FMCSA & Discretion in Enforcing Random Drug Testing Requirements

Gallagher Sharp LLP By Gallagher Sharp LLP

The FMCSA Drug & Alcohol clearinghouse has been functional since January 2020. The clearinghouse is an online database which tracks drug and alcohol tests administered to commercial drivers in a uniform place. According to the FMCSA’s most recent report, there are 114,947 motor carriers registered in the clearinghouse, 35,532 of which are registered as owner operators. As of May 2020, there were 905,307 inquires into the clearinghouse with a total of 21,167 violations pertaining to drug and alcohol testing. Positive drug tests accounted for 80% of the violations reported. Marijuana positive drug tests numbered more than those for cocaine, meth and amphetamines combined, with possible overlap between substances. The clearinghouse is accessible by clicking here.

On July 6, 2020, the Federal Motor Carrier Safety Administration issued a “Notice of Enforcement Discretion Determination: Random Controlled Substance and Alcohol Testing,” in light of the difficulty some motor carriers may face in complying with certain drug and alcohol testing requirements in light of the COVID-19 public health emergency. This notice impacts motor carriers who are unable to comply with random drug and alcohol testing requirements. Due to the COVID-19 situation, the FMCSA will not be strictly enforcing the minimum drug testing rules because some motor carriers may be unable to comply with certain testing requirements due to the ongoing impacts of the COVID-19 situation.

Motor carriers are still technically required to randomly select and test drivers at the rate required under 49 CFR § 382.305(b)(1) and (2) – 50% of their average number of drivers for drug testing; and 10% of their average number of drivers for alcohol testing. However, motor carriers are now permitted to provide written documentation citing specific reasons for non-compliance if testing is not completed due to circumstances brought about by the COVID-19 public health emergency. For example, employers should document closures or restrictions upon testing facilities or the unavailability of testing personnel. Motor carriers are also advised to document actions taken to identify alternative testing sites or other testing resources. Motor carriers are also still technically required under 49 CFR § 382.305(k) to ensure random drug and alcohol testing is conducted at reasonable intervals throughout the year.

Motor carriers are now permitted to provide written documentation as to the specific reasons why they did not meet this requirement if it is not possible to do so. For example, there may be prolonged or intermittent driver furloughs which prevent a motor carrier from meeting this requirement.

Importantly, the notice is not to be construed as suspending the random test requirements. The notice only applies to motor carriers who cannot comply with the requirements due to the impacts of the COVID-19 public health emergency. The FMCSA emphasizes that motor carriers capable of meeting these requirements must continue to do so.

The complete notice is available and can be found here.