CTA: FMCSA Relief from Certain Pre-Employment Testing Requirements

FMCSA has issued a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. The waiver effective June 5, 2020, and ends on September 30, 2020.

Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safety- sensitive functions for an employer, the driver must undergo pre-employment testing for controlled substances and the employer must receive a verified negative controlled substances test result for that driver from a medical review officer or a consortium/third party administrator. This requirement also applies each time a driver returns to work after a furlough, lay-off, or other period of unemployment when the driver does not continue to be subject to random controlled substances testing in accordance with 49 CFR 382.305.

Section 382.301(b) provides an exception allowing an employer to forgo administration of a pre- employment test if the driver has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while participating in that program, the driver either: (i) was tested for controlled substances within the past 6 months or (ii) participated in the random controlled substances testing program for the previous 12 months. In addition, under the exception, the employer would be required to ensure that no prior employer of the driver has records of a violation of 49 CFR part 382 or the controlled substances use rule of another DOT agency within the previous six months.

As FMCSA notes, “as employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.”

With this in mind, the waiver extends this from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would 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.

FMCSA has said that, allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will “provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.”

Note that there are several terms, conditions, and restrictions associated with the waiver. The Canadian Trucking Alliance (CTA) encourages all carriers that are subject to FMCSA Drug and Alcohol testing requirements to read the full waiver here:

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