COVID-19 - Controlled Substance and Alcohol Regulations

COVID-19 - Controlled Substance and Alcohol Regulations


March 26, 2020
Controlled Substance and Alcohol Regulations

As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. 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. You 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.

FMCSA has issued guidance on how to handle disruptions to controlled substance and alcohol testing during the emergency. This guidance is in effect until May 30, 2020.

In several instances FMCSA is not granting any latitude. You may not allow a new hire to perform safety sensitive functions until you have received a negative pre-employment test result. Drivers who need a return to duty test cannot perform safety sensitive functions until you have received a negative return to duty test result.

Random Testing
If, due to disruptions caused by the COVID-19 national emergency, you are unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing, and 10% for alcohol testing, you should make up the tests by the end of the year. You should document in writing the specific reasons why you were unable to conduct tests on drivers randomly selected, and any actions taken to locate an alternative collection site or other testing resources.
 
Post-Accident Testing
You are required to test each driver for alcohol and controlled substances as soon as practicable following an accident as required by 49 CFR 382.303. However, if you are unable to administer an alcohol test within 8 hours following the accident, or a controlled substance test within 32 hours following the accident, due to disruptions caused by the COVID-19 national emergency, you must document in writing the specific reasons why the test could not be conducted, as currently required.

Follow Up Testing
If testing cannot be completed, you should document in writing the specific reasons why the testing could not be conducted as in accordance with the follow-up testing plan; you should include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. You should conduct the test as soon as practicable

Reasonable Suspicion
You should document in writing the specific reasons why the test could not be conducted as required; include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. This documentation should be provided in addition to the documentation of the observations leading to a test, as required by 49 CFR 382.307(f).
Follow current regulations addressing situations in which reasonable suspicion testing is not conducted, set forth in 49 CFR 382.307(e)(1), (2). This is extremely important. A driver who has exhibited observable signs of alcohol use sufficient to require a reasonable suspicion test cannot be placed back in service if a test is not performed. The regulation cited previously requires that they not perform safety sensitive functions for 24 hours. There may also be company policies which come into play in this situation.

Refusal to Test
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. Also, as mentioned earlier, consider the use of mobile collection service.

For more information on drug and alcohol testing, visit this link: 
 
https://www.fmcsa.dot.gov/emergency/fmcsa-covid-19-drug-alcohol-testing-guidance