If a Random Position Has Been Used From a List

Part 382

Department § 382.305: Random testing.

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• Guidance Q&A

Question 1: Is a driver who is on-duty, but has not been assigned a driving chore, considered to be ready to perform a safety-sensitive function as divers in §382.107 subjecting the commuter to random alcohol testing?

Guidance: A commuter must be about to perform, or immediately available to perform, a safe-sensitive function to be considered subject to random alcohol testing. A supervisor, mechanic, or clerk, etc., who is on telephone call to perform prophylactic-sensitive functions may be tested at any time they are on call, gear up to exist dispatched while on-duty.

Question two: What are the employer'due south obligations, in terms of random testing, with regard to an employee who does not drive as function of the employee's usual chore functions, but who holds a Commercial Driver's License (CDL) and may be called upon at any fourth dimension, on an occasional or emergency footing, to drive?

Guidance:

Such an employee must be in a random testing pool at all times, like a full-time driver. A drug examination must be administered each time the employee's name is selected from the pool.

Alcohol testing, however, may only be conducted just before, during, or simply after the performance of safety-sensitive functions. A prophylactic-sensitive role as defined in §382.107 ways whatsoever of those on-duty functions set up forth in §395.two On-Duty time, paragraphs (1) through (vii), (more often than not, driving and related activities). If the employee's proper name is selected, the employer must wait until the next fourth dimension the employee is performing prophylactic-sensitive functions, just before the employee is to perform a safety-sensitive role, or just subsequently the employee has ceased performing such functions to administer the booze examination. If a random selection period expires before the employee performs a safety-sensitive function, no booze examination should be given, the employee'due south name should be returned to the pool, and the number of employees subsequently selected should be adjusted appropriately to achieve the required rate.

Question iii: How should a random testing plan be structured to account for the schedules of school bus or other drivers employed on a seasonal basis?

Guidance:

If no school autobus drivers from an employer's random testing puddle are used to perform safety sensitive functions during the summertime, the employer could choose to make random selections simply during the schoolhouse year. If the employer nevertheless chooses to make selections in the summer, tests may only be administered when the drivers render to duty.

If some drivers continue to perform safety-sensitive functions during the summer, such as driving buses for summer school, an employer could non choose to forego all random selections each summer. Such a practise would compromise the random, unannounced nature of the random testing program. The employer would test all selected drivers actually driving in the summer. With regard to testing drivers not driving during the summertime, the employer has two options. One, names of drivers selected who are on summer vacation may be returned to the pool and some other selection made. 2, the selected names could be held by the employer and, if the drivers return to perform safe-sensitive functions before the side by side random selection, the test administered upon the drivers' return.

Finally, it should be noted that reductions in the number of drivers during summer vacations reduces the average number of driving positions over the course of the year, and thus the number of tests which must exist administered to meet the minimum random testing rate.

Question iv: Are driver positions that are vacant for a testing bike to exist included in the determination of how many random tests must be conducted?

Guidance: No. The Federal Highway Administration (FHWA) random testing plan tests employed or utilized drivers, non positions that are vacant.

Question 5: May an employer apply the results of some other program in which a driver participates to satisfy random testing requirements if the commuter is used by the employer only occasionally?

Guidance: The rules establish an employer-based testing programme. Employers remain responsible at all times for ensuring compliance with all of the rules, including random testing, for all drivers which they employ, regardless of any utilization of third parties to administer parts of the program. Therefore, to apply another'southward program, an employer must brand the other program, by contract, consortium understanding, or other organization, the employer'southward own program. This would entail, amongst other things, being held responsible for the other program's compliance, having records forwarded to the employer'southward principal identify of business organization on ii days notice, and being notified of and acting upon positive test results.

Question 6: One time an employee is randomly tested during a agenda yr, is his/her proper name removed from the pool of names for the calendar year?

Guidance: No, the names of those tested earlier in the year must be returned to the pool for each new pick. Each driver must be subject to an equal chance of being tested during each selection process.

Question 7: Is it permissible to make random selections by terminals?

Guidance: Yes. If random selection is done based on locations or terminals, a two-stage selection procedure must be utilized. The first pick would be fabricated by the locations and the second selection would be of those employees at the location(due south) 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.

Question 8: When a driver works for two or more employers, in whose random pool must the commuter be included?

Guidance: The driver must be in the pool of each employer for which the driver works.

Question 9: After what menses of time may an employer remove a coincidental commuter from a random pool?

Guidance: An employer may remove a casual driver, who is not used by the employer, from its random pool when information technology no longer expects the commuter to be used.

