Compliance Team Services

  • Compliance Tech Line
    • Available to clients with questions on any part of the Federal Motor Carrier Safety Regulations
      • Drug and Alcohol Testing
      • FMCSA Clearinghouse
      • Driver Qualification and Driver Qualification Files
      • Hours of Service
      • Vehicle Maintenance
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      • Haz/Mat
      • Data Qs
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Email compliance@ntatesting.com with your question or questions. An NTA Compliance Specialist will be in touch to consult with you with answers and guidance.

  • Quality Assurance Audits/Compliance Reviews
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    • Targeted and Full Compliance Reviews as requested
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  • New Hired Safety Director Training Program
    • A “refresher” course for newly hired Safety Directors
    • Ensures that newly hired safety directors are up to date
  • New Entrant Program
    • Assists the New Entrant with preparing for the FMCSA New Entrant Compliance
    • Includes preparation, upload of documents to FMCSA, and assistance with closeout
  • Hazardous Materials Training/Mock Audit
    • Program review performed by our Haz/Mat specialist
    • Detect deficiencies in the required areas of Parts 107, 171, 172, 177, 180, and 39
    • Provide the training and knowledge to get your program back on track
  • CVSA Roadside Inspection Training
    • On-site training available for drivers and/or mechanics
    • What to expect during the different levels of the Roadside Inspections
  • Customized Compliance Webinars
    • Customized presentation for your safety team or drivers
    • Convenient and effective
    • Topics of your choosing
    • Available topics
      • Drug and Alcohol Testing
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        • ELD & Short Haul
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        • In house and Out- Sourced
        • What you Need to Know
      • Driver Pre and Post Trip Inspections
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      • Haz/Mat Training
      • Data Qs
      • SMS Profile
        • Understanding the BASIC Categories
      • Pre-Employment Screening Program (PSP)
      • Roadside Inspections
        • Be Prepared

Contact compliance@ntatesting.com for more information on our compliance services today!

Best Practices for DOT Random Drug and Alcohol Testing

I. Introduction

What’s the best tool employers have for deterring drug and alcohol use in the workplace?
Random Testing. And, here are just a few of the reasons why:
·Saves lives and prevents injuries.
·Helps employers identify workers with substance abuse issues and facilitate their treatment.
·Allows employees to easily say no to illegal drug use. “No, thanks. They drug test at work.”
·Reduces employer liability.
·It is a fair way of testing.

The purpose of this publication is to help DOT covered employers and service agents in implementing and evaluating their own random testing programs. While DOT regulations serve as a mandatory minimum and do not prevent additional practices that serve the effectiveness of a testing program, don’t forget that some DOT covered employers may also have extra requirements from industry specific regulations.

What follows are best practices as identified by representatives from the Office of the Secretary’s Office of Drug and Alcohol Policy and Compliance (ODAPC), Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Pipeline and Hazardous Materials Safety Administration (PHMSA), and the United States Coast Guard (USCG).

While actually reading the regulations is very important, we hope this guide provides an additional tool for implementing an effective random testing program.

II. Random testing is required for safety-sensitive employees

Each DOT Agency and the USCG has regulations that require certain employers to
implement a random testing program.

IndustryRegulation
FAA – Aviation14 CFR Part 120, Subpart E, section 120.109(b)
14 CFR Part 120, Subpart F, section 120.217(c)
FMCSA – Motor Carrier49 CFR Part 382.305
FRA – Railroad49 CFR Part 219.601 and 219.607
FTA – Transit49 CFR Part 655.45
PHMSA – Pipelines49 CFR Part 199.105
USCG – Maritime49 CFR Title 46 Part 16.230
Note: FRA requires employers to submit their random plans for approval.

III. Establishing Random Testing Rates

The DOT Agency that regulates a specific transportation industry sets the random testing rate. The
Administrator of each DOT Agency is authorized to either increase or decrease the random drug and
alcohol testing rates. To establish an appropriate rate, Administrators use information reported
from the drug and alcohol Management Information System (MIS) form required by 49 CFR Part 40 and
other indicators. The rates are always effective starting January 1 of the calendar year. To check
for the current rate, visit ODAPC’s website at: http://www.dot.gov/ost/dapc/rates.html .

