Testing Guidance for Returning Furloughed/Laid-off Employees: PHMSA
A returning pipeline safety-sensitive employee does not have to have a DOT pre-employment test so long as the employee has remained in the employer’s random selection pool while laid-off or furloughed . If the employee was terminated and removed from the employer’s drug testing program, including the random testing pool, the employee must have a pre-employment drug test upon his re-hire for a PHMSA-covered position.
Random Drug Testing
Any furloughed or laid-off employee whose name remained in the random pool and who was selected for random testing should be required to report for a random test if he/she returns before a subsequent random selection list was produced. If an employee returns from furlough or lay-off after the period in which his selection took place, and a subsequent random selection list was produced and the employee was not selected, then he/she should not be tested and the employer should retain a record stating that he/she was not available for testing during the selection period due to COVID-19 furlough or lay-off.
Under 49 CFR Part 199.105, there is no requirement that random selection periods be of equal days or months, thus employers have flexibility to adjust random testing selection dates. An employer, for example may have produced a random selection list in QTR 1 in January 2020, and would ordinarily have done a 2nd QTR random selection in April; however with extensive lay-offs and operational shut downs due to the COVID-19 emergency declarations, the employer may reasonably delay random selections until operations are restored and employees recalled from furlough/lay-off status.
The guidance provided by PHMSA related to employers’ compliance with Part 199 testing requirements is very general and essentially states that employers are to continue to conduct required testing and thoroughly document instances where they do not complete testing due to COVID-19 circumstances. PHMSA has stated that its auditors and inspectors will consider enforcement discretion related to compliance with pre-employment and random testing requirements impacted by COVID-19 circumstances.
“Operators who are unable to comply with these regulations should maintain documentation explaining what specific requirements are not being met, how the non-compliance is related to COVID-19, and what alternative measures are being taken to ensure safety. Operators should also communicate with PHMSA’s Office of Pipeline Safety by email at Pipeline-COVIDfirstname.lastname@example.org.”