… FMCSA: More on Random Testing and FMCSA Guidance in the Regulated Trucking Industry..Compliance with FMCSA Random Drug/Alcohol Testing …
The random testing regulation as stated in 49 CFR Part § 382.109: has grown from a meager 84 words to over 500 words with even longer policy guidance that covers a broad range of topics that come under the heading random testing. The policy guidance identifies 21 different topics that are discussed. Random testing is not as simple as what was originally envisioned.
Part of the new random testing regulation is concerned with the MIS data and how the random selection rate can be reduced from 50% to 25% for drugs and from 25% to 10% for alcohol. It should be noted that there is a section that discusses how the random testing rates can be increased. That decision is based upon data received through the annual MIS reports received from selected employers regulated by FMCSA.
A key note of the random test regulation is that the random selection process is to be made using a scientifically valid method, such as a “random number table or a computer-based random number generator that is matched with drivers’ Social Security numbers, payroll identification numbers, or other comparable identifying numbers.” Drawing names out of a hat is not considered scientifically valid.
Because of certain recent administrative court determinations, a service provider is encouraged to make sure that the random selection program utilized can withstand a court challenge.
What are the responsibilities of the employer to ensure that random testing is conducted as required?
They are not many but important for an effective deterrent random testing program. They are:
- Each driver selected for random alcohol and controlled substances testing under the selection process used, shall have an equal chance of being tested each time selections are made.
- Each driver selected for testing shall be tested during the selection period.
The following is important information for a C/TPA and employers concerning the random selection process:
To calculate the average number of drivers, add the total number of covered drivers eligible for testing during each random testing period for the year and divide that total by the number of random testing periods in a one year time frame. As an example, there are 15 drivers in the first quarter followed with 30 drivers in the 2nd and 3rd quarters with 20 drivers in the 4th quarter. There a total of 95 drivers during the course of 4 testing periods. That gives you an average of 23.75 drivers in each quarter. If there is a high turnover rate, it is recommended that you do this calculation at least once per month. If you do random selections more than once per month you only have to do this calculation once every month.
For C/TPAs that administer random selections, they should check with their clients that fall under FMCSA to update the lists of personnel subject to random testing prior to each selection.
Policy guidance on who is subject to random alcohol testing is as follows: A driver must be about to perform, or immediately available to perform, a safety-sensitive function to be considered subject to random alcohol testing. A supervisor, mechanic, or clerk, etc., who is on call to perform safety-sensitive functions may be tested at any time they are on call, ready to be dispatched while on-duty.
There is additional policy guidance for random testing by terminals that states: If random selection is done based on locations or terminals, a two-stage selection process must be utilized. The first selection would be made by the locations and the second selection would be of those employees at the location(s) selected. The selections must ensure that each employee in the pool has an equal chance of being selected and tested, no matter where the employee is located.
Owner operators need to be in a random consortium, other FMCSA regulated employers must be in a random consortium or have a stand alone random testing pool.
There will be future articles about this very complex subject of random testing with all the various scenarios that can take place.
There will be articles in the near future discussing the proposed drug test changes recently published by SAMHSA.
By: Robert Schoening, Former Drug and Alcohol Program Manager for the US Coast Guard