The random rates are annual minimum requirements. So if a DOT Agency requires a drug testing rate
of 50% and an alcohol testing rate of 10%, then an employer with 100 safety-sensitive employees
would have to ensure that 50 or more random drug tests and 10 or more random alcohol tests were
conducted during the calendar year.

IV. Setting-Up a Random Pool of Employees

A. Who gets tested?

Regardless of job titles like supervisor, volunteer, contractor, owner operators, etc., people are
chosen for testing based on their job function (known as a safety-sensitive function) not their
occupational title. Only DOT safety-sensitive employees may be part of the DOT random pool or
pools. Remember your DOT testing program must always be separate and distinct from your private
company or non-DOT testing program. That goes for your random testing pools, too. DOT and non-DOT
random testing pools must be completely separate.

Best Practice: Just prior to performing a random selection, refresh the pool to include all safety-
sensitive employees subject to DOT random testing, and exclude those not subject to DOT random
testing.

B. Can an employer regulated by different DOT agencies put its employees in the same random pools?

Yes. Employers and Consortia/Third Party Administrators (C/TPAs) subject to more than one DOT
Agency drug and alcohol testing rule may combine covered DOT safety-sensitive employees into a
single random pool. However, companies doing so must test at or above the highest minimum annual
random testing rates established by the DOT Agencies under whose jurisdiction the employees fall.
So, if you have FMCSA regulated- and FRA regulated-employees in the same pool, and FMCSA has a 50%
testing rate and FRA has a 25% rate, you must test the pool at the 50% minimum rate.

Note: PHMSA and USCG do not authorize random alcohol testing for employees in the pipeline and
maritime industries. So if employees perform only pipeline duties or maritime duties, they cannot
be in any DOT-regulated random alcohol testing pool.

Of course employers may decide to separate the pools by specific regulated transportation industry
– such as a separate pool for truck drivers and a separate pool for transit workers. Each pool must
be tested at the required DOT Agency rate for that industry.

C. Does an employee performing duties covered by more than one DOT Agency need to be in multiple pools?

An employee performing duties subject to more than one DOT Agency’s regulations must be randomly tested at the percentage rate established for the calendar year by the DOT Agency regulating more than 50 percent of the employee’s function. So if you have an employee who drives your trucks 75 percent of the time and operates your transit busses 25 percent of the time, that employee needs to be in the FMCSA-regulated pool.

Remember: All other testing (e.g., pre-employment, post-accident, reasonable suspicion) is regulated under the Agency that regulates the function the employee was performing at the time of the event. Wreck the transit bus; you are subject to post-accident testing under FTA regulations even if you are in the municipality’s FMCSA random pool.

D. How are employees selected for testing?

Everyone in the pool must have an equal chance of being selected and tested in each selection period. Selections can be by employee name, identifying title, or with FRA regulated testing, a group that is clearly delineated in company policy or random plan.

Be sure to use a scientifically valid method to select employees for testing, which may include: use of a random-number table, a computer-based random number generator that’s traceable to a specific employee (or with FRA, a group).

Note: In the railroad industry, it is a common practice to select employees by the train number rather than specific employee. This would mean that any covered employee working on that train on a specific day (whether it was their regularly assigned position or not) would be tested. Only the FRA permits this practice.

Warning: Unacceptable random selection practices include selecting numbers from a hat, rolling dice, throwing darts, picking cards, or selecting ping pong balls.

E. How often should selections and tests take place?

What makes random testing so effective is the element of surprise. While employees know they will be tested, they are never quite sure of when, so random selections and testing should be performed at least quarterly. Some employers are selecting and testing more frequently. We think that is a good idea.

Note: If you think you might not meet your annual testing rate requirement, increase your testing. But, in an effective random program, testing must be spread equally throughout the year.

Best practices: Here are smart things you can do to figure out when to test:

·Spread testing dates reasonably throughout the year in a non-predictable pattern.

