COVID-19: Drug Testing & Return to Work Plans
As employers across the nation begin the process of reactivating their workforce, they must develop and implement appropriate policies and procedures that follow Federal, State, and local regulations, guidance, and industry best practices. As an employer in our country, you must provide a safe and effective workplace for your employees. Section 5(a)(1) of the Occupational Safety and Health Administration's (OSHA) Occupational Safety and Health Act dates back to 1970. The General Duty Clause states: "Each employer shall furnish to each of his employees' employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
The Center for Disease Control and Prevention (CDC) has released and continues to update guidance for employers in response to COVID-19. As of May 6th, 2020, the CDC provided interim guidance to help prevent workplace exposures to COVID-19 in non-healthcare settings.
In following guidance from the White House, the CDC advises that employers should develop a phased approach based on current levels of transmission and healthcare capacity at the state or local level, as part of resuming business operations. Business operation decisions should be based on both the level of disease transmission in the community and your readiness to protect the safety and health of your employees and customers.
Employers are encouraged to coordinate with State and local health officials to obtain timely and accurate information to inform appropriate responses. Local conditions will influence the decisions that public health officials make regarding community-level strategies. CDC has guidance for mitigation strategies according to the level of community transmission or impact of COVID-19.
As an employer, if your business operations were interrupted, resuming normal or phased activities presents an opportunity to update your COVID-19 preparedness, response, and control plans. All employers should implement and update as necessary a policy that:
- Is specific to your workplace;
- identifies all areas and job tasks with potential exposures to COVID-19; and
- includes control measures to eliminate or reduce such exposures.
Talk with your employees about planned changes and seek their input. Additionally, collaborate with employees and unions to effectively communicate critical COVID-19 information.
The CDC guidance provides strategies and recommendations for employers responding to COVID-19 in an effort to resume normal or phased business operations, including:
- Updated cleaning and disinfection guidance
- Updated best practices for conducting social distancing
- Updated strategies and recommendations that can be implemented now to respond to COVID-19
- Conducting daily health checks
- Conducting a hazard assessment of the workplace
- Encouraging employees to wear cloth face coverings in the workplace, if appropriate
- Implementing policies and practices for social distancing in the workplace
- Improving the building ventilation system
Employers are also cautioned to consider the Equal Employment Opportunity Commission (EEOC) and the Americans with Disabilities Act (ADA) requirements to avoid claims of discrimination.
As a cornerstone to ensure safety in our workplaces, drug testing plays a critical role and must continue even during times of a national emergency. For employers with non-regulated employees, they must first review their substance abuse screening policies. Testing during a time of pandemic is abnormal and does not conform to a standard "testing event type" like that of pre-employment or random testing. Employers should review the details of their policy to determine if it includes any requirements for retesting after an employee has been out of the workplace for a specific amount of time. Employers should also look to state laws to determine if there are any restrictions or limitations on when a drug test can be conducted outside of reasonable suspicion or post-incident situations.
Federally Regulated Positions
The Department of Transportation (DOT) is committed to maintaining public safety while allowing transportation industries to operate safely during this period of national emergency. Employers must continue to comply with DOT testing and training rules for all regulated employees conducting safety-sensitive functions, in accordance with 49 CFR Part 40. Regulated testing includes pre-employment and return-to-duty screening in which a negative drug test result must be on file before any regulated work can be performed.
With potential limitations or unavailability of collection sites or drug screening service providers, employers are recommended to consider mobile collection options where needed. If employers 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, they must continue to comply with existing applicable DOT Agency requirements to document why a test was not completed. If required 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. Employers are reminded that for any employee that, for whatever reason, cannot comply with DOT regulations, should be prohibited from performing any DOT safety-sensitive functions.
Employers should revisit contingency plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include the availability of collectors and collection sites, 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.
Additional guidance on compliance with DOT drug and alcohol testing regulations during these challenging times can be found here.