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Law360 (May 6, 2020, 5:39 PM EDT )
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| Tia Ghattas |
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| Josh Greenbaum |
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| Kendall Hayden |
The trucking industry is the lifeblood of the U.S. economy, credited with transporting nearly 71% of all freight tonnage — and for those counting, that's 10.5 billion tons of freight on 3.6 million heavy duty Class 8 trucks annually, driven by over 3.5 million professional truck drivers.[1]
Remote work is not possible for this front-line industry. The movement of these critical goods is vital — now more than ever.
As the transportation industry continues to play an essential role in mitigating the effects of COVID-19, the U.S. Department of Transportation's Federal Motor Carrier Safety Administration, or FMCSA, recognizes the strain on medical resources and its impact on the industry. This strain may impact the transportation industry's ability to comply with regulatory requirements while continuing to move these goods safely.
For example, employers may now be challenged to find resources for drug and alcohol testing in the event of an accident. Therefore, it is important to understand the guidance that the FMCSA has provided, and evaluate both the positive and negative impacts in the short term and the longer term.
A Brief Review
While the trucking industry has received some welcome relief in the guidelines on their alcohol and drug testing requirements during the COVID-19 pandemic, the guidelines do not provide complete exemptions from DOT testing requirements. Recognizing that there may be disruptions in mandatory drug and alcohol testing for truck drivers, guidance has been issued by the FMCSA.[2]
The guidance on compliance with drug and alcohol testing requirements was issued on March 24, and applies during this period of national emergency. This guidance is in effect until June 30.
Random Testing
FMCSA-regulated employers are required, by Title 49 Code of Federal Regulations Section 382.305(k), to ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. DOT guidance further recommends that employers perform random selections and tests at least quarterly.[3]
If, due to disruptions caused by the COVID-19 national emergency, employers are unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing, and 10% for alcohol testing, they should make up the tests by the end of the year.
Employers should document in writing the specific reasons why they were unable to conduct tests on randomly selected drivers, and any actions taken to locate an alternative collection site or other testing resources.
Preemployment Testing
If an employer is unable to conduct a preemployment controlled substances test, in accordance with Title 49 CFR Section 382.301(a), then that employer cannot allow a prospective employee to perform DOT safety sensitive functions until receiving a negative preemployment test result, unless the exception in Title 49 CFR Section 382.301(b) applies.
Post-Accident Testing
Employers are required by Title 49 CFR Section 382.303 to test each driver for alcohol and controlled substances as soon as practicable following accidents. However, if an employer is unable to administer an alcohol test within eight hours following an accident, or a controlled substance test within 32 hours following the accident, due to disruptions caused by the COVID-19 national emergency, the employer must document in writing the specific reasons why the test could not be conducted, as currently required.[4]
Reasonable Suspicion Testing
Employers should document in writing the specific reasons why any reasonable suspicion testing could not be conducted as required, due to COVID-19 disruptions. Employers should include any efforts made to mitigate the effect of the disruptions, such as trying to locate an alternative collection site.
This documentation should be provided in addition to the documentation of the observations leading to the test, as required by Title 49 CFR Section 382.307(f). Employers must follow current regulations addressing situations in which reasonable suspicion testing is not conducted, as set forth in Title 49 CFR Section 382.307(e)(1) and (2).
Return-To-Duty Testing
In accordance with Title 49 CFR Section 40.305(a), for any driver requiring return-to-duty testing, employers must not allow the driver to perform any safety-sensitive functions, as defined in Title 49 CFR Section 382.107, until the return-to-duty test is conducted and there is a negative result.
Followup Testing
If an employee is subject to a followup testing plan, but planned testing cannot be completed due to COVID-19 disruptions, the employer should document in writing the specific reasons why the testing could not be conducted in accordance with the plan.
The employer should include any efforts made to mitigate the effect of the disruptions, such as trying to locate an alternative collection site. The employer should conduct the test as soon as practicable.
