FMCSA issues notice on enforcement discretion for random testing
On Monday, July 6, as the COVID-19 outbreak and the national response stretches on, FMCSA released a notice that the Agency could exercise discretion to determine not to enforce the minimum annual percentage random testing rates for controlled substances and alcohol throughout the year. This Notice is not intended, and should not be perceived, as suspending the current random testing requirements.
Employers must continue to select drivers at the required rate of 50 percent of their average number of driver positions for controlled substances, and 10 percent for random alcohol testing during the calendar year 2020. If a test is unable to be completed due to the COVID-19 public health emergency, the motor carrier must maintain written documentation of the specific reasons for non-compliance. For example, employers should document closures or restricted use of testing facilities or the unavailability of testing personnel. Additionally, employers should document actions taken to identify alternative testing sites or other testing resources.
Similarly, employers who are unable to ensure that the dates for administering random controlled substances and alcohol tests are spread reasonably throughout the calendar year should document the specific reasons why they did not meet this requirement. For example, in addition to the lack of available testing facilities or personnel, there may be other factors, such as prolonged or intermittent driver furloughs due to the impacts of COVID-19.
FMCSA’s Notice (1) acknowledges the current and anticipated disruption to testing, (2) considers the interests of public safety and the need to free up medical supplies for responding to the COVID-19 outbreaks, (3) requires that employers that are capable of pursuing compliance continue to do so, and (4) creates no individual rights of action or establishes no precedent.
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