Why should employers add random drug testing to their NonDOT drug free workplace programs?
Random drug testing is an essential component of a drug free workplace program providing a deterrent to illegal drug use and also identifying those who may be using illegal drugs. Random drug testing can be more effective at detecting and deterring drug use than pre-employment testing because employees do not know when they may be selected for testing. The key ingredient to a random drug testing program is unannounced testing, it should always be a surprise test. Identifying and deterring substance abuse will help your company save money with less accidents, higher productivity, less turnover and less absenteeism.
So how does this random testing work?
A scientifically valid random selection method should be used. This is typically a computer software program provided and managed by your drug testing third party administrator (TPA). e7 Health is a TPA that provides random drug testing programs for employers.
In a typical random drug testing program, there may be 100 people in the random testing pool and the random rate is 50%, then 50 selections will occur over a year's time. The number of annual tests, therefore, is representative of the percentage of selections indicated by the random rate. If the random rate is 25% then 25 selections can occur over the year. Most employers will ask that the selections occur either monthly or quarterly. Larger employers with 1000 + employees will typically look at the monthly selection options.
Employers provide e7 Health with an Excel or .CSV employee roster file prior to each selection period and we run candidate pool selections based upon the established preferences. The notice of selections is then sent to the company drug free workplace administrator or commonly called the Designated Employer Representative (DER). The company DER then works with supervisors to determine when employees are available to be notified. Employees should never be given advance notice of the random drug testing, this could give certain individuals the opportunity to perhaps try to cheat on the drug testing taking measures to evade drug detection.
The random testing component should be identified in the company drug free workplace policy. A random testing notification in the policy might look like this:
[Company Name] will randomly test employees for compliance with its drug-free workplace policy. As used in this policy, "random testing" means a method of selection of employees for testing, performed by an outside third party. The selection will result in an equal probability that any employee from a group of employees will be tested. Furthermore, [Company Name] has no discretion to waive the selection of an employee selected by this random selection method.
Once there is a selection of employees for random drug tests, a determination should be made that an employee is available for the random drug test. The employee is then notified and should be instructed to go for the testing immediately. There is no 24 hour notice or within the next 2 hours. The selected and notified employee should report for testing immediately, no exception.
Pitfalls in Random Testing
- The biggest pitfall with random testing is mistakenly calling a test a random test when it is not. Often employers will call to order a random test only to find out this is really a reasonable suspicion test. The employer states that a particular employee is acting strange and they suspect this employee to be using drugs and can we set up a random test. This is not the correct intent, there is nothing random about this testing event; it is reasonable suspicion and should be called reasonable suspicion.
- Not using a scientifically valid random testing selection procedure is another pitfall that can lead to liability issues with your drug testing program. It is not appropriate to put everyone's name in a hat and pick the names. It is also not appropriate to choose everyone with last name A to M in the first half of the year and names ending in N to Z in second half of the year. Always use a scientifically valid random testing selection procedure
- Advance notification of the names selected for random testing is a common problem. This defeats the surprise element. Only notify the employee of their selection for a random test
- Immediate means immediate. Don't let the employee say: "Let me finish up this important project and I'll go later today after lunch." Once notified an employee should be going immediately for the random test
State Laws and Random Drug Testing
Every company implementing a drug testing program should be aware of the state laws in that State which regulate drug testing. Some States have mandatory statutes, some have voluntary statutes and some have no requirements at all regarding employment drug testing. Regarding random drug testing some states limit this type of testing in a non-regulated environment. A written drug free workplace policy should be implemented prior to random testing starting and the person writing the policy should be familiar with the State laws regard drug testing.
When random drug testing is limited by state law, it is typically limited to employees who hold a safety sensitive position. For positions which have a higher risk for accidents there is typically no prohibition on random drug testing. Some states also actually define what the safety sensitive positions are (see Connecticut). Below find some specific states that limit or prohibit random drug testing.
Alaska - Random drug testing is permitted but not required under voluntary law; generally, however, random testing is limited to safety-sensitive positions per court decisions. Random testing is required of school bus drivers.
California - California courts have ruled that employees have broad privacy rights. Random testing has been previously limited to workers in safety-sensitive occupations; however, the trend is to advise companies against any type of random testing. San Francisco has a very restrictive drug testing law. Employers' rights are very limited when it comes to when drug testing can take place, and who may be drug tested. Employers are advised to refer to the city's law very carefully before implementing a drug testing program.
Colorado - The city of Boulder, CO has a very restrictive drug testing law and random drug testing in Boulder is prohibited.
Connecticut - In Connecticut an employer may require an employee to submit to a urinalysis drug test on a random basis if (1) such test is authorized under federal law, (2) the employee serves in an occupation which has been designated as a high-risk or safety- sensitive occupation pursuant to regulations adopted by the Labor Commissioner pursuant to chapter 54, or (3) the urinalysis is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.
Maine - Random testing is allowed for safety-sensitive workers only or with union agreement. A company drug free workplace policy must be approved by the Maine Department of Labor.
Massachusetts - Per case law, random drug testing is limited to safety-sensitive workers or other circumstances in which the employer can show a legitimate business necessity. Courts have ruled that random testing should be limited to workers in safety-sensitive positions with reference to the Massachusetts Privacy Act.
Minnesota - Random drug testing is allowed only of safety-sensitive workers only or professional athletes with a collective bargaining agreement that permits random testing.
Montana - Montana has specific conditions for random testing that must be included in the company drug free workplace written policy.
New Jersey - Per case law, random drug testing is limited to safety-sensitive workers or other circumstances in which the employer can show a legitimate business necessity.
Rhode Island - Rhode Island restricts drug testing of employees to circumstances in which there is suspicion of drug use or impairment. First-time positives may not result in termination. Some exceptions apply for road/transportation workers and of course all DOT regulated employees.
Vermont - Random drug testing is prohibited. Vermont's drug testing law is one of the most restrictive in the nation. Random testing is prohibited. Some type of EAP or referral service is required in order to conduct drug testing. This law also applies to public sector workplace drug testing.
West Virginia - West Virginia does not have a general mandatory drug testing statute; however it does have a mining industry testing law. For the mining industry, random drug testing, must cover at least 25% of employees and occur at least 4 times annually.
It is important to note that the above State laws and guidelines do not affect required DOT drug and alcohol testing programs and DOT required random drug testing.
Call e7 Health 702-800-2723 for assistance with your random drug and alcohol testing program.