Managing a Compliant Random Testing Program

Written By Lucas Kibby

Managing a compliant random selection testing program is much more complex than just pulling names out of a hat. To ensure compliance with the regulations and reduce the risk of legal challenges, employers need to understand the process and make a number of decisions.

Employers must decide whether they want their employees isolated in their own selection pool or as part of a bigger pool of other employers’ employees.  Employers should know:

• If they are required to meet specified random testing rates,
• What those rates are,
• How to calculate how many tests are needed in order to meet the rate, and
• What the consequences will be if they fail

Procedures must be in place for keeping the pool of names in the program up to date. Other decisions include how the random selections are made and, once selections are made, how the designated employer representative (DER) must notify the selected employees that they need to test.  Selecting alternates for employees who may not be available for testing must also follow strict procedures.  The entire process and results need to be documented and maintained.

These complexities and more drive most employers to utilize a Consortium/Third Party Administrator (C/TPA) such as CleanFleet for help. A quality C/TPA can manage all or part of an employer’s random testing program however, the employer is ultimately responsible for the program and understanding the process is critical to the programs success.

The risks of not understanding how to manage a compliant random testing program can be costly and include violations and fines from non-compliance of regulations or even lawsuits from disgruntled employees.

Placing employees in a random testing pool

As an employer, there are two methods of placing employees into a random testing pool. The first method is to create a pool of just a single employer’s employees. The advantage of this method is knowing exactly how many employees will be selected throughout the year. This allows an employer to plan and budget precisely.

An employer can also choose to place its employees into pool with employees of other employers. This type of pool is called a consortium. Employers choosing this method don’t know when or how many employees will be selected throughout the year. An employer could go a year or more without having a single employee selected, or the employer could have every employee selected.

Whichever method is chosen, if an employer has employees that are governed by federal regulations, those employees must be in a pool of only federally governed employees. This is so federal agencies, such as the DOT, can ensure that the minimum random testing rate of federally governed employees is met.

Calculating the number of tests needed to meet the random testing rate

For employers that are governed by the DOT, they know that the DOT modes set their own annual minimum random testing rates for drugs and alcohol. For example, while the FMCSA currently requires employers to test 25% of their covered employees for drugs and 10% for alcohol, the PHMSA requires 50% to be tested for drugs, but doesn’t randomly test for alcohol. In order to meet these percentages, one needs to keep track of the average number of active participants in the pool at the time of each selection.

Say a FMCSA pool is to perform quarterly random selections throughout the year, which is the minimum frequency of selections required. At the time of the first quarter draw there are 20 participants in the pool. To meet the 25% and 10% minimums for the year, 5 drug tests and 2 alcohol tests must be completed throughout the year. Since it’s only 1^st quarter, and there are 4 selections left to complete, 1 employee for a drug test and 1 employee for an alcohol test can be selected (this can be the same employee).

Now the second quarter selection comes around and there are 30 active participants in the pool. This is where calculating the average number of participants comes into play. To calculate the average, take the total number of active participants (20 + 30 = 50) and divide by number of selections performed, which is 2 (50 / 2 = 25). Now 25 is the number of participants to calculate the percentages from. So the number of drug tests needed for the year is now 25% of 25, which is 6.25 or 7 (always round up to hit the minimum percentage). In calculating the number of alcohol tests needed for the year, the calculation is 10% of 25, which is 3. Now knowing we need 7 drug tests and 3 alcohol tests for the year, subtract the number of tests already performed to get the number left to be completed over 2^nd, 3^rd, and 4^th quarters (7 – 1 = 6 drug tests needed, 3 – 1 = 2 alcohol tests needed). Since we have 3 selections to get 6 drug tests and 2 alcohol tests completed, we should select 2 employees for drug tests and 1 for an alcohol test for the 2^nd quarter selection.

Keep repeating that process for 3^rd & 4^th quarter selections to ensure that enough employees get tested. For those employers that group their employees into a larger pool, each individual employer doesn’t need meet the percentages, only the pool as a whole needs to meet them.

