FMCSA Releases COVID-19 Pre-Employment Testing Guidance
June 5, 2020
The Federal Motor Carrier Safety Administration (FMCSA) has granted a three-month wavier from certain pre-employment testing requirements for applicable motor carriers. This waiver extends the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b) from 30 days to 90 days. This relief would allow employers to forego pre-employment testing for drivers who have participated in a random controlled substances testing program that meets the requirements within the previous 90 days of hire or rehire. Proof of participation in an applicable testing program would need to be documented by the employer per the requirements. Drivers who have not been enrolled in a random testing program would not be eligible for the waiver and a pre-employment drug test would still be required. This waiver is effective June 5th, 2020 and ends on September 30th, 2020.
Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safety-sensitive functions for an employer, the driver must undergo pre-employment testing for controlled substances and the employer must receive a verified negative controlled substances test result for that driver from a medical review officer or a consortium/third party administrator. This requirement also applies each time a driver returns to work after a furlough, lay-off, or other period of unemployment when the driver does not continue to be subject to random controlled substances testing in accordance with 49 CFR 382.305.
Section 382.301(b) provides an exception allowing an employer to forgo administration of a pre-employment test if the driver has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while participating in that program, the driver either:
- (i)was tested for controlled substances within the past 6 months or
- participated in the random controlled substances testing program for the previous 12 months.
In addition, under the exception, the employer would be required to ensure that no prior employer of the driver has records of a violation of 49 CFR part 382 or the controlled substances use rule of another DOT agency within the previous six months.
As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short time frame are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.
This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.
FMCSA finds that the granting of this waiver is in the public interest because it will facilitate the efficient return of furloughed commercial motor vehicle drivers to the workforce, allowing them to resume critical transportation functions performed by passenger and property motor carriers. In addition, this waiver will reduce the regulatory burden on employers and furloughed drivers subject to the pre-employment testing requirement.
The FMCSA wavier can be viewed here.