14 datia focus spring 2011
best
practices By John Mallios, Sterling Infosystems, Inc.
O
ver the past decade, we’ve seen DOT agencies propos-
ing and imposing millions of dollars in penalties against
regulated employers. These penalties would typically follow
a DOT auditor’s identification of improper repair or maintenance
procedures, insufficient testing of employees performing safety-
sensitive work, as well as inadequate oversight and administration
of drug and alcohol testing procedures, amongst other deficiencies.
Of course, to support workplace and public safety, substance
abuse testing is called for by DOT regulations, and one of the key
areas upon which significant attention is placed by the DOT when
an employer’s program is inspected is random testing. Why? Be-
cause, it not only is a specified requirement for regulated employers
but—putting it simply—random testing works!
Recounting a regrettable incident from two decades ago will per-
haps best demonstrate the essential contribution a random testing
component brings to a “drug-free workplace” (DFWP) program.
This incident began in the early morning hours of August 28, 1991
when a speeding subway train failed to slow at a switch, derailed,
and crashed just north of the Union Square Station at 14th Street in
New York City. The south-bound train was to shift to a local track
but, because of the speed it was travelling (40 mph when no more
than a 10 mph approach was needed), the crossover could not be
handled and the switch was quickly overtaken. Cars near the front
of the train jumped the track, sheared off support columns, split,
and finally fell to their sides crashing onto the tracks.
Tragically, five people were killed and more than 200 were
injured. The 39 year old motorman at the controls of the train had
been overshooting station platforms over the entire run, and he
later admitted that he had been drinking and fell asleep as the train
approached the 14th Street station. Blood tests performed follow-
ing his arrest showed an alcohol concentration of 0.21. It was also
reported that a crack vial was found in the motorman’s cab.
The accident closed several miles of track on the Lexington Av-
enue line for six days, and New York City Transit (NYCT) workers
raced around the clock to clean up the wreckage and replace the
damaged infrastructure. Of five train cars that had derailed, all but
one could not be salvaged and were later scrapped.
Overthefollowingyear,whileNYCTtoiledtorestoreconfidence
inpublicridership,themotormanwouldbeconvictedonfive counts of
2nd degree manslaughterandsentencedtoatermof fiveto 15yearsin
prison.Hewasalsosentencedonassaultchargesinvolving26ofthe
morethan200passengerswhowereinjured.Thoughpreviously denied
parole,themotormanwouldeventuallybesetfreefor goodbehavior10
yearsafterthe“14thStreetAccident”,asitcametobe known.
Up to the time of the accident, NYCT had been working with its
labor unions for several years to counter substance abuse through
a random testing program for workers involved in the operation of
a train or bus. Though the labor unions argued that random testing
could be misused to harass its members, the unions relaxed their
resistance and permitted testing following the 14th Street Accident.
By year’s end, random testing of train operators, bus operators,
and other safety-sensitive employees was underway. Nearly 2,000
random tests were conducted in the first year and more than 3% of
the employees tested positive for drugs and/or alcohol. All employ-
Random Testing & DOT-Employer
Audit Preparedness

www.datia.org datia focus 15
ees who tested positive were immediately removed from service
and given the option to rehabilitate or be terminated (the major-
ity agreed to rehabilitation). Random testing, though, was now in
and NYCT would realize more than a 200% reduction in positive
rates under random testing over the next decade.
How many accidents and workplace injuries were prevented by
NYCT as a result of the new random testing is, of course, difficult to
say. Certainly, though, the safety of NYCT’s ridership and workplace
was strengthened and, more than likely, the cost of the testing that
was and continues to be conducted—at minimum—pays for itself in
terms of avoided accidents, workplace injuries, legal challenges, etc.
