Chapter 2.41
DRUG FREE WORKPLACE
Sections:
2.41.030 Statements of policy.
2.41.040 Treatment and rehabilitation.
2.41.060 Managerial responsibility for enforcement.
2.41.080 Pre-employment testing.
2.41.090 Reasonable suspicion.
2.41.110 Drug and alcohol testing.
2.41.120 Processing urine samples.
2.41.140 Results of drug testing.
2.41.150 Evaluation of legal drug use.
2.41.160 Alcohol level at 0.04.
2.41.200 Negative test results.
2.41.220 Record retention requirements.
2.41.230 Drug and alcohol testing for commercial driver’s license (CDL) holders.
2.41.010 Purpose.
Borough government provides a variety of public services. The employees of the borough are its most valuable resource, since it is through their work that services are provided. When delivering services, the health and safety of the public and the health and safety of employees are of paramount importance.
Drug and alcohol abuse is a problem of serious concern and one which affects all segments of the community, including the workplace. Such behavior poses risks to members of the public and to borough employees. Employees have the right to work in an alcohol and drug-free environment. Members of the public have the right to be free from the harmful effects of alcohol and drug abuse in the provision of public services. The policy of the borough is to provide a safe work environment and to protect the public by ensuring a drug-free workplace.
This policy also implements the 1995 Federal Highway Administration (FHWA) requirements for drug and alcohol testing for commercial driver’s license holders and Federal Transit Administration (FTA) rules for employees performing safety-sensitive work on transit vehicles. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.020 Scope.
All borough employees, unless specifically exempted by this chapter, are subject to the general provisions of this policy. In addition to the general provisions, all employees who are required to have a current commercial driver’s license (CDL) as a condition of employment are subject to the CDL-related provisions of this policy. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.030 Statements of policy.
The borough is committed to a drug-free workplace, to educating employees regarding the dangers of substance abuse, and to providing support for employees undergoing treatment and rehabilitation for chemical dependency. The borough also is committed to the accountability of employees for violations of this policy through appropriate discipline, up to and including termination. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.040 Treatment and rehabilitation.
To the extent commercially practicable the borough will include within medical coverage provided to its employees by its group insurance plan, coverage for chemical dependency treatment or rehabilitation. An employee actively enrolled in a treatment or rehabilitation program may use accrued leave to the extent necessary to participate in the program. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.050 Prohibitions.
This policy prohibits the following:
A. The unauthorized use, possession, manufacture, distribution or sale of an illegal drug, controlled substance or illegal drug paraphernalia on borough property or while on borough business, in borough-supplied vehicles or during working hours;
B. The unauthorized use, possession, manufacture, distribution or sale of alcohol on borough premises, in borough-supplied vehicles, or while on borough business;
C. Storing any illegal drug, illegal drug paraphernalia, or any controlled substance whose use is unauthorized, or any container of alcohol, in or on borough property (including vehicles). Unopened containers of alcohol in a private vehicle parked on borough property shall not be a violation of this policy;
D. Reporting to work, or working, while under the influence of illegal drugs or alcohol, whether on borough premises or on borough business, or in borough-supplied vehicles;
E. Failing to notify the employee’s supervisor, before beginning work, that the employee is taking medications or drugs which may interfere with the safe and effective performance of duties;
F. Refusing to immediately submit to an alcohol and drug test when requested by the borough, in accordance with this policy;
G. Failing to provide, by the next work day following a request, a valid prescription for any drug or medication identified when the results of a drug test are positive. If the employee is taking prescription drugs, the prescription must be in the employee’s name;
H. Refusing to submit to an inspection as described in the enforcement section when requested by the borough, in accordance with this policy;
I. Failing to adhere to the requirements of any drug or alcohol treatment program in which the employee is enrolled: (1) as a condition of continued employment, or (2) pursuant to a written agreement between the borough and the employee;
J. Violating any criminal drug or alcohol statute while working;
K. Failing to notify the borough of any arrest or conviction, while acting as an employee, occupying borough property, or driving a borough-supplied vehicle, under any criminal drug or alcohol statute by the next work day following the arrest or conviction. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.060 Managerial responsibility for enforcement.
