Three-Month Waiver in Response to the Economic Consequences of the COVID-19 Public Health Emergency – To Relieve Employers of Commercial Motor Vehicle Drivers Subject to 49 CFR Part 382 from Certain Pre-Employment Testing Requirements
FMCSA has issued a new waiver that extends the period under which drivers qualify for the pre-employment testing exception under 49 CFR 382.301(b) from 30 days to 90 days. This relief will 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.
SUMMARY: FMCSA grants a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery, issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019 (COVID-19) public health emergency.
DATES: This waiver is effective June 5, 2020, and ends on September 30, 2020.
Due to the limited scope of this waiver and the ample precautions that remain in place, FMCSA 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. 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. Waiver determinations are made holistically, taking all relevant factors into account. See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). For example, in these circumstances, it is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).
Section 382.301(b) sets forth the following conditions a driver must meet to be excepted from pre-employment testing:
(1) The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of [part 382] or the controlled substances use rule of another DOT agency within the previous six months.
FMCSA finds that extending the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b)(1), from 30 to 90 days, will not negatively impact safety. The existing requirement that an employer relying on the § 382.301(b) exception must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months remains in effect. Moreover, employers must conduct a pre-employment query of the Clearinghouse for returning drivers, as required by § 382.701(a). The Clearinghouse, which became operational on January 6, 2020, enables employers to identify drivers, including furloughed drivers, who have committed an FMCSA controlled substances and alcohol testing program violation that renders them ineligible to perform safety-sensitive functions. Such drivers are prohibited from performing safety-sensitive functions until completing the return-to-duty process, as set forth in 49 CFR part 40, subpart O. The Clearinghouse provides employers with a useful new tool for identifying drivers’ drug and alcohol program violations that did not exist at the time the Agency enacted the 30-day limit for the exception in § 382.301(b). Further, employers must continue to complete a background investigation on returning or prospective drivers’ controlled substances and alcohol testing history with all DOT-regulated employers that employed the driver within the previous 3 years, in accordance with 49 CFR §§ 40.25, 382.413, and 391.23.