Appendix B B-7 regulations do not specify how often you must conduct random testing (other than a minimum percentage rate), but testing must be unannounced and spread reasonably throughout the year in a non-predictable pattern (e.g., monthly or quarterly). The DOT recommends that random selections and testing be performed at least quarterly. You should conduct testing throughout a testing period so employees cannot predict when they might be tested. Practices such as testing only at the beginning or end of a month or testing on the same date within test periods may create foreseeability. Because small employers may experience challenges with spreading the testing dates throughout the calendar year, it may be helpful for a small employer to join a C/TPA to be part of a larger, combined random testing pool. See Section B.6 of this appendix for more information.
B.5.4 When a Test is not Completed. Once the employee is notified to report for random testing and the test is not accomplished for any reason, the test cannot be rescheduled for a later time in accordance with 14 CFR §§ 120.109(b)(7) and
120.217(c)(7). For example, if the equipment at the collection site malfunctions and a test cannot be conducted, the employee’s selection should be excused because the test is no longer unannounced. After you review the circumstances why the test was not completed, including whether the employee did not report for the test or arrived after the testing site was closed, you must determine if the test is a refusal in accordance with 49 CFR § 40.355(i). If you determine that the employee has refused the test, you must follow the regulatory procedures described in section 8 of this Advisory Circular.
B.5.5 Exc usals. You must ensure that each covered employee has an equal chance of being tested each time selections are made in accordance with 14 CFR §§ 120.109(b)(5) and 120.217(c)(5). If an employee is selected, you should make every effort to test the employee unless there is a legitimate circumstance that makes it impossible for you to notify the employee to report for testing. For example, if an employee is unavailable for the last two months of the calendar year while on extended leave (e.g., military leave, sick leave, furlough, or vacation), you may consider that a legitimate circumstance and document it as an excused test. It would not be acceptable to excuse an employee (e.g., flight crewmember or flight attendant) due to operational concerns such as a change in a flight schedule. If you excuse the employee, you must document the reason in accordance with 14 CFR § 120.219(a)(ii)(A) and ensure that the missed test does not result in a shortfall for meeting your random testing rates. In this situation, it may be necessary for you to initiate another random selection or make an extra selection during the next selection cycle. If you hold the employee’s name until they return to work later in the calendar year, you must ensure it is unannounced in accordance with 14 CFR §§ 120.109(b)(7) and 120.217(c)(7).
B.5.6 Special Considerations. If you are a covered employee and act as the primary or alternate DER, it may create some unexpected issues and challenges when it comes to actions associated with your own test. For example, if a covered
Appendix B B-8 employee receives the list of employees selected for random testing and sees their own name, the employee must report immediately to the collection site for testing to ensure compliance with the random testing requirements under 14 CFR §§ 120.109(b)(7) and 120.217(c)(7). If the alternate DER is covered, but the primary DER is not, the problem would be eliminated if the primary DER manages the random selections.
B.6 RANDOM
SELECTIONS AND SPECIAL GUIDANCE FOR SMALL OPERATORS.
B.6.1 Combined Random Testing. If you are a small operator, you may consider joining a Consortium/Third Party Administrator (C/TPA) and being part of a combined random testing pool under 14 CFR §§ 120.109(b)(6)(ii) and
120.217(c)(6)(ii). It would be up to you to obtain your selection list and notify your employees, and ensure that the C/TPA’s combined pool meets the minimum annualized testing rates in accordance with §§ 120.109(b)(6)(ii)(A) and 120.217(c)(6)(ii)(A). This is a good option for a small operator because your covered employees will be part of a bigger pool, have an equal chance of being tested for each selection, and the random testing will be spread reasonably throughout the calendar year.
B.6.2 Sin gle Pool and Dummy Entries. As an employer, you must ensure random drug and alcohol tests are spread reasonably throughout the calendar year in accordance with 14 CFR §§ 120.109(b)(7) and 120.217(c)(7). This can be challenging if you have a small random testing pool. If you do not join a C/TPA and add your employees to a combined random pool, you may want to consider adding dummy entries (names or numbers) to your random testing pool.
