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What Happens if my Employees Don’t Complete the Random Drug Testing Selections?

Random Drug Testing

...There are two answers to the question on random drug testing depending on whether the random selection program is a DOT regulated program or a non-DOT program.  National Drug Screening random drug testing random management software does have a feature called ‘Auto Compensate”.  With this feature the random drug testing software will generate additional random drug and alcohol selections in the next selection period if there is a shortfall from previous selection periods.

In a DOT regulated random testing program, all selections made for the selection period must have corresponding completed drug or alcohol tests for that selection period.  The selection period for a DOT random drug testing program is typically quarterly or monthly.  The only exception is if a selected employee is out on extended leave through the end of the selection period, and it this case either an alternate is selected or additional test is selected in the next selection period.

For FMCSA, 49 CFR Part 382 Section 302.305 states:

(3) Each driver selected for testing shall be testing during the selection period.

DOT Best Practices documents state:

C. What happens if a selected employee is not available for testing?

Employers need to have policies in place about what to do when employees are unavailable for testing.  
Best Practices:

  • If an employee selected for testing is known to be unavailable during the selection cycle (legitimate extended absence, long-term illness, etc.), document the reason and make-up the rate shortfall by making another selection, or make an extra selection during the next selection cycle.
  • An employee is selected for testing but has not received notice since it is his day off, test the employee during his or her next shift within the same selection cycle.
  • No employee should be excused from testing because of operational difficulties. See your industry specific regulations and interpretations for legitimate exceptions.
  • Once the employee is notified to report for testing and the test does not occur, the opportunity for the random testing is over.  There is no second “bite of the apple.” 

Non Regulated Random Drug Testing

For non-DOT random drug testing programs, there is no regulatory authority.  It is up to the employer to insure that the random drug and alcohol testing is fair and consistent.  When employees are selected and not tested, the program is not random, not fair and not consistent.  This creates exposure to liability.  In any lawsuit regarding the employer drug testing program, if the random testing program has not been managed with fairness and consistency, this can cause significant problems with the lawsuit.  It is recommended that employers take a serious look at random drug testing programs and operate those program appropriately with professionalism, fairness and consistency; thus avoiding significant exposure to liability.