b' Marketer InformationRules & RegulationsCOVID-19 Pandemic Has Complicated EverythingW All employers must continue to select drivers for random testing Washington, D.C.To say that 2020 hasat the required 50% rate of average number of driver positions been thus far an unwelcome year for thefor controlled substances and the 10% rate for alcohol dur-petroleum marketing industry is an un- ing calendar year 2020. However, if a random test cannot be derstatement. The COVID-19 pandemiccompleted due to the COVID-19 public health emergency, the has complicated everything. Everydayemployer may qualify for enforcement discretion. Examples of life from social relationships to businessinability to comply to drug and alcohol testing requirements due activity has been altered. Businesses haveto COVID-19 include:Mark S. Morgan, Esqshuttered, consumers are staying home, Closure or restricted use of drug and alcohol testing facilities,PMAA Regulatoryjobs have evaporated and economic Counsel activity has plummeted. Nothing looks Unavailability of drug and alcohol testing personnel,the same or feels the same. Our attention is distracted by family health concerns, Prolonged or intermittent driver furlough,economic disruption and just trying toOther applicable COVID-19 related reasonsnavigate a new, unfamiliar world.for noncompliance.While our attention has been elsewhere in recent months, the fed- Employers requiring enforcement discretion for the annual eral regulatory landscape has undergone enormous change. Newrandom drug and alcohol testing rates and/or the requirement regulations have been pushed out at breakneck speed. Some rulesfor the even administration of random testing throughout the mandated by Congress impose new compliance burdens on mar- calendar year, must maintain written documentation explaining keters while others provide temporary and permanent relief fromthe specific reasons for non-compliance. The written docu-existing regulations. The speed at which these regulatory changesmentation should include; identification of closed or restricted have occurred has been daunting. COVID-19 related slowdowns,testing facilities and dates of closure or restriction; actions taken closures and social distancing make timely compliance moreto identify alternative drug and alcohol testing facilities; length complicated, difficult and in some cases, more expensive. Nowand number of driver furloughs (if any); and other applicable that things are returning to near normal, for now, it is worth mo- COVID-19 related reasons for noncompliance.mentarily shifting attention to some of the more important regula-tory changes that transpired during the COVID-19 disruption. The required written documentation must be detailed, written contemporaneously and included with company drug and alco-hol testing records. For complete details go to: www.fmcsa.dot.1. Random Drug and Alcohol Testing gov/emergency/fmcsa-covid-19-drug-alcohol-testing-guidance.Enforcement DiscretionThe Federal Motor Carrier Safety Administration (FMCSA)2. Expiring Hazardous Material Endorsement announced in July that it is exercising conditional enforcement discretion for employers unable to comply with FMCSA randomRenewal Reliefdrug and alcohol testing requirements due to COVID-19 relatedThe Transportation Security Administration (TSA) issued a testing and lab processing limitations. The FMCSA may chooseregulatory waiver in July that allows states to extend the validity not to enforce the following calendar year 2020 random drug andof expired or expiring hazardous material endorsements (HMEs) alcohol testing requirements for qualifying employers: through October 29, 2020. The TSA issued the waiver becauseThe 50% minimum annual random testing rate for controlledmany drivers are having difficulty renewing expiring HMEs due to shortened hours of operation or appointment only process-substances (49 CFR 382.305(b)(2)), ing at state motor vehicle registration departments. The waiverThe 10% minimum annual random testing rate for alcohol (49issued by the TSA is actually a temporary exemption fromCFR 382.305(b)(1)), federal rules requiring drivers to first undergo a security threatThe requirement that each employer ensure the dates for admin- assessment (STA), including background checks and finger-printing, before renewing a state issued HME. By removing the istering random drug and alcohol tests are spread reasonablySTE precondition, states are in turn, able to extend the valid-throughout the calendar year. (49 CFR 382.305(k)(2)). ity of expiring HMEs during the COVID-19 emergency. The 36 www.wpma.com / Autumn 2020'