We, as a Nation, are facing an unprecedented public health emergency that is straining medical resources and altering aspects of American life, including the workplace. The Nation’s transportation industries, which are not immune to the impacts and disruptions resulting from the spread of COVID-19 in the United States, are playing a vital role in mitigating the effects of COVID-19.

DOT is committed to maintaining public safety while providing maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.

The below guidance on compliance with the DOT and modal drug and alcohol testing programs apply during this period of national emergency.

For DOT-Regulated Employers:

• As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP). You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available.
• If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations. Links to the modal regulations and their respective web pages can be found at https://www.transportation.gov/odapc/agencies.
• If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, 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, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).
• Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment. Employers should review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
• As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
• Employers should revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency. Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.

For DOT-Regulated Employees:

• If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
• If you have COVID-19-related concerns about testing, you should discuss them with your employer.
• As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).

For Service Agents:

• As a collector, BAT, laboratory, MRO, or SAP, you should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with State or local mandates related to COVID-19. Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from State and local officials, and guidance from the Centers for Disease Control and Prevention (CDC).

You are encouraged to continue to monitor guidance from public health officials and to refer to official government channels for additional information related to COVID-19. The CDC provides helpful guidance and insight from medical professionals who closely monitor the virus. Click here to access the CDC latest updates (https://www.cdc.gov/coronavirus/2019-ncov/index.html). Also for reference, the Occupational Safety and Health Administration has released guidance on preparing workplaces for COVID-19
(https://www.osha.gov/Publications/OSHA3990.pdf)

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Set to take effect on September 29, 2019, Illinois employers should be aware of the new law’s provisions in order to adjust their hiring practices before this September.

Once effective, Illinois employers will be prohibited from:

-Requesting or requiring wage or salary history from an applicant as a condition of being interviewed, considered for a job, or hired

-Seeking a job applicant’s wage or salary history from any current or former employer. (However, this does not apply if the applicant is a current employee seeking another position within the same organization, or if their salary history is available as a matter of public record)

It is not considered a violation if the applicant voluntarily and without prompting discloses their current or prior salary history, so long as the employer does not consider or rely on this voluntary disclosure as a a factor in determining whether to extend a job offer or in determining that individual’s wages/salary upon hire.

Employers who violate this new salary ban could be liable for covering compensatory damages, recover damages (including special damages up to $10,000), compensatory damages, injunctive relief, along with costs and reasonable attorney fees if an affected worker pressed charges.

“We are declaring that one’s history should not dictate one’s future, that no person should be held back from earning their true value because of how much money they were paid in a previous job,” Pritzker remarked during the bill-signing event.

To see more information and details of the bill, you can view updates of the bill here.

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They went on to outline different scenarios in which workplace drug testing is usually permissible, including:

• Random drug testing
• Drug testing under a state workers’ compensation law
• Drug testing under other federal law, such as a U.S. Department of Transportation rule
• Drug testing unrelated to the reporting of a work-related injury or illness

To read more of the memorandum check it out here. Blueline Services works to help keep you updated on any changing laws and statues around the country. If you have any questions regarding this memorandum or how a workplace drug testing incentive program could benefit your company, give us a call at 888-919-8378 or email us at mail@blueline-services.com.

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