Drug & Alcohol Testing During a Recession

Now that almost everyone acknowledges that we are in a recession – with no real immediate outlook for improvement – employers are asking themselves what they can do to survive until the economy improves. Many companies have laid off workers, substantially decreased their workforce hoping to survive the recession. As mentioned in the January Federal Corner, some employers think they may save a few dollars by decreasing their DOT drug and alcohol testing or not testing at all.

Unfortunately, the Feds are not very sympathetic to companies ignoring Federal rules even if complying may mean a company cannot meet its financial obligations and may go under. Saving a couple of hundred dollars by not testing may give an employer a false sense of hope. However, during an audit if it is discovered that a safety-sensitive employee was to be tested, but was not, the employer may face a fine in the thousands of dollars.

Where is all of this leading? A number of employers are concerned because their safety-sensitive pool of employees has decreased substantially, thus changing the number of employees that are subject to testing. Additionally, some employers hope to increase their workforce near the end of this year, again changing their testing pool numbers significantly.

Bottom line is that many employers see the number of safety-sensitive employees fluctuating greatly during the year, creating some administrative problems in how to meet the minimal testing requirements dictated by the government.

To a large degree, those employers who are part of a consortium and have a Third Party Administrator (TPA) managing their random testing program, probably will not see much change in how their procedures work. There may be a decrease in the number of random tests conducted, but that will be based on the fact that many companies in the random testing pool are also downsizing and have fewer safety-sensitive employees. The most critical item is for the employer to ensure that as the workforce numbers change, these are provided to the TPA as quickly as possible so that the number of individuals in the pool truly reflects who is still subject to testing – otherwise, the selection numbers will be diluted and potentially subject the TPA and the companies it supports with non-compliance. Bear in mind that we are talking about random testing; pre-employment, reasonable suspicion, post-accident, return-to-duty, and follow-up testing. All which need to be accomplished as required – there is no way of decreasing these types of tests.

Problems arise if a company has the TPA maintain a separate random testing pool for that company or the company maintains one itself. Back to what was stated in the beginning of this article, how do you as a company account for the large fluctuation of employees subject to testing and still maintain the proper testing rate? This really is no different than the issue of seasonal drivers, e.g., school bus drivers. The Federal Motor Carrier Safety Administration (FMCSA) has, in the past, provided guidance on how to handle these situations. A short recap may be useful.

HOW TO COMPUTE THE AVERAGE NUMBER OF SAFETY-SENSITIVE POSITIONS FOR RANDOM TESTING?

A company random testing program (or one operated by a TPA) should take into account fluctuations in the number of safety-sensitive employees by estimating the number of random tests that must be performed over the course of a calendar year. If the workforce is expected to be relatively constant, then the number of tests to be performed in a year could be determined by multiplying the average number of employees by the testing rate.

However, because of economic factors, if you downsized in the early part of this year, but are forecasting a substantial increase near the end of the year, you must base your testing rate on the number of employees eligible to be tested at the time of each selection period. However, the total random tests conducted for the year must equal or exceed the average number of employees.

Here are a few examples used by the FMCSA to help explain this process (based on a 50% testing rate for drugs). If an employer performs random selections four times a year, the number of tests performed during each of the four testing periods must equal or exceed 50 percent of the number of safety-sensitive employees eligible to be tested (D), divided by the number of test periods per year (P). This can be expressed as:

T = 50% X D/P

T = Total random tests
D = Employees eligible to be tested
P = Number of test periods per year

Continuing this example: at the time of selection, the company determines that there were an average of 60 safety-sensitive employees eligible for testing during the first quarter of the year, 80 employees in the second quarter, 100 employees in the third quarter, and 70 employees in the fourth quarter. Using the formula above, you would have to perform 8 tests in the first quarter (50% times 60 divided by four equals 7.5, rounded up to the nearest whole number), 10 tests in the second quarter, 13 in the third quarter, and 9 in the fourth quarter, for a total of 40 tests.

Since it is difficult to project how many employees eligible for testing will be on hand later in the year, it is advisable to use the above example rather than trying to estimate the testing rate for the whole year during the first or second quarter. One thing to remember when there are large fluctuations in the number of employees eligible for testing. With a large turnover over the course of the year, a company may be employing more individuals than there are actual safety-sensitive positions. In determining the number of tests, the company should use the number of safety-sensitive positions, not the number of actual individuals employed in these positions during the selection period.

This may sound confusing, but here is an example that will clarify the process. When the first quarter selection is made on January 1, there were 60 safety-sensitive positions and all were filled. During the first quarter, 10 employees quit and were replaced by 10 new employees. Although the company had a total of 70 different employees working in these positions, at any one time only 60 were employed and that is the number used for calculating the testing rate.

During high fluctuations of employees is it better to conduct selections more often than on a quarterly basis? Probably, since it may be easier to manage the testing rate more accurately over a shorter time frame, especially if there is a projected and ongoing reduction in force or a dramatic increase.

While on the subject of random testing, just a couple of reminders. Under FMCSA rules/guidance, when drivers are off work due to long-term layoffs, illnesses, injuries, or vacations, will not return before the next selection, and are selected for random testing, there are two options open to the company:

The driver’s name could be skipped if the driver selected is going to be gone throughout the entire testing period. An alternate may be selected using a scientifically valid method.
The name could be set aside until the driver comes back from the extended leave, and the test would be conducted at that time, as long as the driver returns before the next selection is made.

Hopefully, the above information will help some employers weather the complexities and frustrations of carrying out a myriad of Federal rule requirements while at the same time fighting a battle with the current recession. One constant reminder: don’t cut corners where Federal rules, especially those related to safety, are concerned. In the long run, it will cost you more than if you just did what was required – and did it correctly.