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July 10, 2020
FMCSA exercising discretion in drug testing enforcement

Motor carriers still must conduct random drug testing of 50% of their drivers. However, the Federal Motor Carrier Safety Administration (FMCSA) announced it may exercise discretion in the enforcement of drug and alcohol testing requirements because the coronavirus disease 2019 (COVID-19) pandemic continues to cause disruptions within the industry.

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The agency also acknowledged the continuing need to free up medical supplies and diagnostic testing facilities for the diagnosis and treatment of COVID-19.

COVID-19, a respiratory illness caused by the SARS-CoV-2 virus, is widespread in most U.S. communities and considered a workplace hazard.

Motor carriers also must select 10% of their drivers for random alcohol testing. While the agency has decided to exercise discretion in enforcement, it expects employers that can meet the minimum testing requirements to do so.

The FMCSA expects motor carriers to document difficulties in conducting driver testing. Employers must:

  • Document closures or the restricted use of testing facilities or the unavailability of testing personnel.
  • Document actions taken to identify alternative testing sites or other testing resources.
  • Document the specific reasons they cannot meet requirements to administer random controlled substances and alcohol tests on dates reasonably spread throughout the calendar year, such as the lack of available testing facilities or intermittent or prolonged driver furloughs due to impacts of COVID-19.

While the agency’s notice is intended to reassure employers that the agency is providing reasonable enforcement flexibility, the FMCSA stressed that it is not suspending random drug testing requirements.

The FMCSA said enforcement discretion may extend into calendar year 2021.

It also announced last December that it was doubling the minimum annual percentage rate of random drug testing for commercial motor vehicle (CMV) drivers. The agency raised the minimum random drug testing rate of commercial driver’s license (CDL) holders from the current 25 percent to 50 percent for calendar year 2020.
Under existing drug and alcohol testing regulations, the administrator must increase the minimum annual random testing percentage rate whenever the reported positive rate for any calendar year is equal to or greater than 1%.

The positive rate for controlled substances in random testing in 2018 increased to 1% from 0.8% in 2017 and 0.7% in 2016. The administrator may lower the rate only if the positive rate is less than 1% for 2 consecutive calendar years.

Following the emergency declaration of a COVID-19 public health emergency, the FMCSA temporarily waived a number of motor vehicle safety requirements in March and allowed employers to make adjustments in their performance of mandatory random drug and alcohol testing. At the time, the agency said if motor carriers were unable to select and test drivers at the specified 50% and 10% rates due to disruptions caused by the COVID-19 national emergency, they should make up the tests by the end of the year.

The most commonly detected substance in controlled substances tests is marijuana, Quest Diagnostics reported last year. Marijuana positivity rates increased by 33.3% between 2015 and 2017 in tests performed for the transportation and warehousing sectors.

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