challenges in meeting the department’s drug and alcohol testing requirements due to the pandemic. The guidance, which can be found here, serves to “provid[e] maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.”

According to the guidance:

  • DOT-regulated employers remain obligated to comply with applicable DOT training and testing requirements. However, 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 (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), employers must do so in accordance with applicable modal regulations.
  • If an employers 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, or in the case of the Federal Aviation Administration (FAA), the employer cannot hire the individual.
  • 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.
  • The guidance reminds employers 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.
  • Finally, the guidance advises employers to 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 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.

Many employers with drug and alcohol testing programs, whether regulated or not, are finding it difficult to administer their programs in light of the pandemic. Employers that are not subject to DOT or any other federal or state-mandated drug testing requirements still must consider any applicable state and local drug and alcohol testing laws before making any modifications to their drug and alcohol testing programs. Employers that need to revisit their current testing programs during this uncertain time should consider working with counsel experienced in drug and alcohol testing laws and policies. We will continue to monitor these issues as they develop at the federal, state, and local level.