A. The borough manager shall be responsible for enforcement of this policy and shall counsel all other managers and supervisors in respect to the evaluation and management of substance abuse issues in the workplace.
B. The borough shall ensure that at least one designated employee receives at least sixty minutes of training on alcohol misuse and at least an additional sixty minutes of training on the use of controlled substances. The training will be used by the designee to determine whether reasonable suspicion exists to require an employee to undergo testing. (Ord. 2005-03 (part), 2005: Ord. 97-6 §2(part), 1997: Ord. 95-18 §1 (part), 1996).
2.41.070 Enforcement.
A supervisor who has reasonable suspicion to believe that an employee’s job performance may be impaired by drugs or alcohol shall immediately report the objective facts upon which he has formed that belief to the borough manager. If the borough manager concludes that the objective facts observed by the supervisor or, upon further investigation, independently finds reasonable suspicion, he may:
A. Direct the employee to submit to a drug/alcohol test; or
B. Authorize a search, with or without employee consent, of all areas and property in which the borough maintains control or joint control with the employee. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.080 Pre-employment testing.
A. All new borough employees except students working under the Bristol Bay Borough School District Student Work Program are required to pass a pre-employment drug and alcohol test prior to hire. The test will be administered after a conditional offer of employment has been made and prior to any tentative start date. Additionally, drug testing will continue to be done annually on all DOT and non-DOT Bristol Bay Borough employees.
B. A positive test will exclude an applicant from being hired.
C. All prospective hires will be tested under the procedures contained in this policy which are consistent with the procedures for CDL holders. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.090 Reasonable suspicion.
"Reasonable suspicion" is a belief based on objective facts sufficient to lead a reasonable person to believe that an employee is under the influence of drugs or alcohol so that the employee’s ability to perform the functions of the job is impaired or that the employee’s ability to perform his/her job safely is reduced. For example, any of the following, alone or in combination, may constitute reasonable suspicion:
A. Slurred speech;
B. Irregular or unusual speech patterns;
C. Impaired judgment;
D. Alcohol odor on breath;
E. Uncoordinated walking or movement;
F. Unusual or irregular behavior such as inattentiveness, listlessness, hyperactivity, hostility or aggressiveness;
G. Possession of alcohol or drugs. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.100 Impairment.
A supervisor who has formed a belief based upon reasonable suspicion that an employee may be impaired because of drug or alcohol use shall immediately present his findings, together with the factual basis upon which such findings are made, to the borough manager. In the event that the borough manager agrees that there is reasonable suspicion to believe that the employee may be impaired because of drug or alcohol use or has violated other provisions of Section 2.41.050 of this chapter, he shall immediately relieve the employee of his/her duties. The employee shall then be placed on paid leave status. The borough manager may, in addition, require a drug or alcohol test. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.110 Drug and alcohol testing.
A. A drug test under this policy is a urinalysis (for drugs) and an evidential breathalyzer test (for alcohol) administered under approved conditions and procedures conducted for the sole purpose of detecting drugs and alcohol. Other methods to detect the presence of alcohol may be added at a later date if approved by the FHWA, including blood/alcohol and saliva tests. The test will be conducted by a borough-appointed medical laboratory and paid for by the borough.
B. An employee may be ordered to submit to a test or an applicant for employment directed to test by the borough manager. Following authorization for reasonable cause or post-accident drug testing, the supervisor or other authorized person will transport the employee to the designated laboratory.
C. In the case of an applicant for employment or follow-up testing the individual shall appear at the designated laboratory at the time instructed by the borough manager or his designee.
D. The subject (employee or applicant) will be interviewed by laboratory personnel prior to the sample collection to determine whether the subject is currently using drugs under medical supervision and/or taking over-the-counter medications which might reasonably impact the test.