·Conduct random drug tests anytime employees are on duty or while performing safety-sensitive duties. See your Agency regulations for your specific industry requirements of when to conduct testing. FRA has “hours of service” testing considerations.

·Conduct random alcohol tests just before, during, or just after the employee performs a safety-sensitive job, as described in your industry specific regulations.

·Each workday or weekend, you can enhance the non-predictability of your program by conducting tests at the start, middle, or end of each shift. The worse thing that could happen is for employees to say, “Yup, the last Friday of every month the second shift gets tested.”

V. Testing

A. Why are some people randomly tested more than once?

“Is the boss singling me out? I just did a random last month? Joe, never gets tested? I don’t think
this thing is random at all!”

Those are not uncommon concerns among some safety-sensitive employees, and many employers have been
challenged in court to demonstrate that their programs are truly random. The reality is that in a
truly random selection process, a high probability exists that some employees will be selected
several times while others may never be selected.

Why? Because after each selection, the employee’s name is returned to the same pool, and he or she
becomes just as likely as anyone else to be selected next time.

B. How are employees notified to report for a test?

Every employee should be discreetly notified according to your company’s policy, but random testing
must also be conducted in strict confidence with a limited number of people having knowledge of the
selection list.

Why? Because it helps maintain the element of surprise.

Best Practices: Every employer should have procedures in place to ensure that each employee
receives no advanced notice of selection. But, be sure to allow sufficient time for supervisors to
schedule for the administration of the test and to ensure that collection sites are available for
testing.

Remember: Employers must provide appropriate privacy for each employee the fact that he or she is
being tested.

C. What happens if a selected employee is not available for testing?
Employers need to have policies in place about what to do when employees are unavailable for
testing.

Best Practices:

· If an employee selected for testing is known to be unavailable during the selection cycle
(legitimate extended absence, long-term illness, etc.), document the reason and make-up the rate
shortfall by making another selection, or make an extra selection during the next selection cycle.

· An employee is selected for testing but has not received notice since it is his day off, test the
employee during his or her next shift within the same selection cycle.

· No employee should be excused from testing because of operational difficulties. See your industry
specific regulations and interpretations for legitimate exceptions.

· Once the employee is notified to report for testing and the test does not occur, the opportunity
for the random testing is over. There is no second “bite of the apple.”

D. What must employees do when notified of a random test?

When an employee is notified, he or she must proceed immediately to the collection site. Contrary to the urban legends circulating among some employees, immediately does not mean two hours.
Immediately means that after notification, all the employee’s actions must lead to an immediate
specimen collection

Why? For the integrity of the testing process.

Best Practice: Many employers develop random testing procedures or policies that clearly state what
activities are acceptable after notification: for instance, which safety-sensitive duties Agency
regulations permit them to complete. If an employee is notified of a random test while working “off
site” or “on the road,” the company’s policies should spell-out exactly what the employee must do
before resuming safety-sensitive functions. That way there is no misunderstanding among employees
about what is expected.

Note to Service Agents and Consortia/Third Party Administrators: Owner-operators and other
employers who themselves perform safety-sensitive duties present a special notification challenge.
So, if you are a service agent or C/TPA providing random selections and notices to an
owner-operator, you should have written procedures on how they are notified and instructed after
notification on when to report to a specific collection site. You must also have a written policy
about what constitutes a refusal to test if they fail to appear for a test when notified. You
should also provide these written items to these owner- operators and self-employed
safety-sensitive employees.

VI. Maintaining and Evaluating Your Random Program

It is the best practice for an employer to document everything on the entire random testing
process. This includes the numbers, names drawn, dates and times of notification, dates and times
of collections, why a selected employee was not tested during a selection cycle, etc. If you’re not
sure, document it!

Best Practices:
· Service agents and C/TPAs providing random selection and testing services to employers should
monitor on an ongoing basis (daily or weekly) the random tests that have been completed and compare
them to those that were selected. If a random test has not been completed in an acceptable
timeframe (within a day or week) of the expected test date, the service agent or C/TPA should
contact the employer to determine the status of the test and take the necessary steps to ensure the
test is completed within the selection period.
· Employers, service agents, and C/TPA should not wait until the end of the selection period to
reconcile the random testing numbers. This is a weak business practice that we want to discourage.

