On July 6th, FMCSA released a notice in regard to meeting the random testing requirement for 2020 in light of the C-19 pandemic. Up to this point in time, US DOT and all state DOT agencies have held firm that the number of random tests to be done by a covered employer would remain unchanged. With this notice, FMCSA has given a potential out for some motor carriers due to regional closures of all clinics and collection sites for drug screen collection and/or breath alcohol testing services.
In this notice, FMCSA acknowledges that in some regions of the United States, motor carriers are unable to comply with the required random testing requirements due to pandemic outages. Due to these outages, FMCSA may exercise discretion to determine not to enforce the minimum annual percentage of testing (which is 50% for drug tests and 10% of breath alcohol tests) as well as if the density of completed testing are not evenly spread throughout the year. In their notice, FMCSA emphatically emphasized, “employers capable of meeting these requirements must continue to do so.”
What does this functionally mean?
For the vast majority of motor carriers, it means that you still need to hit the minimum thresholds since there was only a limited time when clinics were unavailable due to the pandemic (our network of over 20,000 clinics showed only a 5% unavailability at the height of the pandemic closures). However, if you suspended testing during the closures, you just need to articulate why and have that available if audited.
For carriers who work only in regions with profound and longstanding pandemic clinic outages, you need to document thoroughly if you are unable to meet the requirement by the end of the year. I recommend that you obtain statements from your clinic network to support your allegations since FMCSA is using the term “agency discretion.” The more you can have documentation that your regional clinic network could not provide the needed service, the better it is for you to have the discretionary decision fall in your favor.
To read the entire notice, please see the below link.