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.

2008 Year in Review: What's to Come in 2009?

Now that 2008 is over, many of us are breathing a sigh of relief – and hoping that 09 will be better. Last year was tough for most employers: some had lower sales, some had to downsize, and others flat out went out of business. A few employers even wondered if they could cut corners on some of the Federal requirements – like drug testing (not recommended) – and save some money. Bottom line – it was rough for everyone, but some interesting things did happen and there are more to come.

In 2008, the Federal Corner addressed a myriad of subjects that should have been of interest to most employers. For those with short memories, here is a brief recap of what was discussed:

January – Record Keeping
February – Testing for Other Drugs
March – Possessing a CDL – Does That Require Automatic DOT Testing?
April – When is Random Testing Random?
May – DOT Guidance for Employers
June – Authorization to Comply with State Reporting Requirements
July – Mandatory Specimen Validity Testing
August – Pre-employment Testing and Employer’s Responsibility To Ask
September – Suspension of Direct Observation for Return-to-Duty and Follow-up Testing
October – Alcohol Testing by Law Enforcement Personnel
November – Hire/Fire Issue and Mine Safety & Health Administration Proposed New Rule
December – Holidays and Drug Testing

If your interest is peaked by some of these and you want to review some of these issues, they are in the archives.

WHAT HAPPENED IN 2008?

Well, DOT published a rule requiring mandatory specimen validity testing by all laboratories conducting DOT testing. In addition, because of the prevalence of prosthetic devices, DOT required that all directly observed (DO) collections include employees raising their shirt and lowering pants/skirts to mid-thigh. Additionally, DOT directed that DO collections for return-to-duty and follow-up be conducted using this new procedure (prior to this, DO was an employer option for these types of collections).

As of this writing, based on a legal challenge, the courts have “stayed” the requirement for mandatory DO collections for return-to-duty and follow-up. A final resolution should be coming within the month.
In an attempt to streamline some of the more complex processes, DOT stated that during an invalid result Medical Review Officer (MRO) review, an employee admission of adulterating or substituting a specimen is now a refusal to test. Also, pursuant to MRO requests, the rule closed the potentially endless loop on invalid specimen results. Employees requiring negative results (for example, pre-employment tests), when they have medical reasons for providing invalid results, will be able to obtain them through medical evaluations to rule out signs and symptoms of drug use. This may not sound like much, but it will make the whole process easier to manage.
DOT also developed a printable on-line hand out for collectors/observers describing how the new DO collection process should work. In August they also revised the Urine Specimen Collection Guidelines to reflect these new changes.

Although not directly related to the Drug and Alcohol Testing Program, the Federal Motor Carrier Safety Administration (FMCSA) published in December a final rule (effective January 30, 2009) that will have a definite impact on the whole highway industry. FMCSA amended their rule to require interstate commercial driver's license (CDL) holders subject to the physical qualification requirements of their regulations to provide a current original or copy of their medical examiner's certificates to their State Driver Licensing Agency (SDLA). They also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the self-certification the driver made regarding the applicability of the Federal driver qualification rules and, for drivers subject to those requirements, the medical certification status information specified in this final rule.
FMCSA also published a Notice of Proposed Rulemaking (NPRM) to establish a national registry of medical examiners. This will have a definite impact on how the process works and you are encouraged to review the NPRM and comment on this important proposed change to 49 CFR Parts 390 and 391 (Federal Register Notice, Docket Number FMCSA–2008–0363, RIN 2126–AA97). Comments should be submitted by January 30, 2009.

Additionally, on December 16, 2008 FMCSA published a final rule “New Entrant Safety Assurance Process”. This rule, effective February 17, 2009, amended the existing new entrant safety assurance regulation by raising the standards of compliance for passing the new entrant safety audit. A company must now meet 16 regulatory requirements (instead of the previous 11) that are essential elements of basic safety management control and failure to comply with any one of these, is an automatic failure of the safety audit. This includes a single occurrence of any of the following: failure to implement an alcohol/drug control testing program; using a driver know to have an alcohol content of 0.04 or greater, or who has refused an alcohol or drug test, or who tested positive for a controlled substance, and failure to implement a random drug and alcohol testing program. FMCSA is required to audit within 18 months each motor carrier owner/operator granted new operating authority.

And finally, on November 25, 2008, the Department of Health and Human Services (HHS) published the Revised Mandatory Guidelines for Workplace Drug Testing Programs effective May 1, 2010. Why would employers subject to DOT testing requirements be interested in this? Because changes by HHS to any technical aspects of drug testing have a direct impact on DOT.

These are not the only Federal rules that were initiated in 2008, but these are the ones that will have the most impact of employers who are required to conduct drug and alcohol testing under DOT regulations. So, as you can see, 2008 was a busy and productive year.

WHAT DOES 2009 HOLD FOR US?