E. The room where the sample is obtained must be private and secure. Documentation shall be maintained that the area has been searched and is free of any foreign substance. For all general employees, CDL holders, and individuals tested under the reasonable suspicion standard no observer shall be present when the sample is collected. Procedural actions shall be taken in all tests to ensure the sample is from the subject and was actually passed at the time noted on the record.
F. In the case of job applicants for uniformed fire and police (under separate policy), an observer of the same sex shall be present when the urine sample is taken. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.120 Processing urine samples.
A. Each step in the collection and processing of the urine specimen shall be documented to establish procedural integrity and the chain of custody. When requested for CDL and transit administration, testing shall be under SAMHSA (Substance Abuse and Mental Health Services Administration [formally NIDA standards]) testing procedures and approved laboratories.
B. All testing will be done using SAMHSA procedures and threshold levels.
C. Confirmation testing will be conducted using gas chromatography-mass spectrometry. The urine sample shall be retained for twelve months by proper storage method to allow for further testing if necessary.
D. Specimen samples shall be sealed and labeled. Samples shall be stored in a secure and refrigerated atmosphere. A large enough sample will be taken to allow for a second, follow-up test.
E. Any sample which has been adulterated or is shown to be a substance other than urine shall be reported as such. Any applicant or employee providing false information about a urine or breath specimen or who attempts to contaminate such sample shall be subject to removal from consideration for hiring or termination. (Ord. 2005-03 (part), 2005: Ord. 97-6 §2(part), 1997: Ord. 95-18 §1(part), 1996).
2.41.130 Drugs tested.
The laboratory shall test for the following drugs at levels that meet or exceed the limits hereafter set forth:
|
Drug |
Screening Level |
Confirmation Level* |
|
Amphetamines |
1,000 ng/ml |
500+ ng/mL |
|
Cocaine Metab. |
300 ng/ml |
150+ ng/mL |
|
Opiates |
300 ng/ml |
300+ ng/mL |
|
PCP (Phencyclidine) |
25 mg/ml |
25+ ng/mL |
|
THC (Marijuana) |
100 ng/ml |
15+ ng/mL |
|
Alcohol |
--- |
0.04** |
* SAMHSA specified threshold.
** Tested through an evidential breathalyzer instrument at a level of 0.04 alcohol/breath concentration or greater, expressed in terms of grams per two hundred ten liters of breath.
(Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.140 Results of drug testing.
A. The laboratory will review the results of the test and determine if the sample contains any illegal drug or legal drug or alcohol at levels that would cause impairment or reveal its use in an illegal manner. The lab director will also review the medical history made available by the subject when a confirmed positive test could have resulted from a legally prescribed medication.
B. For all CDL holders, mechanics and borough employees the results shall be forwarded immediately to the borough designated medical review officer (MRO) for further review.
C. The borough manager will provide a copy of the drug testing results to the employee. (Ord. 2005-03 (part), 2005: Ord. 97-6 §2(part), 1997: Ord. 95-18 §1(part), 1996).
2.41.150 Evaluation of legal drug use.
In the case of prescriptive drug use that may affect an employee’s ability to perform his/her job safely, the laboratory director or, in the case of employees and all CDL testing, the borough’s designated medical review officer, will require the subject to provide by the next scheduled work day a bona fide verification of a valid current prescription for the drug identified. The applicant shall be dropped from eligibility or the employee will be subject to disciplinary action when:
A. Verification of a valid prescription is not provided and the employee has not previously notified his or her supervisor;
B. The prescription provided is not in the subject’s name. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.160 Alcohol level at 0.04.