Even prior to the 14th Street Accident, however, concerns sur-
rounding substance abuse by American workers were growing nation-
wide and, following President Reagan’s 1986 Executive Order, federal
agencies were required to implement a DFWP program. Sparked by
the 14th Street Accident five years later, the United States Congress
recognized that swift action was needed with regards to the transpor-
tation industry and the Omnibus Transportation Employee Testing Act
(OTETA) was enacted following a near unanimous vote.
Squarely targeting workplace and public safety, OTETA man-
dated employers in the transportation industry to conduct pre-
employment and post-hire testing of workers performing safety-
sensitive functions. At the center of these regulations stood random
testing (several state-level regulations were also enacted over the
years to define random testing parameters).
Under DOT,eachoperatingagencysetsannualrandomtesting
thresholdsfor theindustryitregulates,andcoveredemployers are
requiredtoatleastmeeteachthresholdbytheendofthecalendar
year. Thechartaboveoutlinesminimumtestingratesofsafety-sensitive
workersnowinplacefor 2011.AsaDOT-regulatedemployer,you
shouldalwaysbeinapositiontodemonstratetoanauditorthatyour
randomtestingprogramisfully compliant.YourpolicyandDesignated
Employer Representative(DER)orDrug&AlcoholProgramManager
(DAPM)arekeyfactorsinfacilitatingthisforyou.Thechartonpage
16 outlinesanumber ofrelatedguidelinesandproceduresyourDER
willneedtoconsistentlyoverseeandmanage.
It’s estimated today that one in six American adults is substance
dependent and—even more startling—three out of four are actively
working! For this reason alone, random testing becomes an essential
component of a post-hire DFWP program. More than any other test-
ing purpose, random testing communicates the employer’s zero-toler-
ance position, continuously deters abuse in the workplace, and it works!
With an effectively administered program, covered employees would
know that they would always be subject to selection for random test-
ing, but not sure when their shoulder might be tapped.
Today’s DFWP programs can benefit from more than two decades
of evolving experience, and the DOT guidelines represent the best model
for a DFWP program that is not federally-mandated. Provided there
DOT Agency
2011 Random
Drug Testing
Rate
2011 Random
Alcohol Testing
Rate
FAA—Federal Aviation
Administration
25% 10%
FMCSA—Federal
Motor Carrier Safety
Administration
50% 10%
FRA—Federal Railroad
Administration
25% 10%
FTA—Federal Transit
Administration
25% 10%
PHMSA—Pipeline &
Hazardous Materials
Safety Administration
25% N/A
USCG—United States
Coast Guard (currently
under the Department of
Homeland Security)
50% N/A
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Ken new ad 2.pdf 4/20/2011 3:02:55 PM

16 datia focus spring 2011
is alignment with state and other applicable regulations surrounding
workplace testing (or collective bargaining agreement), an employer
administering or contemplating a Non-DOT random testing program
would do well to shape their program based on the aforementioned
DOT guidelines. It’s also recommended that specific “safety-sensi-
tive” or “at-risk” work functions that would require employees per-
forming those functions to be covered by the employer’s Non-DOT
random testing policy be clearly defined in that policy. ❚
John Mallios, C-SAPA, is the Director of Occupational Health Services
for Sterling Infosystems, a leading provider of background and em-
ployment screening services for more than 9,000 employers nation-
wide. Prior to joining Sterling in 2007, John was with the Metropolitan
Transportation Authority of New York for more than two decades, part
of which included his administration of regulated and non-regulated
substance abuse testing programs. John can be reached at jmallios@
sterlinginfosystems.com.
Employee Awareness—The Employer Should Ensure…..
That every covered employee is aware of the employer’s random testing requirement through employer policy, which every
covered employee should receive prior to performing safety-sensitive work, and for which the employee must sign an
acknowledgement of receipt with agreement to abide by all provisions (FRA requires employers to submit their random testing
plan for authorization prior to initiating random testing of covered employees).
Random Pool—The Employer Should Ensure…..
