In early July 2020, the Federal Motor Carrier Safety Administration (FMCSA) provided regulatory relief for motor carriers operating during the COVID-19 pandemic.
On July 6, the FMCSA issued its “Notice of Enforcement Discretion Determination: Random Controlled Substance and Alcohol Testing” to provide “reasonable enforcement flexibility” for motor carriers who “may be unable to comply with certain testing requirements due to the ongoing impacts of the emergency.”
Currently, certain motor carriers are required to randomly test 50% of their average number of drivers for controlled substances and 10% for the presence of alcohol. Additionally, motor carriers are required to spread out the administration of those tests over the full calendar year.
As the motor-carrier industry “continues to experience operational disruptions” caused by COVID-19, the FMCSA announced it “may exercise discretion to determine not to enforce” the annual testing-
rates requirement and the requirement that tests be reasonably spread throughout the year.
Despite this flexibility, employers are still required to select the appropriate percentage of drivers for the random controlled-substances and alcohol testing, regardless of whether they can administer the tests. Additionally, motor carriers that cannot complete the tests due to COVID-19 are required to maintain written documentation identifying the specific reasons they couldn’t comply, such as closures or restricted use of testing facilities or unavailability of testing personnel.
Motor carriers also are instructed to document any alternative actions they attempted to take, such as identifying alternative testing sites or the availability of other testing resources. Furthermore, the declaration calls on employers who cannot spread their testing dates throughout the year to document the specific reasons they couldn’t comply with this requirement, such as the lack of available testing facilities or personnel or prolonged or intermittent driver furloughs.
It is important to note that the FMCSA is still expecting complete compliance with the drug and alcohol testing requirements for all employers capable of doing so.
On July 1, the FMCSA issued a Grant of Waiver “from certain regulations applicable to interstate and intrastate commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders and to other interstate drivers operating commercial motor vehicles (CMVs).”
The FMCSA explains in the waiver, “Several States continue to experience … employee absences or have closed offices of their state driver licensing agencies” in response to stay-at-home and social-distancing orders. Additionally, many medical professionals are canceling appointments in order to focus solely on the COVID-19 response. Many CDL and CLP holders are, therefore, unable to renew their licenses or permits or cannot meet with medical providers to obtain necessary medical certificates.
The Waiver provides regulatory relief for CDL and CLP holders as well as non-CDL drivers from various provisions under the agency’s implementing regulations. These include:
- allowing CDLs and CLPs due for renewal on or after March 1, 2020, to remain valid through September 30, 2020;
- a waiver from the requirement that CLP holders wait 14 days to take the CDL skills test; and
- a waiver from the requirement that CDL and CLP holders and non-CDL drivers have a medical examination and certification, provided they have a valid medical certification and any required medical variance that were issued for a period of 90 days or longer and that expired on or after March 1, 2020.
The Grant of Waiver will remain in effect until September 30, 2020.
On June 15, the FMCSA issued its “Notice of Enforcement Policy Regarding Expiring Driver’s Licenses and Medical Examiner’s Certificates During COVID-19 National Emergency,” which extends the effective date from the agency’s previous March 24 Notice through September 30, 2020.
The Notice announces the “FMCSA will exercise its enforcement discretion to not take enforcement action” against a CLP or CDL holder who operates a CMV with an expired license and/or a CMV driver or motor carrier who allows a CLP or CDL driver to operate a CMV with an expired license, so long as the expired license in question was valid on February 29, 2020, and expired on or after March 1, 2020.
Additionally, the enforcement discretion will be applied when a CMV driver or motor carrier allows a CMV driver to operate a CMV while the driver does not have the current medical certificate and any required medical variance, as long as the driver has evidence of necessary medical documents that were valid on February 29, 2020, and expired on or after March 1, 2020.