When there is a confirmed presence of any illegal drug, or legal drug or alcohol (equal to or greater than 0.04) or in the case of legal drugs, for which in the opinion of the lab director or borough-designated medical review officer (MRO), no reasonable explanation or proof is provided, the subject shall be deemed to have failed the test. When there is a confirmed presence of alcohol at the 0.04 level, the employee is deemed to be unable to safely operate a motor vehicle, operate machinery or perform safety-sensitive work. If these tasks are part of an employee’s job (in the opinion of the supervisor), he/she will be considered unable to work and will be sent home for the remainder of his/her work shift. The individual would be required to take leave without pay. The employee would not be permitted to take sick leave, vacation or compensatory time. The employee would return to work after a period of twenty-four hours or at the beginning of their next work day or shift (whichever period of time is greater) or after another test shows a breath alcohol level of below 0.04. Under this policy a breathalyzer test of 0.04 or above would be considered a positive test and would result in disciplinary action. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.170 Job applicants.
A. In the case of job applicants, the borough manager or borough MRO shall notify the applicant. An opportunity to have the original urine sample retested at the applicant’s expense shall be afforded. The applicant must request a re-test within seventy-two hours. If there is a confirmed positive test, the borough manager shall notify the department and the applicant shall be removed from eligibility for hire.
B. Pre-employment test results for uniformed police officers (covered under separate policy) will be reported directly to the police chief or designee. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1 (part), 1996).
2.41.180 Employees.
A. The employee shall be advised of the positive test result by the borough medical review officer. The employee shall be afforded the opportunity to have the original urine sample retested. Retests must be requested within a period of seventy-two hours after notification of an initial positive test by the MRO.
B. A retest will be done by the original lab (at the borough’s expense) unless the employee wishes to pay for a retest at a different laboratory. The second test must be done under SAMHSA procedures, or for CDL holders by a SAMHSA certified lab. If the subject declines a retest, or, the retest confirms the results of the initial test, the borough manager shall be notified. The borough manager shall notify the department head of the results and a determination of appropriate action made. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1 (part), 1996).
2.41.190 Discipline.
A. As with any issue of employee misconduct, an appropriate investigation and assessment of circumstances needs to be made with guidance from the borough manager and the borough attorney. Advice from medical professionals may be sought. A decision to refer for substance abuse evaluation, treatment and/or discipline may be made depending on the nature and severity of misconduct, the employee’s work history, and other pertinent facts and circumstances. In certain situations, follow-up drug testing may be recommended and conducted to ensure the employee remains drug and alcohol free.
B. A referral for evaluation by a substance abuse professional is mandatory for CDL holders when there is a positive test.
C. Any disciplinary action will be carried out in accordance with borough personnel policies and applicable union contract agreements. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.200 Negative test results.
A. Employees who have been tested for drugs and alcohol, where no substance abuse was found, shall receive notice of such findings from the borough manager. A copy of this notice will not be placed in their personnel file, unless requested by the employee. A record of the negative results shall be placed in a confidential folder in a separate, secured file maintained by the borough manager.
B. In the case of job applicants (except police and fire), the hiring department shall be notified by the borough manager that the applicant is clear for hire. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.210 Confidentiality.
A. Laboratory reports of positive test results shall not appear in an employee’s general personnel folder. Information of this nature will be placed in a separate confidential medical folder that will be maintained by the borough manager.
B. The positive reports or test results shall be disclosed to the department head only on a need-to-know basis. Disclosures without patient consent may also occur when: (1) the information is compelled by law or by judicial or administrative process; (2) the information has been placed at issue in a formal dispute between the borough and the employee; (3) the information is to be used in administering an employee benefit plan such as for drug or alcohol treatment; (4) the information is needed by medical personnel for the diagnosis or treatment of the patient (employee) who is unable to authorize disclosure. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.220 Record retention requirements.
A. The borough shall maintain all records related to drug and alcohol testing for each driver in a secure location with controlled access. The borough shall keep all documents sent by the laboratory or the collection site.
B. The following records shall be maintained for a minimum of five years:
1. Records of alcohol test results indicating an alcohol concentration of 0.04 or greater;
2. Records of verified positive drug test results;
3. Documentation of refusal to take required alcohol and/or drug tests;
4. Evaluations and referrals;
5. Copy of annual report.
C. Records related to alcohol and drug collection process and training shall be maintained for a minimum of two years.
D. Records of negative and canceled drug test results and alcohol test results with a concentration of less than 0.04 shall be maintained for a minimum of one year.
