The answer depends on whether the random selection program is a DOT regulated program or a non-DOT program. DOT has specific requirements.
DOT Random Drug Testing
In a DOT regulated random testing program, all random tests are supposed to be conducted in the period when the selections were made. An employee selected, for example, in the first quarter of the year, must be tested by March 31. 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:
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.
- 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.”
Example: A donor reports for random testing for drugs and alcohol. When she arrives at the collection site the breath alcohol testing device is out of commission, or the site is closed and it is too late in the day to find an alternate site. This employee has done what she is supposed to do (reported for testing), so this test will not be completed. The employer or C/TPA should select an alternate who should be tested before the end of the selection period.
Employers should take care to make sure they understand collection site hours before sending employees for random tests
Many sites also stop performing urine drug screens an hour or more before the close of business.
Non Regulated Random Drug Testing
For non-DOT random drug testing programs, there is no regulatory authority. It is up to the employer to ensure 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 for the employer. 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.
This applies not only to making sure standards for testing are documented and consistent, but also consequences for failed or refused tests.