Question ten: If an employee is off work due to temporary lay-off, illness, injury or holiday, should that individual's proper name be removed from the random puddle?

Guidance: No. The individual's name should not be removed from the random pool and so long every bit there is a reasonable expectation of the employee's return.

Question xi: Is it necessary for an owner-operator, who is non leased to a motor carrier, to belong to a consortium for random testing purposes?

Guidance: Yes.

Question 12: If an employer joins a consortium, and the consortium is randomly testing at the appropriate rates, will these rates meet the requirements of the alcohol and controlled substances testing for the employer fifty-fifty though the required percent of the employer'due south drivers were not randomly tested?

Guidance: Yeah.

Question 13: Is it permissible to combine the drivers from the subsidiaries of a parent employer into ane puddle, with the parent employer interim every bit a consortium?

Guidance: Yes.

Question 14: How should an employer compute the number of random tests to be given to ensure that the advisable testing rate is achieved given the fluctuations in commuter populations and the loftier turnover rate of drivers?

Guidance:

An employer should take into account fluctuations by estimating the number of random tests needed to be performed over the grade of the year. If the carrier's driver workforce is expected to be relatively constant (i.e., the full number of commuter positions is approximately the same) and then the number of tests to be performed in any given yr could be adamant by multiplying the average number of driver positions by the testing rate.

If there are large fluctuations in the number of commuter positions throughout the year without whatever clear indication of the average number of commuter positions, the employer should brand a reasonable estimate of the number of positions. Subsequently making the estimate, the employer should then be able to determine the number of tests necessary.

Question xv: May an employer or consortium include not-U.S. Department of Transportation (DOT)-covered employees in a random pool with U.S. Department of Transportation (DOT)-covered employees?

Guidance: No.

Question 16: Canadians believe that their laws require employer actions exist tied to the nature of the job and the associated safety gamble. Canadian employers believe they will have to event alcohol and drug testing policies that deal with all drivers in an identical mode, non just drivers that cantankerous the border into the United States. If a motor carrier wanted to add cross border piece of work to an intra-Canadian driver's duties, and the driver was otherwise qualified under the FHWA rules, may the pre-employment test be waived?

Guidance:

The Federal Highway Administration (FHWA) has long required, since the beginning of the drug testing program in 1988, that transferring from intrastate work into interstate work requires a "pre-employment" test regardless of what type of testing a State might have required under intrastate laws. This policy also applied to motor carriers that had a pre-employment testing program similar to the Federal Highway Administration (FHWA) requirement. The Federal Highway Administration (FHWA) believes it is reasonable to apply this same estimation to the first time a Canadian or Mexican driver enters the U.s..

This policy was delineated in the Federal Register of February 15, 1994 (59 FR 7302, at 7322). The Federal Highway Administration (FHWA) believes motor carriers should separate drivers into intra-Canadian and inter-State groups for their policies and the random selection pools. If a commuter in the intra-Canadian group (including the random selection pool) were to take on driving duties into the United States, the commuter would be subject to a pre-employment test to have on this driving chore. Although the circumstance is not actually a first employment with the motor carrier, such a examination would be required because it would be the showtime time the commuter would be subject field to role 382.

Question 17: May an employer notify a driver of his/her selection for a random controlled substances test while the driver is in an off-duty status?

Guidance:

Yep. Office 382 does non prohibit an employer form notifying a driver of his/her option for a random controlled substances test while the driver is in an off-duty status.

If an employer selects a commuter for a random controlled substances exam while the driver is in an off-duty status, then chooses to notify the commuter that he/she has been selected while the driver is still off-duty, the employer must ensure that the driver proceeds immediately to a collection site. Immediately, in this context, means that all the driver's actions, after notification, lead to an immediate specimen collection. If the employer's policy or practise is to notify drivers while they are in an off-duty status, the employer should make that policy clear to all drivers so that they are fully informed of their obligation to continue immediately to a collection site.

If an employer does not want to notify the commuter that he/she has been selected for a random controlled substances test while the driver is in an off-duty condition, the employer could set aside the driver'due south name for notification until the driver returns to piece of work, as long as the driver returns to piece of work before the side by side option for random testing is made.

Employers should note that regardless of when a driver is notified, the fourth dimension the driver spends traveling to and from the drove site, and all fourth dimension associated with providing the specimen, must be recorded as on-duty fourth dimension for purposes of compliance with the hours-of-service rules.

Question 18: Is information technology permissible to select alternates for the purpose of complying with the Random Testing regulations?