The DOT random pool includes only covered employees performing safety-sensitive work as defined by the DOT agency regu-
lating the employer, and at no time can any other employee not covered by DOT regulations be included in the same pool. The
pool should also be consistently updated when a new covered employee is hired or transferred into a covered position, or after
one is no longer covered.
Testing is conducted at or above the highest minimum testing rate if the employer is regulated by two or more DOT agencies
and has elected to combine the pools (PHMSA and USCG do not authorize random alcohol testing and, therefore, these pools
cannot be in a combined pool that would include alcohol testing).
Employee Selection—The Employer Should Ensure…..
Selection of employees for testing is made on at least a quarterly basis, meaning that annual or semi-annual selections must not
be permitted.
Selection of employees for testing must be made by a scientifically valid method, such as a random number table or a
computer-based program.
The process used to select covered employees for random testing in a testing cycle (e.g., quarter, month, week, etc.) ensures
that every employee in the pool has an equal statistical chance of being selected to test whenever a selection is made, regard-
less of previous selections or testing history. This is an absolute and is what makes a random selection truly random!
Selected lists are only transmitted to individuals authorized to receive and safeguarded throughout the entire testing cycle.
These are best transmitted to the DER 1–3 days prior to the onset of the testing cycle, following submission of the pool for
randomization within the week prior to the next testing cycle (this strikes a balance ensuring the most current pool is used for
selection, while ensuring distribution of the list just prior to the start of the next testing cycle).
Employee Notification & Testing—The Employer Should Ensure…..
Each employee selected for random testing proceeds immediately to the test site following discreet notification to test (the
employer should safeguard against any potential of thwarting the testing process by escorting the employee from the point of
notification to the test site).
Testing remains unannounced and unpredictable by covered employees at all times, and is reasonably spread and conducted
throughout the entire calendar year.
Testing occurs during all times that safety-sensitive work is being performed, including weekends, holidays, and off-hours (ran-
dom alcohol testing is limited to just before, during, or just after the performance of safety-sensitive work).
Employees who are working and available for testing at anytime during the testing cycle should never be excused from testing (an
auditor will expect that the selected list is 100% executed within the testing cycle). If a selected employee does not test during the
testing cycle, that employee cannot be sent for testing in the next cycle unless he/she was again selected for that cycle, and, the DER
must document why a selected employee could not test or was unavailable during any testing cycle for which that employee was
selected to test.
best
practices

www.datia.org datia focus 17
Records Management—The Employer Should Ensure…..
Random pools, selected lists, excusal reports, and other program records are maintained in a secured location with controlled
access, and retained in accordance with §40.333 regulations.
An employee who fails to arrive at a test site following notification (or within a reasonable time frame—as determined by the
employer) is deemed to have refused to test. For this reason, the DER should inspect the test date/time recorded on the Chain
of Custody/Control Form (CCF, or the ATF—Alcohol Testing Form) following test completion. For example, it would not be rea-
sonable for a test at a site a quarter-mile up the road from the selected employee’s work location to complete 3 hours following
notification to test. In such an instance, the DER should call the test site to determine if a shortage of collectors/technicians
or other problem that day could have caused the delay. This inquiry by the DER should be documented in anticipation that an
auditor would also inquire the same.
All CCFs and ATFs are inspected following the test to ensure appropriate completion by the test site. Sometimes, a DOT ran-
dom test is incorrectly marked under another DOT testing category (e.g., reasonable suspicion, post-accident, etc.), or, a non-
federal form is used rather than a federal form. In such an instance, the DER should obtain or prepare a corrective statement
and affix to the form(s) returned from the test site. Conversely, a federal form may have been incorrectly used for a Non-DOT
test. This level of oversight is essential in advance of a DOT inspection, and to ensure correct reporting of DOT data on an MIS
(Management Information System) report that would be prepared for a calendar year.
Tests that are appropriately cancelled for whatever reason are not counted against the annual random testing thresholds, as
would be reported on an MIS report.
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