FMCSA May 'Exercise Discretion' Enforcing Random Drug Testing

The Federal Motor Carrier Safety Administration announced that in some locations, it may “exercise discretion” and not enforce minimum annual random drug and alcohol testing rates in areas still affected by the COVID-19 pandemic.

In FMCSA's July 6 notice, the agency says, “in some regions of the United States, motor carrier employers subject to controlled substance (drug) and alcohol testing under 49 CFR part 382 may be unable to comply with certain testing requirements due to the ongoing impacts of the emergency. In recognition of these barriers to full compliance in some locations, the Agency 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 that 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) and49CFR 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 positions for controlled substances, and 10% for random alcohol testing during the calendar year 2020.

If a test cannot 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. The agency said companies also 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.

“This notice is not intended, and should not be perceived, as suspending the current random testing requirements,” the agency emphasized.

It also said that FMCSA may exercise enforcement discretion in connection with motor carrier investigations in 2021.