Guidance: Yes, it is permissible to select alternates. Nevertheless, information technology is only permissible if the chief driver selected volition non exist available for testing during the selection period because of long-term absenteeism due to layoff, illness, injury, vacation or other circumstances. In the issue the initial driver selected is not available for testing, the employer and/or C/TPA must certificate the reason why an alternate driver was tested. The documentation must be maintained and readily bachelor when requested by the Secretary of Transportation, whatsoever DOT agency, or any State or local officials with regulatory dominance over the employer or any of its drivers.

Question 19: A motor carrier uses a consortium/3rd party administrator (C/TPA) to bear its random selection of driver names. The C/TPA has many motor carriers in its random selection pool. The C/TPA has set up its random option program to pick commuter names and notifies the motor carrier whose driver the C/TPA has selected. The motor carrier notifies the C/TPA the driver is before long on long-term absence due to layoff, illness, injury, or vacation. The motor carrier also notifies the C/TPA information technology does not expect the driver to render to duty before the C/TPA's next selection of driver names. The C/TPA then randomly orders and selects a driver'southward name from the motor carrier that employs the driver who is unavailable rather than selecting the next proper noun on the random option list. Is this a scientifically valid and impartial method for selecting drivers for random testing in a motor carrier's programme?

Guidance:

This process is a scientifically valid method for selecting driver names. This method is similar to methods used by organizations, including the Department of Labor's Bureau of Labor Statistics, to randomly order, select, and substitute names for sampling with replacement of groups of individual and companies. This procedure has a pocket-size degree of theoretical bias for a simple random sampling pick process. The theoretical bias, though, is so minimal the FMCSA does not believe the agency should prohibit its use.

This method is useful for operational settings, such every bit FMCSA's motor carrier random testing plan. The method is less impartial toward drivers than other theoretical methods, but maintains a deterrent effect for both motor carriers and drivers. This method should deter motor carriers from claiming drivers are unavailable each time the C/TPA selects 1 of its drivers, there by never having its drivers subject to actual random tests.

In add-on, employers and C/TPA'south should institute operational procedures that will ensure, to the greatest extent possible, that the principal selections for random testing are tested. The operational procedures should include procedures that volition ensure the random selection lists are updated in a timely mode. The updates will ensure that drivers who are no longer available to an employer will non exist counted in the random pick lists. The operational procedures should also outline the measures for selecting alternates, including documenting the reasons for using an alternate.

Question 20: If an employer is subject to random testing for only a partial agenda year, how should the employer make up one's mind the number of random tests required during the year to reach the appropriate testing rate? (Examples: new employers that brainstorm operating midway through the calendar year; employers which merge or split midway through the calendar year; Canadian or Mexican carriers that brainstorm U.S. operations midway through the calendar year.)

Guidance: The number of random tests required can be computed in the same mode as for any employer that has large fluctuations in the number of driver positions during the year. Use the formulas T = 50%x D/P for controlled substance testing and T = x%x D/P for alcohol testing, where T is the number of tests required, D is the total number of drivers subject area to testing, and P is the number of pick periods in a full agenda year. For whatsoever selection period during which the carrier was non subject to §382.305, simply enter a aught in the driver calculations. Example: A carrier starts operating in August and decides to exam quarterly (P = iv). It has 16 drivers subject to testing in the 3rd quarter and only 12 drivers subject to testing in the fourth quarter. D = 0 + 0 + 16 + 12 = 28. D/P = 28/iv = 7. T = fifty%of 7, or 3.5, which must be rounded up to 4. The carrier must exam 4 drivers for controlled substances betwixt its first mean solar day of functioning in August and the terminate of the twelvemonth. Following the requirement to spread testing reasonably throughout the year, two drivers should exist tested during the third quarter and two during the fourth quarter.

Question 21: If a driver has been notified of his/her selection of random drug and/or alcohol testing and the testing cannot exist completed because of "unforeseeable obstacles" at the collection site (i.e. collection site closed, collector unavailable when driver shows up, emergency such as a burn down, natural disaster, etc…), what is the carrier's responsibility?

Guidance: In accordance with §382.305(i)(3) and §382.305(l), each commuter selected for testing shall be tested during the selection period; and upon notification of selection for random alcohol and/or drug testing continue to the collection site immediately. In instances of "unforeseeable obstacles" the driver shall immediately contact the employer's DER for instructions to an alternative collection site. These "unforeseeable obstacles" do not negate the employer's responsibility of ensuring that the required test be administered.

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Source: https://www.fmcsa.dot.gov/regulations/title49/section/382.305

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