FMCSA-Regulated Employees
FMCSA-regulated employees must follow the Office of Drug and Alcohol Policy and Compliance guidance:[5]
- Employees experiencing COVID-19-related symptoms should contact their medical providers and, if necessary, let their employers know about their availability to perform work.
- Employees with COVID-19-related concerns about testing should discuss them with their employers. The FMCSA joins ODAPC in suggesting that employers respond to employee concerns in a sensitive and respectful way.
As a reminder, it is the employer's responsibility to evaluate the circumstances of what may be considered an employee's refusal to test, and to determine whether or not the employee's actions should be considered a refusal as per Title 49 CFR Section 40.355(i).
Analysis: The Upside
Increased Mobility for Trucking Industry
Many of us have observed the benefits of remote operations during this time, even in more traditional work settings like law firms. While working remotely presents its own unique challenges, perhaps the good coming from these changes will continue even after COVID-19.
As an example, use of mobile testing facilities when fixed-site collection facilities are unavailable may be able to continue even after mandatory shelter laws are lifted, as a more expedient and efficient way to conduct testing.
Safety and Wellness Still Paramount
Those of us who have always represented trucking companies have felt a welcome sense of satisfaction as the rest of the country has realized what these heroes do on a daily basis.
Because testing will not fall within other DOT exemptions, the public, drivers, their employers and their customers and vendors should feel safe that mandatory testing will continue, in order to ensure public health and safety.
Analysis: The Downside
Perceived Health Risks of Testing
Testing mandates ensure the fitness of each driver. But the government's prioritizing of this requirement may increase employee concerns, given perceived potential public health risks associated with the collection and testing process in the current environment.
Employers will be called upon to make reasonable efforts to locate the necessary resources to quell these concerns, including, but not limited to, backup plans and communications with testing vendors.
Limitations on Drivers Who Are Not Tested
In light of the mandates regarding return-to-duty testing, where an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions with such testing, some employees may claim they have been treated differently in the wake of COVID-19.
Moreover, although employers must require testing, employees who cannot be tested, and thus cannot perform a safety-sensitive task, may take issue with their limited work. Employers should explain to employees why testing is required, and rely on resources that may provide work that is not safety-sensitive for these employees.
Preservation of Documentation
As noted above, documentation submitted by covered employers unable to conduct DOT drug/alcohol testing or training due to COVID-19 constraints should be descriptive. It is equally important that employers ensure that this documentation is preserved adequately to present later down the road.
Joint Employment
The trend of the plaintiffs bar in the last decade has shifted towards trying to hold shippers and brokers liable as employers of the driver of a motor carrier.
Given that the FMCSA's drug and alcohol testing mandates are directed towards "employers," anyone considering how to implement and follow these mandates needs to proceed with caution that too broad a net is not cast with respect to who is considered an employee.
Conclusion
Clearly the guidelines provided by the FMCSA are well-intended, and offer the trucking industry a set of workable criteria to help ensure the safety and productivity of our most vital human resources and the products they deliver during these new and challenging times. Those served by them — all 300 million of us here in the U.S. — are relying on them.[6]
Tia Ghattas is a member and co-chair of the transportation and logistics industry group at Cozen O'Connor.
Josh Greenbaum is a member and co-chair of the real estate and construction industry group at the firm.
Kendall Hayden is a member, vice-chair and managing partner of Cozen O'Connor's Dallas office.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] According to the American Trucking Association.
[2] https://www.fmcsa.dot.gov/emergency/fmcsa-covid-19-drug-alcohol-testing-guidance.
[3] https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Best_Practices_for_DOT_Random_Drug_and_Alcohol_Testing_508CLN.pdf.
[4] See Title 49 CFR Section 382.303(d) and FMCSA Guidance at https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/commercial-motor-vehicle-operator-involved-accident-which.
[5] https://www.transportation.gov/odapc/compliance-with-dot-drug-and-alcohol-testing-regulations.
[6] This guidance document does not have the force and effect of law, and is not meant to bind the public in any way. This guidance is intended only to provide clarity regarding existing requirements under the law.
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