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Drug Test Sign
Drug Test Sign
Drug Test Sign
Drug Test Sign
Drug Test Sign

FMCSA Extends Waiver for Some Driver Drug Tests

June 15, 2020
COVID-19 changes in pre-employment drug test rules remain in place until September.

The Federal Motor Carrier Safety Administration (FMCSA) has extended the waiver of pre-employment drug and alcohol testing for interstate truck and bus drivers to Sept. 30.

Ordinarily, an absence of 30 days or more from the random testing pool triggers a pre-employment drug test upon returning to work. FMCSA now has extended this period to 90 days because many of the fleets that had to furlough drivers during the Coronavirus pandemic are starting to return them to work.

“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,” FMCSA said in its announcement.

“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. 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 concluded that the waiver will help promote the nation’s overall economic recovery by enabling the efficient resumption of the transportation of people and cargo throughout the country.

Employers are reminded that if they wish to take advantage of the waiver (that is, conduct no pre-employment drug test), they must comply with all of the requirements of the federal regulations regarding drug testing. Specifically, the employer must ensure that:

● The driver has participated in a controlled substances testing program that meets the requirements of the drug testing rules within the previous 90 days.

● While participating in that program, either: the driver was tested for controlled substances within the past six months (from the date of application with the employer), or anticipated in the random controlled substances testing program for the previous 12 months (from the date of the driver’s application with the employer).

● The employer ensures that no prior employer of the driver who the current employers knows about has records of a violation of the rules or the controlled substances use rules of other agencies within the previous six months.

Specifically, this last requirement means that the employer must conduct a query of the FMCSA Clearinghouse to ensure that there is no violation that would prevent the driver from performing safety-sensitive duties, and the employer must conduct the safety performance history investigation.

In addition, FMCSA requires employers to report accidents involving drivers who drive under this waiver, points out attorney Kathryn J. Russo of the law firm of Jackson Lewis. The report must be made by email to [email protected] and must be made within five business days of an accident.

“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 motor coach industry is facing unprecedented economic challenges,” FMCSA stressed. “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.”

In March, the FMCSA’s parent organization, the U.S. Department of Transportation (DOT), announced modifications of drug testing requirements of all of the transportation modes it is responsible for regulating, including interstate bus and truck operations. Commercial driver employers had continued following pre-employment and reasonable suspicion testing.

Rules that were never changed and continued to remain in force are those that apply to the Reasonable Suspicion and Return-to-Duty (RTD) Testing. Other requirements that remained in place include Suspicion Testing.

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