Remember: You must maintain all your testing records in accordance with industry specific
regulations. For more information, see the document, “Employer Record Keeping Requirements for Drug
and Alcohol Testing Information.” You can find this document at:
http://www.dot.gov/ost/dapc/documents.html .

If you have any questions on best practices don’t hesitate to call us!

Driver Qualification File Requirements

Regulation 49 CFR 391 explains the minimum requirements for commercial motor vehicle drivers. Motor carriers are required to maintain a qualification file for each of their drivers. The following information will help you be certain that each driver qualification file is complete.

Initial Driver Qualifications File Requirements:

  • Driver’s Application for Employment – 49 CFR 391.21
    • Must retain for life of employment + 3 years after termination
  • Driver’s Road Test Certificate or Equivalent – 49 CFR 391.31(e)
    • Must retain for life of employment + 3 years after termination
  • Inquiry to Previous Employers: Safety Performance History Records Request – 49 CFR 391.23 (a)(1) and (b)
    • Must retain for life of employment + 3 years after termination
  • Safety Performance History Records: Driver Correction or Rebuttal (If applicable) – 49 CFR 391.23 (i)(2) and  49 CFR 391.23 (j)(3)
    • Must retain for life of employment + 3 years after termination
  • Inquiry To State Agencies for 3-Year Driving Record – 49 CFR 391.23 (a)(1) and (b)
    • Must retain for life of employment + 3 years after termination
  • Pre-Employment Drug and Alcohol Documents – 49 CFR 40.25(j); 49 CFR 382.301
    • Must retain for 1-Year for negative results and 5-years for verified positive drug test results

Ongoing Updates:

  • Inquiry To State Agencies for Driving Record – Annual – 49 CFR 391.25 (a) and (c)
    • Must retain for 3 years from the date of execution
  • Review of Driving Record – Annual – 49 CFR 391.25 (c) (2)
    • Must retain for 3 years from the date of execution
  • Driver’s Certificate of Violations – Annual – 49 CFR 391.27
    • Must retain for 3 years from the date of execution
  • Medical Examination Report and Medical Examiner’s Certificate – 49 CFR 391.43
    • Must retain for 3 years from the date of execution
  • Employer note verifying that medical examiner is listed on National Registry of Certified Medical Examiners – Non-CDL Drivers: 49 CFR 391.51 (b)(9)(I); CDL Drivers: 49 CFR 391.51 (b)(9)(ii)
    • Must retain for 3 years from the date of execution

The following additional documents are only required for certain types of drivers, or in specific situations. 

  • Entry-Level Driver Training Certificate – 49 CFR 380.509(b)
    • All CDL drivers with less than one year experience must provide this certificate.
      • Must retain for 3 years from the date of execution
  • Longer Combination Vehicle (LCV) Driver Training Certificate – 49 CFR 380.401
    • A driver must not operate an LCV unless the driver can produce an LCV Driver Training Certificate or an LCV Driver Training Certificate of Grandfathering
      • Must retain for life of employment + 3 years after termination
  • Multiple-Employer Drivers – 49 CFR 391.63
    • For drivers with multiple employers
      • Must retain for life of employment + 3 years after termination
  • Skill Performance Evaluation Certificate – 49 CFR 391.49
    • Must retain  for 3 years from date of execution

For more information on DOT compliance and workplace safety, contact us today at 1.800.452.0030!

My Driver Failed A Drug Test, What Now?

When a driver has a verified positive drug test or refuses to test, the driver must be removed from a safety-sensitive function immediately per 49 CFR 382.501. No employer shall permit any driver to perform safety-sensitive functions; including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by Subpart B of this part or any alcohol or controlled substance rule of another DOT agency. The employer must present the driver with a list of Substance Abuse Professionals (SAPs) per 40.287. The list must be provided to the driver (or driver applicant) whether or not the carrier retains the driver in their employment. Retention of the driver would be based on the company policy.

