DOT COVID-19 Guidance

Transportation

DOT Guidance on Compliance with Drug and Alcohol Testing Regulations

This guidance document provides clarity to DOT-regulated employers, employees, and service agents on conducting DOT drug-and-alcohol testing given concerns about the Coronavirus Disease 2019 (COVID-19).  We, as a Nation, are facing an unprecedented public health emergency that is straining medical resources and altering aspects of American life, including the workplace. The Nation’s transportation industries, which are not immune to the impacts and disruptions resulting from the spread of COVID-19 in the United States, are playing a vital role in mitigating the effects of COVID-19.

DOT is committed to maintaining public safety while providing maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.

The below guidance on compliance with the DOT and modal drug and alcohol testing programs apply during this period of national emergency.

For DOT-Regulated Employers:

  • As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements.[2] 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.[3]
  • 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)

This guidance document does not have the force and effect of law and is not meant to bind the public in anyway.  This guidance is intended only to provide clarity regarding existing requirements under the law.

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).

[3]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 have any questions, please contact us!

Refusal To Test

Refusing Paperwork

What is a refusal to take a DOT drug test, and what are the consequences? The DOT regulations speak to refusals in subpart I – Problems in Drug Testing. The three rules that are commonly cited are 40.191, 40.193, and 40.195. A refusal to test is much broader than the employee telling their employer that they will not have the test completed.

(a) As an employee, you have refused to take a drug test if you:

(1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a));

(2) Fail to remain at the testing site until the testing process is complete; Provided, That an employee who leaves the testing site before the testing process commences (see §40.63 (c)) for a pre-employment test is not deemed to have refused to test;

(3) Fail to provide a urine specimen for any drug test required by this part or DOT agency regulations; Provided, That an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see §40.63 (c)) for a pre-employment test is not deemed to have refused to test;

(4) In the case of a directly observed or monitored collection in a drug test, fail to permit the observation or monitoring of your provision of a specimen (see §§40.67(l) and 40.69(g));

(5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see §40.193(d)(2));

(6) Fail or decline to take an additional drug test the employer or collector has directed you to take (see, for instance, §40.197(b));

(7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under §40.193(d). In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment. If there was no contingent offer of employment, the MRO will cancel the test; or

(8) Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process, fail to wash hands after being directed to do so by the collector).

(9) For an observed collection, fail to follow the observer’s instructions to raise your clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process.

(10) Possess or wear a prosthetic or other device that could be used to interfere with the collection process.

(11) Admit to the collector or MRO that you adulterated or substituted the specimen.

If the employee is concerned about COVID-19 and refuses to go into the clinic to have the collection completed, it is deemed a refusal to test. If the test is considered a refusal, you must consider it as a violation. As a result, the refusal must get reported to the clearinghouse. For information on how to handle this violation, please read our other article here.

If you have any questions, please contact us! We are here anytime to assist you with compliance!

2020 DOT Random Testing Rates

Transportation Technology

The following outlines the annual minimum drug and alcohol random testing rates established within DOT Agencies and the USCG for 2020.

DOT Agency 2020 Random Drug Testing Rate 2020 Random Alcohol Testing Rate
Federal Motor Carrier Safety Administration (FMCSA) 50% 10%
Federal Aviation Administration (FAA) 25% 10%
Federal Railroad Administration (FRA) 25% – Covered Service 10% – Covered Service
50% – Maintenance of Way 25% – Maintenance of Way
Pipeline & Hazardous Materials Safety Administration (PHMSA) 50% N/A
Federal Transit Administration (FTA) 50% 10%
United States Coast Guard (USCG) 50% N/A

 

Note: Employers (and C/TPAs) subject to more than one DOT agency drug and alcohol testing rule may continue to combine covered employees into a single random selection pool.

 

USCG covered employees may be combined with DOT covered employees in drug testing pools even though the USCG is now part of the Department of Homeland Security.

Understanding The FMCSA Clearinghouse!

In preparation for the upcoming FMCSA Drug & Alcohol Clearinghouse effective January 6, 2020, NTA offers:

  • Updated FMCSA Substance Abuse Policies and Driver Educational Materials to add the new component of FMCSR Part 382.601 (#12). These updates are included in the Annual Management Fee for existing clients.
    • Policies and Educational material can be purchased by non-clients for $50.00.
  • Important: Owner-operators are required to designate a Third Party Administrator (TPA) to manage their clearinghouse processes. Nationwide Testing Association Inc is your Third Party Administrator. If you need help registering and designating us as your TPA, please call our office.
    • Managing the clearinghouse process for owner-operators will be included in your annual management fee.

 

Our clients may choose to add the following package of services to their program. This package may be billed as a monthly, quarterly, or yearly subscription.

  • Full Queries run automatically after the completion of a pre-employment DOT drug test.
  • Annual Limited Queries run automatically on all drivers, either based on a predetermined date or scheduled with your annual MVR with Nationwide Testing Association.
  • Coordination, evaluation, and assistance with all required reporting.
  • Assistance in understanding and interpreting clearinghouse data.

Contact us today for more information!

FMCSA Drug & Alcohol Clearinghouse Services

18-Wheeler on Highway

In preparation for the upcoming FMCSA Drug & Alcohol Clearinghouse effective January 6, 2020, NTA offers:

  • Updated FMCSA Substance Abuse Policies and Driver Educational Materials to add the new component of FMCSR Part 382.601 (#12). These updates are included in the Annual Management Fee for existing clients.
    • Policies and Educational material can be purchased by non-clients for $50.00.
  • Important: Owner-operators are required to designate a Third Party Administrator (TPA) to manage their clearinghouse processes. Nationwide Testing Association is your Third Party Administrator. If you need help registering and designating us as your TPA, please call our office.
    • Managing the clearinghouse process for owner-operators will be included in your annual management fee.

 

Our clients may choose to add the following package of services to their program. This package may be billed as a monthly, quarterly, or yearly subscription.

  • Full Queries run automatically after the completion of a pre-employment DOT drug test.
  • Annual Limited Queries run automatically on all drivers, either based on a predetermined date or scheduled with your annual MVR with Nationwide Testing Association.
  • Coordination, evaluation, and assistance with all required reporting.
  • Assistance in understanding and interpreting clearinghouse data.

 

Contact us for a quote!

My Driver Failed A Drug Test, What Now?

Trucking

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!