With the wrenching and pervasive cessation of normal business and societal activities in the past few weeks, Fox Rothschild has been addressing questions from transportation industry clients concerning their ongoing responsibilities for complying with U.S. Department of Transportation (DOT) drug and alcohol testing requirements during these difficult times.

On March 23, 2020, DOT issued Guidance on Compliance with Drug and Alcohol Testing Regulations.  The Guidance’s stated aim is to “provide[ ] clarity to DOT-regulated employers … on conducting DOT drug-and-alcohol testing given concerns about the Coronavirus Disease 2019 (COVID-19)” and indicates that “DOT is committed to maintaining public safety while providing maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of natural emergency.”

Although DOT’s stated commitment is helpful and appropriate, whether its Guidance provides “maximum flexibility” is debatable.

As a legal matter, the DOT Guidance — as is the case for any government-issued guidance — does not have the force and effect of law, does not bind the public any way, and “is intended only to provide clarity regarding existing requirements under the law”.  That said, the Guidance document specifies that each “DOT-regulated employer”:

  1. Must comply with applicable DOT drug and alcohol training and testing requirements (Note: these requirements apply to employers who employ safety-sensitive transportation workers in the following industries:  aviation, rail, commercial motor vehicles, pipelines, and mass transit operations receiving federal financial assistance).
  2. In the event the employer is “unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments [the employer must] continue to comply with existing applicable DOT Agency [e., “modal agencies” — Federal Aviation Administration; Federal Railroad Administration; Federal Motor Carrier Safety Administration; Pipeline and Hazardous Materials Safety Administration, and Federal Transit Administration] requirements to document why a test was not completed.” (Italics added).
  3. Can, if permitted by modal regulations, conduct training or testing later, “(e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month).”

 The Guidance further specifies that:

If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. [Italics in original].  For example, without a ‘negative’ pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2) [sic]).

Despite the current national emergency, the DOT Guidance offers slight flexibilities but nonetheless reflects business-as-usual for transportation industry compliance with federal drug and alcohol testing requirements.  Left unclear as of this writing is whether any of the DOT modal agencies will relax their enforcement and compliance efforts where warranted.