In order to resume a safety-sensitive function, the driver must complete the Return-to-Duty Process of Subpart O of Part 40. The driver cannot perform a safety-sensitive function again until all the necessary steps are completed:

  1. The driver must seek a face-to-face evaluation from a SAP. (Payment of the evaluation is based on management-labor agreements and healthcare benefits and is not required of the employer under the FMCSRs.)
  2. The SAP will refer the driver to an appropriate treatment and education program.
  3. The driver must complete the required treatment and education and return to the SAP for another face-to-face evaluation.
  4. If the SAP is satisfied that the driver is able to return to driving, he/she will issue a report on his/her findings to the Designated Employer Representative.
  5. This report will list any continuing treatment and education, if required, and the number of DOT follow-up drug and/or alcohol tests required in a given time frame. The driver will be required to have a minimum of six unannounced follow-up tests in the first 12 months following the employee’s return to a safety-sensitive function. The SAP may require follow-up testing for up to five years.
  6. The driver now can go, and not prior to this point, for a return-to-duty drug and/or alcohol test. The employer must wait for the go ahead from the SAP before sending the driver in for the return-to-duty test. A negative result must be received before the driver can return to a safety-sensitive function.

After the driver returns to a safety-sensitive function, the employer must send the driver for the required number of unannounced follow-up tests making sure that they do not have any discernible pattern.

All records relating to a DOT-drug and alcohol violation must be retained for five years per 382.401. If the driver leaves the motor carrier’s employment prior to the completion of the very last follow up test, this information must be supplied to the prospective employer per 40.25, and the next employer(s) must pick up where the process left off.

*Please note that follow up and return-to-duty tests are always directly observed.

If you have any questions about this process, please contact us!

Federal Motor Carrier Safety Administration Issues Notice of Enforcement Discretion Determination: Random Controlled Substance and Alcohol Testing

“On March 13, 2020, the President declared a national emergency under 42 U.S.C. § 5191(b), related to the effects of Coronavirus Disease 2019 (COVID-19). The Federal Motor Carrier Safety Administration (FMCSA) is aware that the motor carrier industry continues to experience operational disruptions caused by the COVID-19 public health emergency. As the Nation engages in a phased re-opening, the pace of return to normal operations will vary across the country. In some regions of the United States, motor carrier employers subject to controlled substance (drug) and alcohol testing under 49 CFR part 382 may be unable to comply with certain testing requirements due to the ongoing impacts of the emergency.

“In recognition of these barriers to full compliance in some locations, the Agency may exercise discretion to determine not to enforce the minimum annual percentage random testing rates for drugs and alcohol, and the requirement that each employer ensure that the dates for administering random drug and alcohol tests are spread reasonably throughout the calendar year, as set forth in 49 CFR 382.305(b)(1) and (2) and 49 CFR 382.305(k), respectively. FMCSA emphasizes, however, that employers capable of meeting these requirements must continue to do so.

“Employers must continue to select drivers at the required rate of 50 percent of their average number of driver positions for controlled substances, and 10 percent for random alcohol testing during the calendar year 2020. If a test is unable to be completed due to the COVID-19 public health emergency, the motor carrier must maintain written documentation of the specific reasons for non-compliance. For example, employers should document closures or restricted use of testing facilities or the unavailability of testing personnel. Additionally, employers should document actions taken to identify alternative testing sites or other testing resources.

“Similarly, employers who are unable to ensure that the dates for administering random controlled substances and alcohol tests are spread reasonably throughout the calendar year should document the specific reasons why they did not meet this requirement. For example, in addition to the lack of available testing facilities or personnel, there may be other factors, such as prolonged or intermittent driver furloughs due to the impacts of COVID-19.

“The Agency 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.

“This Notice pertains to employers’ noncompliance, during calendar year 2020, with the random testing requirements described above. The Agency may exercise enforcement discretion in connection with motor carrier investigations occurring in calendar year 2021.

This Notice:

  1. Acknowledges the current and anticipated disruptions to the administration of drug and alcohol testing caused by the COVID-19 public health emergency;
  2. Considers the interests of public safety and the continuing need to free up medical supplies and facilities for the diagnosis and treatment of COVID-19;
  3. Requires that employers who are capable of complying with 49 CFR 382.305(b) and 49 CFR 382.305(k) must continue to do so; and
  4. Creates no individual rights of action and establishes no precedent for future determinations.”