Performing the random selections

In a federally mandated program, everyone in the pool must have an equal chance of being selected in each selection period. The selection must be made by using a scientifically valid method, which may include: use of a random-number table or a computer-based random number generator that’s traceable to a specific employee.

We often hear concerns, like “I just did a random test a couple months ago! Joe never gets tested. I don’t think this thing is random at all!” The reality is that in a truly random selection process, every employee has the same chance of being selected during each selection. An employee can be in a random selection pool for years and never be selected, or an employee can be selected multiple times throughout the year. This is federally acceptable as long as the pool meets the annual random selection rate. Using a third party C/TPA to perform random selections can help an employer mitigate the perception of bias among employees.

Warning #1: Unacceptable random selection practices include a supervisor selecting employees that just happens to be around, selecting names from a hat, rolling dice, throwing darts, picking cards, selecting ping pong balls, etc.

Warning #2: DOT regulated employees cannot be in a pool with non-DOT employees in a random program. If an employer has 20 DOT regulated employees and 100 non-DOT employees (general construction workers not driving trucks, sales department, etc.), the employer must have these employees separated into two pools.

Notifying employees that they have been selected for testing

The purpose of a random test is to perform the test unannounced. For federally mandated programs, this is why regulations state that once an employee is informed of being selected for testing, he or she must immediately proceed to a testing facility. However, the employer may choose to notify the employee at the soonest practicable time for the employer, as long as it is within the selection period. The only caveat being that the employee must be on-duty when reporting to test. When notifying an employee, best practice is to do the following:

• Let the employee know what he or she is testing for: drugs, alcohol, or both
• Give the employee an authorization to a specific collection site to report to
• Specify a time in which the employee must report to the collection site by
• Have the employee sign and date that he or she has been notified

If a federally regulated employee does not report to the collection site within the allotted timeframe, the employer must deem the employee as having refused to test and take appropriate action.

Note: Notifying employees of testing is one area of the testing program that a C/TPA cannot manage for employers. This task must be managed by a designated employer representative from within the employer.

Employees not available for testing and selecting alternates

Like it or not employees take vacation, take leave, and leave employers. If these employees get selected to take random drug and/or alcohol tests, they are likely to be unavailable for testing during the selection period. In these cases alternate employees should be selected to take the places of the unavailable employees. If not, employers risk not meeting their random testing rates.

There are a couple of ways to randomly select alternates. For federally regulated programs, the same criteria of selecting the original set of employees applies to selecting alternates: must be made by using a scientifically valid method. At CleanFleet, our software assigns every employee in the pool with a random number, and then sorts the list by the value of these assigned random numbers. After selecting the original set of employees to test, the remaining employees become alternates and are selected in the order they have been sorted in. Once an alternate is selected, the original employee does not have to complete the tests upon return.

Warning: If employees are on extended leaves of absences, the DOT frowns upon leaving them in the random selection pool. Best practice would be to remove these employees from the pool and have them take new pre-employment tests upon return.

Maintaining Documents and Records of the Random Program

Everything regarding the random testing program should be documented and maintained. An employer should have access to documentation of how random selections are performed. This includes details on how a software-based random selection program algorithm makes selections. Lists of eligible employees along with the selected employees should be maintained for every selection. A summary of annual random needs to be prepared showing that minimum testing rates are met. Even documentation of why an alternate was chosen for a selected employee needs to be maintained for audit purposes.

As one can see, managing a random testing program is complex and time consuming. If an employer doesn’t have the proper resources in place to manage every facet of the program, it could be at risk of facing violations, fines, or lawsuits. This is where a C/TPA such as CleanFleet can be an asset. A C/TPA should be able to help manage a random testing program from start to finish.

If there are ever any questions or concerns about your random testing process, don’t hesitate to give CleanFleet a call at (503) 479-6082.