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How Does a DOT BAT Safely Conduct Alcohol Screening and Confirmation During COVID?

By Andrew David Easler, Esq.

When a United States Department of Transportation qualified breath alcohol technician (DOT BAT) is faced with testing an employee for alcohol, how does the DOT BAT ensure safety and security during the testing process? What if the employee refuses to provide a sample over concerns of contracting the virus?

ODAPC has repeatedly reinforced during the pandemic that “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).” Thus, in a novel, COVID-related situation like this, the ultimate authority to determine a refusal will be up to the employer. Here are some techniques to prevent the spread and overcome objections:

Utilize a Disposable Saliva Test

The DOT has approved certain saliva tests for alcohol screening, known as Alcohol Screening Devices (ASDs).[1] These are the preferred method for alcohol testing during the pandemic as they do not generate “significant respiratory droplets or bio-aerosols.”[2] These devices are capable of screening for the presence of alcohol in an initial screening. If the result is negative, then the test is complete. If the screening is non-negative, then the employee must be tested again using an Evidential Breath Testing Device (EBT Device) which uses breath (there are currently no alcohol tests approved by the DOT which can perform confirmation tests). Note that, per 49 CFR Part 40.213, the technician who conducts any alcohol test must be trained in the use of the device before the technician can conduct the test, even if the technician already qualifies under a different device.[3]

Sanitize

Cleaning and sanitizing a breath alcohol device is not impossible. While many manufacturers discourage the use of alcohol-based disinfectants (some going so far as voiding warranty) in or around the intake, many others are just fine to use an alcohol-based solution to sanitize the surface of the device.[4] Check with your EBT manufacturer to be sure. In the alternative, an antimicrobial cleaner or disinfectant that doesn’t contain alcohol may be used. In any case, if you do use an alcohol-based disinfectant, you will need to wait for any residual alcohol to dissipate and for the surface to dry. Depending on how much you used and the surface of the device, this could take as little as 15 minutes or as long as an hour or more. An Evidential Breath Testing Device (EBT Device) approved by NHTSA will run an air blank to check if there is any residual alcohol before a test can be completed. That is your final check to be sure there is no residual alcohol.

Follow Procedures

The breath testing procedure, well before COVID, provided for a fairly secure method of preventing contraction or cross-contamination. In particular, the mouthpieces are each individually sealed and disposable and designed to be used only once. In a recent study, the manufacturer Lifeloc announced that it had simulated a test with a highly infected test subject and found that there were “no detectable viruses with the FC Series and L Series units” and thus a subsequent subject, according to the study, did not present the risk of contraction.[5]

Limit Contact:

    1. The BAT should be wearing a mask and following local, state, and federal guidelines whenever possible including ensuring safe distances and sanitization of points of contact in the facility (doorknobs, pens, counters, etc.).
    2. The BAT will utilize a new set of gloves for each test.
    3. BATs should not touch the end of the mouthpiece, even with gloves, that the employee will breathe into. This includes before and after the test.
    4. Do not allow the employee to touch the device itself and provide instructions in advance of testing to this effect.
    5. Also, do not allow the employee to touch any unopened mouthpieces except the one(s) to be used in the test
    6. The employee should also wear a mask when not performing the test.
    7. The BAT should utilize the ejection tab on the device, rather than pulling the mouthpiece off manually, and eject the used mouthpiece directly in the trash receptacle.
    8. Ensure that the outflow of breath from the device is facing away from the BAT.
    9. The BAT should wear a face shield or other eye protection in addition to a mask, ideally an N95.

Following these procedures as well as CDC guidance, a technician can mitigate a substantial amount of contraction risk during the process between the technician and the employee tested. An alcohol test is an extremely time-sensitive test, so a rescheduled test is likely to place the employee well outside of the detection window. Thus, a significant interest in safety is implicated in encouraging the test to be completed, but if testing sites are not taking sufficient safety precautions, the employer is well within their rights to reschedule a test rather than consider a failure to test a refusal.[6] All other regulations still apply.

References:

[1] See, e.g.,

[2] http://acoem.org/COVID-19-Resource-Center/COVID-19-Q-A-Forum/What-are-the-occupational-medicine-guidelines-for-conducting-BATs-in-light-of-the-COVID-19-pandemic

[3][3] 49 C.F.R. Part 40.213. For training on the use of an

[4] See, e.g., https://lifeloc.com/covid

[5] (Noting that only Lifeloc devices were tested).

[6] https://www.transportation.gov/odapc/compliance-with-dot-drug-and-alcohol-testing-regulations

The information on this page may have changed since we first published it. We give great legal advice, but this page (and the rest of our site) is for informational use only and is no substitute for actual legal advice. If you’d like to establish an attorney-client relationship, reach out to us and we’ll tell you how we can make it official. Sending us an email or reading this page alone doesn’t mean we represent you.

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