Carriers struggling with their random drug and alcohol testing obligations because of the coronavirus pandemic can expect enforcement leniency from federal regulators.
The Federal Motor Carrier Safety Administration (FMCSA) announced it “may exercise discretion” in enforcing minimum annual percentage random testing rates — as well as the requirement that employers spread testing dates throughout the calendar year — for carriers unable to meet the requirements.
“As the Nation engages in a phased re-opening, the pace of return to normal operations will vary across the country,” FMCSA stated in a discretion determination notice issued Monday. “In some regions of the United States, motor carrier employers subject to controlled substance (drug) and alcohol testing … may be unable to comply with certain testing requirements due to the ongoing impacts of the emergency.”
The driver selection rate for controlled substances must continue at 50% of employers’ average number of driver positions, and at 10% for random alcohol testing during calendar year 2020.
FMCSA increased the annual random selection rate for drug testing from 25% to 50% late last year. The change was estimated to increase drug testing costs for the trucking industry by $50 million-$70 million per year.
The agency said carriers must keep written documentation of the reasons for noncompliance. “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,” FMCSA stated.
Carriers will also need to document why they are unable to spread drug and alcohol testing reasonably throughout the year. “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 also emphasized that the notice should not be perceived as suspending the current random testing requirements, emphasizing that employers capable of meeting the random testing requirements must continue to do so.
The agency said the change in enforcement stance applies to the current calendar year, but it “may exercise enforcement discretion in connection with motor carrier investigations occurring in calendar year 2021.”
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