Pre-Employment Drug Testing Waiver Extended to Relieve Truckers During COVID-19 Crisis

The Federal Motor Carrier Safety Administration has announced that it will be offering a 90-day waiver from pre-employment drug testing requirements to recently furloughed commercial truck drivers, due to the effects of the current coronavirus pandemic.

The waiver became effective in June and is set to expire September 30th, and amends regulations in place that have required drivers to comply with pre-employment drug testing. A potential employee must have a negative test result shown to his or her employer before any safety-sensitive actions are performed, such as operating a commercial motor vehicle.

“In response to the COVID-19 pandemic public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions, resulting in their removal from the random pool for controlled substances and alcohol testing for a period greater than 30 days,” said the FMCSA in its announcement.

The waiver states that if a pre-employment controlled substances test can not take place, the potential employee must not be allowed to perform Department of Transportation duties with any safety risks until a negative test can be conducted.

The regulation also extends an exemption to this rule to drivers who have been part of a recent testing program (within the last 30 days) that meets the requirements of regulation and who were also tested for controlled substances within the last six months before the date of the employment application, or who have participated in the random controlled substances testing program within the last 12 months before the date of the employment application.

If an employer can ensure that no previous employer of the prospective employee has any records of a violation in regards to this area of the controlled substances-use rule of another DOT agency within the last six months, an exemption can also be granted.

“As employers begin calling these drivers back to work, they will incur the cost of conducting pre-employment controlled substances testing before using these drivers to perform safety-sensitive functions,” the agency continued. “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.”

Now, the FMCSA says this temporary regulatory flexibility will help motor carrier companies heal after impacts from the coronavirus crisis, while not affecting overall safety. The agency also explained that this waiver is meant to help economic recovery throughout the entire country by allowing for the resumption of cargo transportation.

This extension comes after Donald Trump’s executive order in May calling for action to “combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.”

This order urges agencies to focus on the impacts of this economic crisis “by waiving or providing exemptions from regulations and other requirements that may inhibit economic recovery consistent with applicable law and with protection of public health and safety.”

The waiver also requires employer verification of a driver having participated in controlled substances testing, and that he or she has had no recorded violations of the FMCSA’s controlled substances-use regulations within the last six months. The employer must also cooperate with the Drug and Alcohol Clearinghouse pre-employment query requirement, complete investigations and inquiries needed by any federal regulations, and give notice of any accident involving any driver operating under the terms of the waiver, with specifications that the driver was indeed operating under these terms, to the FMCSA within five business days of the accident. Lastly, the employer cannot allow a driver to perform any safety-sensitive duties if the results of a Clearinghouse pre-employment query show that the driver has been prohibited from performing said duties.

According to the FMCSA, with current precautions in place regarding this waiver, the agency “has determined that the waiver is likely to achieve a level of safety that is equivalent to the level of safety that would be obtained absent the waiver,” and that “the waiver of a particular regulation should not be looked at in isolation, but rather as part of the whole of all regulations governing the safety of drivers.”