 

Contact us if you have any questions!

Three-Month Waiver in Response to the Economic Consequences of the COVID-19 Public Health Emergency – To Relieve Employers of Commercial Motor Vehicle Drivers Subject to 49 CFR Part 382 from Certain Pre-Employment Testing Requirements

Click here to read the waiver!

Key Points – Pre-Employment Waiver [FMCSA] [06-05-2020]

If you have any questions, contact us!

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA grants a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery, issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019 (COVID-19) public health emergency.

DATES: This waiver is effective June 5, 2020, and ends on September 30, 2020.

FOR FURTHER INFORMATION CONTACT:  Mr. David J. Yessen, Chief of the Compliance Division, Office of Enforcement and Compliance, 202-366-1812, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of Transportation (the Secretary) authority to grant waivers from any of the Federal Motor Carrier Safety Regulations issued under Chapter 313 of Title 49 of the United States Code or 49 U.S.C. § 31136, to a person(s) seeking regulatory relief (49 U.S.C. §§ 31136(e), 31315(a)). The Secretary must make a determination that the waiver is in the public interest and that it is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver. Individual waivers may be granted for a specific unique event for a period up to three months. TEA-21 authorizes the Secretary to grant waivers without requesting public comment, and without providing public notice.

The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313, relating to commercial motor vehicle operators, and 49 U.S.C. chapter 311, subchapter I and III, relating to commercial motor vehicle programs and safety regulations.

Background
On May 19, 2020, the President issued Executive Order No. 13924 setting forth “the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” Among other things, the Executive Order directed executive branch agencies to “address this economic emergency by … waiving [] or providing exemptions from regulations and other requirements that may inhibit economic recovery consistent with applicable law and with protection of the public health and safety ….” This waiver responds to the unique circumstances of certain pre-employment testing requirements arising from the economic emergency identified in the President’s Executive Order, as further described below.

Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions, as defined in 49 CFR 382.107, resulting in their removal from the random pool for controlled substances and alcohol testing for a period greater than 30 days. As employers begin calling these drivers back to work, they will incur the cost of conducting pre-employment controlled substances testing before using these drivers to perform safety-sensitive functions, as required by 49 CFR 382.301. The administrative and cost burdens of pre-employment testing for furloughed drivers outside the random testing pool for more than 30 days falls on motor carrier employers at the very time they are attempting to return to expanded levels of operation. The Agency finds that temporary regulatory relief from this burden will aid in the economic recovery of motor carriers impacted by the COVID-19 public health emergency, without negatively impacting safety. FMCSA also concludes that this waiver will aid in the Nation’s overall economic recovery by enabling the efficient resumption of the transportation of people and cargo throughout the United States.

FMCSA’s Determination and Regulatory Provisions Waived
Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, until September 30, 2020, limited in scope and circumstances, that is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safety-sensitive functions for an employer, the driver must undergo pre-employment testing for controlled substances and the employer must receive a verified negative controlled substances test result for that driver from a medical review officer or a consortium/third party administrator.  This requirement also applies each time a driver returns to work after a furlough, lay-off, or other period of unemployment when the driver does not continue to be subject to random controlled substances testing in accordance with 49 CFR 382.305.

Section 382.301(b) provides an exception allowing an employer to forgo administration of a pre-employment test if the driver has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while participating in that program, the driver either: (i) was tested for controlled substances within the past 6 months or (ii) participated in the random controlled substances testing program for the previous 12 months. In addition, under the exception, the employer would be required to ensure that no prior employer of the driver has records of a violation of 49 CFR part 382 or the controlled substances use rule of another DOT agency within the previous six months.

As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.

This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.

Public Interest
FMCSA finds that the granting of this waiver is in the public interest because it will facilitate the efficient return of furloughed commercial motor vehicle drivers to the workforce, allowing them to resume critical transportation functions performed by passenger and property motor carriers. In addition, this waiver will reduce the regulatory burden on employers and furloughed drivers subject to the pre-employment testing requirement.