Although the rule language does not explicitly address the use of dummy entries, it is a practice that can help a small operator achieve the purpose of random testing, which is to provide an ongoing deterrence from drug use or alcohol misuse. The use of dummy entries cannot alter the clear requirement of the regulation, such as the condition that only safety-sensitive employees are tested, and that each safety-sensitive employee has an equal chance of selection. It is important to evaluate when to use dummy entries, specifically, at the end of the testing year. If prior to the end of the year you have not actually selected enough safety-sensitive employees, you must remove all the “dummies” and select an actual employee through another effective random testing generation tool. This will ensure you meet your annual testing rate.
B.6.3 Al ternate Selection Method for Employers with 12 or Fewer Employees. If you are an employer with 12 or fewer safety-sensitive employees, you may use an alternate selection technique to help maintain deterrence and avoid testing more employees than required annually. We recommend a two-step selection method because under the lowest minimum annual rates, you would still conduct one test per quarter and maintain the deterrence element. This method involves using a computer-based random number generator or a random number table to select the
Appendix B B-9 quarter or quarters in which testing will be required and then the selection of the employee(s) for testing during the appropriate quarter(s). At that rate, a company with 13 to 16 employees can meet the FAA requirement by selecting and testing at least one safety-sensitive employee from the random pool each quarter.
Because an employer should round to the next higher number when computing the number of required tests, a company with 13 to 16 employees should test 4 persons in a calendar year or 1 each quarter. As an example, say you are an employer with 15 covered employees testing at 25 percent. Rounding up, you would need to test 4 employees, which equals approximately one test per quarter to meet the minimum required number of tests. For example:
0.25 x 15 = 3.75 empl oyees rounded up to 4 4 employees to test/4 quarters = 1 employee to test per quarter On the ot her hand, if you only have 7 covered employees and you must drug test at a 25 percent annual rate, you will need to test 1.75 or 2 (rounded up) employees
(0.25 x 7=1.75) during a calendar year. Since this number is less than four, testing once per quarter would result in testing two more employees than necessary.
Therefore, another method is needed to select employees while maintaining the desired level of deterrence (note that you may test more than the required rate, but you must meet the minimum required).
We recom mend a two-step selection method that involves using a computerbased random number generator or a random number table to select the quarter or quarters in which testing will be required and then the selection of the employee(s) for testing during the appropriate quarter(s). It works like this:
• At the beginning of the year, generate a random list of the four quarters.
As an example, the selection list might look like this: 4,3,1,2. If you have one to four employees, you will need to test one person during the year, assuming a 25 percent annual rate. In this example, no name would be drawn until the fourth quarter because that is the first number to come up. Since the employees would not know when a draw is being made, they would assume that there is a chance their name could be drawn at any time.
• Using the same example, if you have five to eight covered employees, you will draw a name and test in each of the third and fourth quarters. If you have nine to twelve covered employees, you will draw a name and test one each of the first, third and fourth quarters.
• As previously noted, the alcohol minimum annual percentage rate is currently 10%. If you have up to ten employees, you must test one employee for alcohol each calendar year. You can meet this rate by conducting a second draw of quarters and testing in the quarter designated. In our example, the one alcohol test would be conducted in the fourth quarter. The alternative is to test the employee selected for
Appendix B B-10 drug testing for alcohol as well. If you must test more than one employee for drugs during the calendar year, then you should designate which quarter’s selection will also be tested for alcohol at the beginning of the year.
• Designating the test period at the beginning of the year will eliminate any concern that you attempted to target a specific employee for testing.
B.7 RECORDKE EPING REQUIREMENTS.
B.7.1 General Requirements. You must retain documents related to the random selection process for two years in accordance with 14 CFR § 120.219(a)(ii)(A).
