What are the drug testing requirements for DOT-regulated employees who were furloughed or laid- off during the pandemic?
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. In many ways, you treat it the same way seasonal employers do.
Federal Motor Carrier Safety Administration (FMCSA) Guidance (link)
- If driver considered to be an employee of the company during an extended (layoff) period, and included in the random testing program during this period, a pre-employment test would not be required
- If driver not considered an employee of the company at any point during the layoff period, or was not covered by a program, or was not covered for more than 30 days, then a pre-employment test would be required.
Federal Aviation Administration (FAA) Guidance (link)
- An employer is not required to conduct a pre-employment drug test and have a negative result prior to returning an employee to work after an extended absence or furlough.
An employer may conduct a pre-employment test when the following criteria are met:
- The individual previously performed a safety-sensitive function for you and is not being rehired or transferred into a safety-sensitive function;
- The employee was removed from the random testing pool for reasons other than a verified positive test result on an FAA-mandated drug test or a refusal to submit to such testing; and
- The individual will be returning to the performance of a safety-sensitive function
- If an employer’s policy is to remove employees from the random testing pool while on an extended absence or furlough, we believe it is a best practice to conduct a pre-employment test and have a negative result if the absence or furlough lasted longer than 60 days.
Now a new wrinkle.
The FMCSA issued a waiver on June 6, 2020 entitled “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.” Read it here.
The gist of it is furloughed drivers do not need a pre-employment drug test when re-hired under certain conditions. The conditions are complex, so if you want to take advantage of this rare exception from the FMCSA, you’ll want to make sure you understand it. Our clients were advised not to remove drivers from the pool if they were expected to return before the end of the quarter, so this does not really apply to them.
For employers that did remove drivers from the random testing program, we would advise that they receive a pre-employment drug test regardless of what the waiver says. Many who were out of work recently got into some bad habits. You would also need to conduct a pre-employment Clearinghouse query. Need help with the Clearinghouse?