Some employers will say they don’t really worry about random selection or testing because they contracted this process out to a third party administrator (TPA). So, should I worry?
Yes, as an employer you do need to know what the Department of Transportation (DOT), and especially the Federal Motor Carrier Safety Administration (FMCSA) have to say about random testing.
Here are some statements by naïve employers:
- We pick all of our random selections for the whole year in January and then use that list for random testing throughout the year.
- We conduct two (2) selections a year.
- We select on a quarterly basis; if someone is not available to be tested in the quarter they are selected, we make sure to get them tested by the end of the year.If an individual is not available (not on site, or performing a task that prevents that individual from coming to the collection site for testing on the day a collector arrives), we pick an alternate person.
Lets start from the beginning and ask the question – What is the purpose of random testing?
DOT’s intent in establishing a random drug and alcohol testing program was to deter individuals in safety-sensitive positions from using illegal drugs and misusing alcohol. The bottom line was that if an individual did not know when and where he/she could be tested for drugs or alcohol, this would encourage them not to use these substances, prevent potential job loss, and improve public safety.
The corner stones of this program are:
- Each person in the random testing pool must have an equal chance of being selected.
Selection is done with replacement (if a person is selected and tested, his/her name goes back into the pool). - Testing must be spread evenly through out the year.
- Times when testing is conducted should not be predictable.Selection time may not be longer than 3 months, i.e., one quarter (FMCSA).
This seems pretty straightforward, but implementation sometimes gets pretty hairy. Here are some best practices:
- Do Not select a year ahead of time. If you make your selection in January, then anyone hired after that during the rest of the year would not be subject to testing. Remember, anyone performing safety-sensitive functions must have an equal chance to be picked for a random test. Note: Even with quarterly selections there will be situations where an individual is hired right after the quarterly selection and even if his/her name is placed into the random pool, that individual will not be tested that quarter. DOT is aware of this wrinkle in the process, but considers it a reasonable compromise. Just make sure that all new safety-sensitive employees are immediately placed in the random testing pool and, of course, remove those who are no longer performing these functions or have left your employment. Leaving these individuals in the pool “dilutes” it and may subject you to monetary fines during an audit.
- If someone is not tested during the selection cycle, you cannot test that person during the next selection period. If the individual was not tested, then his/her name goes back into the pool for the next selection time frame.
- Do test the individual anytime during the selection time frame. This means that as an employer, you know when that individual will be available for a test. You know the work schedule, when the individual will be on leave, etc. It is up to you to ensure that this individual is tested during the selection window. And NO, you can’t just substitute someone else because they are more readily available to be tested. Reminder: DOT will want to see written documentation why the selected individual was not tested. Did not get around to it, is not going to be a reason they will accept.
- If you know that an individual will be on extended sick leave you can skip selecting this individual if you know he/she will be gone throughout the entire testing period and select another alternate individual from the pool using a scientifically approved method. Or, you can set aside this individual’s name until that person comes back from extended leave, and you can conduct the test at that time, provide the individual returns before the next selection.
- You cannot require an individual to report for a test in the middle of vacation time, while sick, or on other types of excused leave. You can call the individual in for work and then conduct a test.
Lets look at a few other issues that come up frequently.
Notification: When and how do you do this? Basically, random testing is “short notice” type of testing. You should not give the selected individual excessive notification time that he/she must go for a test. For example, you should not call the individual at the beginning of his/her shift and indicate that he/she is to report to a clinic for a drug test at the end of the shift. This only provides the individual with time to drink copious amounts of water to dilute the specimen, obtain products to adulterate the specimen, or obtain substituted urine specimens.
DOT directs employers to ensure that once a selected individual is notified, they must proceed immediately to the collection site. “Immediately,” in this context, means that all the individual’s actions, after notification, lead to an immediate specimen collection. So, as an employer, if you know that an individual will not be able to leave the work site immediately, don’t make the notification until such time when the individual can secure his/her worksite and is able to go to the collection site. The definition of “immediately” should be clearly spelled out in the employer’s drug and alcohol testing policy. For example, if your collection site is within five minutes of your work site, you should clearly indicate in your policy that when individuals leaves to go to the collection site, they must get there within 10 or 15 minutes, other wise it will be considered a refusal. In a previous article, it was pointed out that only rare and documented incidents should be accepted by the employer as legitimate excuses for not showing up at the collection site within a reasonable time.
Finally, what about alcohol testing? There are some different requirements for random alcohol testing. An individual is subject to random alcohol testing only while performing safety-sensitive functions, just before performing safety-sensitive functions, or just after performing these functions. Performing a safety-sensitive function includes being immediately available to perform such functions. This means that although an individual may be performing clerical duties, if he/she is on call (i.e., ready to perform) they may be subject to a random alcohol test, even if they are not at that time performing safety-sensitive functions. Once again, make sure you have this clearly explained in your policy.
Employers need to be aware of the fact that testing for alcohol should not be confined only to testing before the individual starts a safety-sensitive function. Some tests should be scheduled during the shift and others when the individual finishes the safety-sensitive duty. Randomness and unpredictability are the corner stone of a good random alcohol testing program.
Of course, it goes without saying that only individuals in safety-sensitive positions should be in the random pool. You cannot mix DOT and non-DOT personnel in the same testing pool. You can have one random testing pool for both drugs and alcohol provided you have documentation of how the process works and that the method is scientifically valid and impartial regarding who gets selected. You can have two separate pools (one for drugs and one for alcohol testing) or if you have one pool, you can first select individuals for drug testing, and then conduct another selection for alcohol testing. You could also select the first 20 percent of the individuals selected for drug testing to also be subject to alcohol testing. Bottom line is – documentation!