The documents should support your random selection policies and process, and you and your service agents must make them available for inspection by the FAA in accordance with 49 CFR § 40.331.
B.7.2 Docum enting Your Random Testing Process. To ensure you follow a consistent and compliant process and treat all employees fairly, it is critical that an employer document its random testing process. Documents include, but are not limited to, the following:
• Documentation of selection methodology (including a description of the computer program if applicable).
• List of safety-sensitive employees in the random pool prior to each selection.
• The random selection list each time selections are made.
• The employer’s copy of the custody and control forms and alcohol testing forms from the completed random testing.
• The verified or confirmed test result, which must be maintained under other timeframes (e.g., non-negatives, failed alcohol tests, canceled test results, and refusal to test determinations).
B.7.3 Random Testing Records. It is important that you document everything in the entire random testing process, which may include:
• the number of employees selected each time;
• the names of each employee selected;
• the dates and times each employee is notified to report for testing;
• the dates and times of each employee’s collection; and
• any reason an employee was not tested during the selection cycle, etc.
B.8 COMMO
N ERRORS IN RANDOM TESTING AND ADDITIONAL RESOURCES.
B.8.1 Comm on Errors. It is important that an employer is aware of the most common errors that occur in random testing so they can take the steps to ensure they avoid them. The following are some of the most common errors FAA inspectors find:
Appendix B B-11
• Failing to include all safety-sensitive employees in the random testing pool when each selection is made.
• Including non-safety-sensitive employees in the random testing pool and conducting DOT tests when they are selected.
• Using an unacceptable random selection practice. For example, selecting numbers from a hat, rolling dice, and throwing darts are not acceptable random selection methods.
• Failing to conduct random testing for selected employees within a selection period or calendar year.
• Conducting the wrong type of test. For example, sending an employee for random alcohol testing and conducting a random drug test collection.
• Failure to notify the collection site of the reason for the test or verifying the collection site is ready and available prior to notifying the employee to report for testing.
• Over selecting or using alternates if employees are not available when they are available during the testing cycle.
• Failing to ensure the testing is unannounced or allowing employees to predict when selections and testing will be conducted.
• Failure to include required information on the CCF or mismarking the wrong test or DOT Agency.
B.8.2 FAA I nspection Reviews. During an FAA drug and alcohol compliance inspection, inspectors will check to ensure that each employee has an equal chance of being tested each time selections are made, that there is no way an employee can predict when the next random test will occur, and that the pool contains all safety-sensitive employees. If employees can avoid testing or do not have an equal chance of being tested, the issue would be documented as a finding of noncompliance with 14 CFR §§ 120.109(b) and 120.217(c).
B.8.3 Additional Resources. If you have an active DOT/FAA-mandated drug and alcohol testing program, you must have knowledge of the following regulations and should be aware of the resources available online:
• FAA’ s Drug and Alcohol Testing Program, 14 CFR part 120, that provides the random drug and alcohol testing requirements that apply to aviation employers with an active program.
• DOT’s Procedures for Transportation Workplace Drug and Alcohol Tes ting Programs, 49 CFR part 40, that provides the drug and alcohol collection and testing process.
• Visit the FAA’s website at www.faa.gov/go/drugabatement to re view our random testing video and Frequently Asked Questions or consider using the sample random testing notification form. We encourage you to subscribe for future updates!
• Visit the DOT’s website at www.transportation.gov/odapc and review their “Best Practices for DOT Random Drug and Alcohol Testing” guide.
We encourage you to subscribe to the DOT’s list serve for future updates!
Appendix C OMB Control Number: 2120-0746 Expiration Date: 11/30/2024 Appendix C. Advisory Circular Feedback Form If you find an error in this AC, have recommendations for improving it, or have suggestions for new items/subjects to be added, you may let us know by (1) emailing this form to drugabatement@faa.gov or (2) faxing it to the attention of the Office of Aerospace Medicine, Drug Abatement Division, AAM- 800, at (202) 267-5200.
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