One thing is for sure, times will continue to be hard and most employers will struggle to survive. Regardless, you will still have to meet all of the Federal requirements – safety, drug/alcohol testing, record keeping, etc. But, what does the future hold for the drug and alcohol testing program? Drug/alcohol testing is here to stay – it will not go away. Specimen validity testing is a done deal; labs are required to conduct these tests and employers must request them as part of their contract for services. The direct observation procedure (raising the shirt and lowering pants/skirts) is here to stay; the only question will be: will it apply to return-to-duty and follow-up tests?

The big change in 2009 may be that HHS will finally come to grips with some alternative specimen testing procedures, i.e., saliva testing or sweat testing. When the technical procedures are finally ironed out and these alternatives are scientifically acceptable, you will see DOT accepting the same procedures and hopefully making your life a little easier.

And finally, the Department of Labor, Mine Safety and Health Administration, had proposed an extensive drug testing rule for their industry. After the dust settles, there will be some type of Federal program in that industry and in many ways it will mirror the DOT program. So employers who are mine operators may want to become very familiar with the DOT requirements since most of these will eventually have an impact on their operations.

Lets hope that 2009 is a better year than 08 and that everyone will prosper. Just remember – don’t cut any corners where drug and alcohol testing is concerned; it will only cost you more in the long run.

Are You a Grinch Employer?

DRUG/ALCOHOL TESTING AND THE HOLIDAY SEASON;
Are you going to be a “Grinch” employer?

Note: Although this is not a specific Federal issue, the following applies to both Federal and non-Federal programs.

Yes, the year is coming to a close. Time to close the books, estimate the damage/profit for this year, and maybe end the year with a couple of company parties to keep employees happy – instead of giving bonuses. Drug or alcohol test anybody at this time? Why? The year is almost over, you have met your random testing quota, and besides, who would be doing drugs during Christmas?

Well, you have to remember the purpose for having drug/alcohol testing programs – deterrence! Yes – unexpected, unannounced testing helps some of your employees to abstain from using drugs and from inappropriate use of alcohol. Unfortunately, the Holiday season is one where there are a lot of different pressures on many individuals. It is a time when some people get depressed (for a number of different reasons), some get more stressed out with the increased pace, shopping, family issues, etc., and others just get carried away with year-end celebrations.

The end result is that many people “self-medicate” themselves with prescription medication, illegal drugs, and/or increased alcohol use. Regrettably, this behavior is frequently accepted by co-workers and employers; the fact that an employee is a little off kilter, more abrasive, louder than usual, angrier are all attributed to the stress of the Holidays. Rarely, are these behaviors seen as something to get concerned about.

By the way, many employers stop all drug and alcohol testing two to three weeks before the end of the year. Frequently, this is common knowledge at the company and really a “get out of jail” card for those who want to celebrate a little harder. Also, many employers feel that since they have met their minimum random testing quota, this is all the testing they can or should do. This is a misconception. An employer can always test more than the minimum and some employers will tell their employees specifically that testing will be conducted through the Holidays – just in case some of them are planning on stepping over the line.

If you have a 24/7 operation nothing prevents you from testing even on Christmas Day. It may cost you just a little more to conduct a test, but it may potentially save you a lot more money in the long run by possibly preventing an accident that could be attributed to drug or alcohol impairment. Will some of your employees call you a Grinch? Maybe, but consider what you may have accomplished: you may have saved an employee’s life or that of someone else on the road and at the same time kept your company from facing devastating litigation.

Take a look at your random testing schedule. When was the last test conducted? What kind of testing did you conduct during this same time frame last year? Did you ever test during the Holidays since the start of the program? All of these questions should help you determine if and when you should conduct drug/alcohol tests during the Holiday season.

A more problematic issue is that of office parties and the approval or permissive use of alcohol. Many employers now have strict policies about office parties and availability of alcohol. They have learned that in most states courts will hold them accountable if an employee leaves an office party inebriated and subsequently has an accident while driving – or even falling down a staircase. This is frequently true even if the company-sponsored event is held off company premises. Obviously, if a company office party will include alcohol, make sure that there are non-alcoholic beverages available, that whoever is serving drinks pays attention to how much someone is ingesting (similar to bartenders), have food available, and of course make provisions to drive or get a taxi for anyone who is unable to drive. For sure, you do not want someone who is scheduled to start a safety-sensitive function to stop by at the party and have a drink before they go on the job.

BOTTOM LINE: You should spell out your specific concerns and requirements so that everyone knows about them – either as a Holiday reminder of company policy or maybe as part of the announcement about the party. Reaffirm that drug use during this time is not condoned and emphasize that the company may conduct drug/alcohol testing during this time frame. If you do not permit alcohol use at company parties, make sure you state that in no uncertain terms. Common sense is a key ingredient here, but you have to use it – and enjoy the Holidays!