FMCSA Announces It May Not Enforce Minimum Required Random Drug And Alcohol Test Rates During 2020

Jackson Lewis P.C.
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The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration issued a Notice of Enforcement Discretion Determination on July 6, 2020 concerning random drug and alcohol testing during calendar year 2020. Due to the coronavirus pandemic, FMCSA stated that it recognizes that covered motor carriers may not be able to comply with certain testing requirements due to the ongoing impacts of the pandemic. For this reason, FMCSA:

. . . 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 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% of their average number of driver position for controlled substances, and 10% 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.

FMCSA further stated that this enforcement discretion determination was intended to provide reasonable flexibility while still meeting the Agency’s core safety mission. In addition, this Notice “creates no individual rights of action and establishes no precedent for future determinations.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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