DOT Implements Temporary Drug-Testing Waiver

The U.S. Department of Transportation (DOT) has implemented a limited drug-testing waiver for commercial drivers that will last until Sept. 30. The waiver, announced June 5 and effective immediately, is intended to provide temporary regulatory relief from the administrative and cost burdens of pre-employment drug testing for furloughed drivers.

Many employers have furloughed drivers and removed them from the random pool for controlled substances and alcohol testing for a period greater than 30 days, the DOT noted.

Typically, DOT rules would require a pre-employment drug test after a commercial driver has been out of the random-testing pool for 30 days or more, but the waiver now extends that period to 90 days, explained Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

DOT Requirements

Kathleen Connelly, an attorney with Lindabury, McCormick, Estabrook & Cooper PC in Westfield, N.J., and Red Bank, N.J., noted that, under DOT regulations, all drivers with commercial licenses must pass drug and alcohol tests before being allowed to drive vehicles:

• With a gross weight rating of 26,000 pounds or more.
• That transport hazardous materials or 16 or more passengers, including the driver.

"This requirement applies any time a driver is returning from a furlough or layoff," she said.

Drivers are exempt from these testing requirements if they participated in a compliant random drug-testing program within the previous 30-day period and tested negative for controlled substances within the past six months, or if they participated in a random-testing pool in the previous 12 months with no positive results, said Nancy Delogu, an attorney with Littler in Washington, D.C.

The new DOT waiver allows employers to forgo drug testing for drivers who were in a testing program within the previous 90 days. "But those drivers still must have been in the [random-testing] pool for at least 12 months prior to the change, with no positive results, or have received a negative test result in the last six months," Delogu said.

Certain requirements still must be met despite the temporary drug-testing waiver, Connelly cautioned. Employers of commercial drivers relying on the exemption must continue to verify that the driver has no recorded violations of DOT controlled-substance-testing regulations within the prior six months. These employers also must conduct a pre-employment search of the DOT's national Drug and Alcohol Clearinghouse, which became operational on Jan. 6, to identify drivers who have violations.

In addition, employers must continue to conduct background investigations for returning workers in accordance with DOT regulations, Connelly said.

Will Employers Use the Temporary Waiver?

As a practical matter, most employers do not have access to information about whether drivers have participated in a random-testing program prior to hire, and so the employers conduct the tests, Delogu said. "Employers might not have the resources to track down each driver who has been separated to determine how many days they have been out of the pool, how long it will take to schedule a new test, and whether the driver meets either the 12-month participation or six-month test condition," she said. Those employers may choose to continue with their standard plan, she said.

Many employers may not have dropped drivers from their random pool during the pandemic, Delogu said, so, for them, the temporary waiver is unnecessary.

But for employers that separated drivers, removed them from the random pool or ceased random testing altogether, the standard rule would require a new prehire test for affected drivers before they begin performing regulated work again, Delogu said. "This waiver will allow employers to simply reinstate a large number of drivers without first obtaining a new prehire test," she stated.