Safety Equivalency 
Due to the limited scope of this waiver and the ample precautions that remain in place, FMCSA has determined that the waiver is likely to achieve a level of safety that is equivalent to the level of safety that would be obtained absent the waiver. The waiver of a particular regulation should not be looked at in isolation but rather as part of the whole of all regulations governing the safety of drivers. Waiver determinations are made holistically, taking all relevant factors into account. See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). For example, in these circumstances, it is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).

Section 382.301(b) sets forth the following conditions a driver must meet to be excepted from pre-employment testing:

(1) The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of [part 382] or the controlled substances use rule of another DOT agency within the previous six months.
FMCSA finds that extending the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b)(1), from 30 to 90 days, will not negatively impact safety. The existing requirement that an employer relying on the § 382.301(b) exception must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months remains in effect. Moreover, employers must conduct a pre-employment query of the Clearinghouse for returning drivers, as required by § 382.701(a). The Clearinghouse, which became operational on January 6, 2020, enables employers to identify drivers, including furloughed drivers, who have committed an FMCSA controlled substances and alcohol testing program violation that renders them ineligible to perform safety-sensitive functions. Such drivers are prohibited from performing safety-sensitive functions until completing the return-to-duty process, as set forth in 49 CFR part 40, subpart O. The Clearinghouse provides employers with a useful new tool for identifying drivers’ drug and alcohol program violations that did not exist at the time the Agency enacted the 30-day limit for the exception in § 382.301(b). Further, employers must continue to complete a background investigation on returning or prospective drivers’ controlled substances and alcohol testing history with all DOT-regulated employers that employed the driver within the previous 3 years, in accordance with 49 CFR §§ 40.25, 382.413, and 391.23.

FMCSA believes that the current regulatory framework, as well as the additional measures listed below under Terms, Conditions, and Restrictions of the Waiver, taken collectively, provide the assurance needed to meet the legal standard that granting the waiver is likely to achieve an “equivalent level of safety.” Therefore, FMCSA has determined that extending from 30 to 90 days the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b) during the period of the waiver is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Unique Circumstances
The COVID-19 public health emergency has led to unprecedented impacts to the Nation’s economy. Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions. FMCSA finds that the circumstances surrounding this waiver are unique due to the urgent need to remove regulatory barriers to allow the efficient resumption of motor carrier operations.

For the reasons noted, FMCSA grants a three-month waiver as provided above, subject to the terms, conditions, and restrictions below.

Terms, Conditions, and Restrictions of the Waiver
This waiver covers employers of drivers subject to the requirements of 49 CFR part 382 for the period beginning at 12:01 a.m. (ET) on June 5, 2020, and continuing through 11:59 p.m. on September 30, 2020.

(1)    Employers must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months;
(2)    Employers must comply with the Clearinghouse pre-employment query requirement set forth in 49 CFR 382.701(a);
(3)    Employers must not allow a driver to perform any safety-sensitive function if the results of a Clearinghouse pre-employment query demonstrate that the driver is prohibited from doing so, in accordance with 49 CFR 382.701(d);
(4)    Employers must complete the investigations and inquiries required by 49 CFR §§ 40.25, 382.413, and 391.23;
(5)    Accident Notification. Each employer must notify FMCSA within 5 business days of an accident (as defined in 49 CFR 390.5), involving any driver operating under the terms of this waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry). Notification shall be by email to MCPSD@DOT.GOV. The notification must specify that the driver was operating under the terms of this waiver and must include the following information:

i.    Date of the accident;
ii.    City or town, and State in which the accident occurred, or closest to the accident scene;
iii.    Driver’s name and license number;
iv.    Vehicle number and State license number;
v.    Number of individuals suffering physical injury;
vi.    Number of fatalities;
vii.    The police-reported cause of the accident (if available at time of the report); and
viii.    Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations; and

(6)    FMCSA reserves the right to revoke this waiver due to drivers’ involvement in accidents or employers’ failure to comply with the terms of this waiver.

Jim Mullen
Deputy Administrator