FMCSA Drug and Alcohol Testing Discretionary Enforcement Order: Employer Essentials

Due to Coronavirus Disease 2019 (COVID-19), President Trump declared a national emergency under 42 U.S.C. § 5191(b) on March 13, 2020. To date, the nation is still in a state of national emergency. The Federal Motor Carrier Safety Administration (“FMCSA”) has issued various notices providing necessary adjustments and modifications for motor carrier employers  in response to COVID-19 outbreaks, their effects on the public, and the immediate risk they present to public health, safety, and welfare. On June 6, 2020, FMCSA issued another notice. This notice indicates to motor carrier employers that the FMCSA may exercise discretion to determine not to enforce the requirement that each employer administer drug and alcohol testing under certain portions of 49 CFR part 382.

49 CFR 382.305(b)(1) and (2) and 49 CFR 382.305(k) enforces the minimum annual percentage random testing rates for drugs and alcohol, and the requirement that each motor carrier employer ensure that the dates for administering random drug and alcohol tests are spread out reasonably throughout the calendar year.[1] In some regions of the country, according to the FMCSA, motor carrier employers may be unable to comply with these testing requirements due to the ongoing impacts of the COVID-19. In such an event where it is shown by the employer that it was impossible to comply with the random testing provisions, the FMCSA may exercise its discretion not to penalize the employer.

Despite FMCSA’s recent notice, FMCSA emphasizes that employers capable of meeting these requirements must continue to do so.  The notice states, “Employers must continue to select drivers at the required rate of 50 percent of their average number of driver positions for controlled substances, and 10 percent for random alcohol testing during the calendar year 2020.”[2]  FMCSA is requiring the motor carrier to maintain written documentation of the specific reasons for non-compliance if a test is unable to be completed due to the COVID-19 public health emergency.[3] Examples listed include: (1) employers documenting closures or restricted use of testing facilities or the unavailability of testing personnel; and (2) employers documenting actions taken to identify alternative testing sites or other testing resources. Additionally, 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.

While striving to meet FMCSA’s core safety mission, the Agency issued this notice in an effort to reassure employers who are unable to fully comply with the requirements identified in 49 CFR 382.305(b)(1) and (2) and 49 CFR 382.305(k) that they may be provided reasonable enforcement flexibility during this pandemic. To ensure motor carriers understand the intent and scope of this notice, FMCSA’s declaration indicated that the discretionary enforcement provisions pertain to employers’ noncompliance during calendar year 2020 and that FMCSA may exercise enforcement discretion in connection with motor carrier investigations occurring in calendar year 2021 as well.  FMCSA further clarified that this notice:

1. Acknowledges the current and anticipated disruptions to the administration of drug and alcohol testing caused by the COVID-19 public health emergency;
2. Considers the interests of public safety and the continuing need to free up medical supplies and facilities for the diagnosis and treatment of COVID-19;
3. Requires that employers who are capable of complying with 49 CFR 382.305(b) and 49 CFR 382.305(k) must continue to do so; and
4. Creates no individual rights of action and establishes no precedent for future determinations.

FMCSA’s notice authorizing discretionary enforcement of random controlled substance and alcohol testing violations is to accommodate motor carrier employers who are approaching barriers and disruptions stemming from the ongoing impacts cause by COVID-19. FMCSA has highlighted that this notice is not intended, and should not be perceived, as suspending the current random testing requirements. Employers capable of meeting the standard requirements even during this state of national emergency still must do so and the discretionary enforcement order does not apply to other tests required under the regulations. Motor vehicles continue to play a critical role in transporting necessary property and passengers, including, but not limited to, shipments of essential supplies and persons to respond to the effects of COVID-19.[i]