FMCSA grants waiver for pre-employment testing

Due to the COVID-19 pandemic the FMCSA, an agency of the DOT, has put a three-month waiver into place for certain pre-employment testing requirements. This waiver comes in response to the President’s Executive Order No. 13924, issued on May 19, 2020, Regulatory Relief to Support Economic Recovery. This order from the president had to do with the impact of the COVID-19 public health emergency and the economic consequences forthwith. 

The President’s order advised the branch agencies to “address this economic emergency by … waiving [] or providing exemptions from regulations and other requirements that may inhibit economic recovery consistent with applicable law and with protection of the public health and safety ….”

The Secretary of Transportation has the authority to provide such waivers to the Federal Motor Carrier Safety Regulations (issued under Chapter 313 of Title 49 of the United States Code or 49 U.S.C. §31136) to those who are seeking regulatory relief. They are able to do this without going through the normal process required, that is, without requesting public comment and without providing public notice. The Secretary must make their determination based on the public interest, weighing the level of safety which will be achieved with the waiver versus what would be achieved in the absence of the waiver. Each individual waiver that the Secretary grants may last for a period of up to three months. 

Due to the COVID-19 closures to reduce the spread of the virus many employers have had to impose layoffs, furloughs, or otherwise remove their workers from safety-sensitive functions. These layoffs/removals result in the employee being removed from the random pool for controlled substances testing for a period greater than 30 days. This means that as employers are able to start calling back employees they will have to re-incur the cost of conducting pre-employment testing for the employees returning to the random pool and their safety-sensitive employment.

The FMSCA has determined that the waiver will help to aid the nation’s overall economic recovery by allowing the accelerated return of transport moving across the country. The temporary regulatory relief will also lessen the burden to employers as they try to recover from the impact of the economic challenges caused by the COVID-19 pandemic. 

The waiver extends the period for which drivers are exempt from the pre-employment requirement from 30 days, as written in 49 CFR 382.301(b), to 90 days. This means that as long as a driver had been a part of the DOT’s controlled substance testing program within the last 90 days they will not be required to do pre-employment testing upon re-hire. For the waiver to apply the driver must also have had no violations of any DOT agency’s controlled substances use regulations within the previous 6 months.

These exemptions mean that employers will not be required to take on extra cost and administration burdens at a time when businesses are already spread thin and there is reduced availability to testing facilities due to the pandemic closures. You can read the FMCSA’s full waiver here.

One response to “FMCSA grants waiver for pre-employment testing

  1. Be wary of this “waiver.” It applies in only very limited circumstances. These include that the driver must have either: 1)have been tested in the last 6 months; or 2) have participated in a random drug testing program for the previous 12 months. Obviously, if the driver has been removed from a random program for between 30 and 90 days, they will not have participated in a random drug testing program for 12 months.

    Therefore, the only circumstance in which a carrier can waive the pre-employment drug test for a US driver, is if he or she has been tested in the last 6 months. see 49 CFR 382.301(b)

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