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Of the many types of workplace drug testing that one can perform, one of the most prevalent is random testing. Particularly in safety-sensitive industries, random testing can prove a valuable tool in creating a drug-free workplace environment post-hire and can help prevent costly mistakes and/or accidents that would have otherwise occurred had employees not been deterred from abusing drugs.

What is Random Testing?

Random testing is unannounced testing that should be performed at “reasonable” intervals throughout the year. Employees are chosen randomly from a pre-determined pool and given no advance notice that testing is to occur, meaning that drug-abusing employees do not have the opportunity to either become clean or purchase products in hopes of adulterating the test.

Employees should be chosen via a random selection method that gives equal probability to all individuals subject to random testing. Selections can occur on whatever timeline the employer prefers and should be performed using an identifying number specific to the employee (e.g. employee number or other identifying number) which is placed in a testing pool from which a scientifically arbitrary selection is made.

While most states don’t place restrictions on selection methods for random testing, some states do, giving employers in those states an extra hurdle to overcome. Maine, for example, has extremely restrictive drug testing laws that limit an employer’s options for selection methods in terms of random testing. The law states that random selections must be performed by an individual “not under the influence of the employer” such as a Medical Review Officer (MRO).[1]

For Department of Transportation (DOT) regulated employers, determining a random pool is simple. Each DOT agency (Federal Aviation Administration (FAA), Federal Transit Administration (FTA), etc.) determines a random testing rate at the beginning of the calendar year based on drug and alcohol testing data from the prior year. Employers with employees in regulated positions are required to comply with these determined random rates, and selection methods are outlined in the DOT regulations.

Who Should be Random Tested?

 Employers regulated by a DOT agency have very clear-cut regulations determining who can and cannot be random tested. Refer to agency regulations to review definitions of what a safety-sensitive position entails in order to determine which employees meet those requirements and must be included in the DOT random testing pool at your workplace.

For non-DOT random testing programs, things can get a bit trickier. Many non-DOT employers choose to mirror the DOT random testing program as closely as their state law(s) allow. While many states permit random testing of non-safety-sensitive workers, recent case law has underlined the importance of choosing employees for a random pool based not on their titles or work locations, but rather on their safety-sensitive job duties in certain states.[2] Regardless of whether a random testing pool will included non-safety-sensitive workers or not, it’s always a good idea to include a list of safety-sensitive positions (based on job functions) in your company policy.

Some state laws, such as Tennessee’s voluntary workers’ compensation premium discount law, contain specific language determining what constitutes a safety-sensitive position.[3] Prior to updating or creating a drug-free workplace policy that includes random testing, employers should study applicable state law(s) carefully.

A Note on State Laws

Although it is rare, a number of states either outright prohibit random testing or place a number of restrictions on random testing in the workplace. San Francisco CA, Boulder CO, Rhode Island, and Vermont all prohibit random testing, and California, Connecticut, and Massachusetts place restrictions on it. DOT-regulated employers are required to comply with federal random drug testing requirements even in state(s) that restrict random testing. This means that if you are a DOT-covered employer in one of the aforementioned states you are still required to perform random testing in compliance with DOT regulations regardless of state law(s).

Why Random Test?

Random testing is a powerful tool for employers to help identify individuals who may have a substance abuse problem in addition to being a means to deter individuals from starting or continuing to use drugs. Studies of positivity rates by testing reason have shown that random testing consistently continues to catch drug users across the board. From 2014 to 2018, positive rates from random testing via urine for the general U.S. workforce stayed steady at slightly above 5%.[4] While one may assume that such a consistent and low positivity rate means that random testing doesn’t work, it, in fact, means the opposite.

If random testing produced consistently high positivity rates, it would have failed in its mission to deter employee drug abuse. However, random testing not only deters drug-abusing employees from doing drugs, it also helps identify individuals that could benefit from rehab. The lower the positivity rate, the better.

Wanting to know what restrictions exist around random testing in your state(s) of business? Subscribe to Current Compliance, the industry’s only state drug and alcohol testing law database. Want to update your random program or put one in place? Contact CCG at policy@currentconsultinggroup.com to learn more about our custom policy services.

© 2010-2020 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder are required.

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[1] Maine Rev. Stat. 26-7-3A-684

[2] Dix v. Casey’s General Stores, Inc., No. 18-1464 (Iowa Ct. App. 2019)

[3] Tenn. Comp. Rules & Reg. 0800-02-12-.03(22)

[4] “Positivity Rates by Testing Reason.” Quest Drug Testing Index, accessed 19 February 2020. https://www.questdiagnostics.com/home/physicians/health-trends/drug-testing/table4/.