E. No records containing driver information required by this policy will be released except as provided as follows:
1. Upon written request of the employee;
2. Upon written authorization of the employee, records will be disclosed to a subsequent employer subject to use as specified by the employee;
3. Upon specific, written authorization by the employee, records will be released to an identified person, for use only as specified by the employee.
F. Records may be disclosed to a decision-maker in a lawsuit, grievance or other proceeding initiated by or on behalf of the employee, including, but not limited to, a worker’s compensation, unemployment compensation or other proceeding relating to a benefit sought by the driver. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).
2.41.230 Drug and alcohol testing for commercial driver’s license (CDL) holders.
All employees of the borough who are required to have a commercial driver’s license (CDL) as part of their jobs are subject to drug and alcohol testing as required by the U.S. Department of Transportation through the Federal Highway Administration. The following procedures apply to CDL holders.
A. Pre-Employment Testing. All new employees who must have a CDL as a job requirement must pass a pre-employment drug and alcohol test prior to hire. The test will be administered after a conditional offer of employment has been made and prior to any tentative start date or in the fire department, before driving a CDL vehicle. This test will be conducted under the SAMHSA standards and protocols. See earlier sections of this chapter for a list of drugs and confirmation levels. The test will involve an unobserved urine sample collection for drug testing and an evidential breathalyzer test administered by a breath alcohol technician (BAT) for alcohol. The procedures and protocols are identical to those for all borough employees covered above unless specifically noted. All urine drug testing will be conducted by a SAMHSA certified laboratory.
B. Pre-Duty Consumption of Alcohol. Employees are prohibited from consuming alcohol for four hours before going on duty or before operating a commercial motor vehicle.
This regulation from the FHWA applies to scheduled shifts and all fallout situations. If an employee cannot meet this requirement, it is his/her responsibility to tell their supervisor, or person initiating the fallout, that they cannot report to work.
C. Reasonable Suspicion Testing. The definitions and protocols for reasonable suspicion drug and alcohol testing for CDL holders are the same as noted above for all borough employees.
D. Random Testing.
1. During the calendar year, fifty percent of CDL holders and non-DOT borough employees will be tested on a random basis for the presence of drugs and alcohol. Approximately quarterly, although testing could occur anytime during the year, names of CDL holders and non-DOT borough employees will be drawn randomly using a computer program to select individuals for drug and alcohol testing. These individuals will be scheduled for testing. All individuals will be required to go to a collection site for drug and alcohol testing. No advance warning will be given to employees regarding the date and time of the random test.
2. The urine sample collection will be the same as noted above in the policy. Urine sample collection will be in an unobserved setting with collection and chain of custody protocols as required under SAMHSA regulations.
3. Individuals who are scheduled to drive a CDL vehicle or perform a safety-sensitive function (such as a mechanic working on a police or fire vehicle, working brakes, etc.) on the day of the random test shall also take a breathalyzer test for alcohol. Test results and the handling of any positive tests are the same as noted above for all employees.
4. Any accident involving a CDL vehicle must be reported as soon as possible by the employee to his/her supervisor. The supervisor should investigate the circumstances of the accident and determine if there is reasonable suspicion to require a drug and alcohol test. Testing is mandated in the following circumstances:
a. An accident that has resulted in the loss of human life;
b. An accident in which the driver receives a citation and there is an injury requiring medical attention away from the scene of the accident;
c. An accident in which the driver receives a citation and any accident in which the vehicle must be towed from the scene.
5. Additional rules under the Federal Transit Act apply to borough mechanics who have worked on a transit vehicle involved in an accident and their immediate supervisor. An individual in a safety-sensitive position, such as a mechanic, is subject to drug and alcohol testing, when in the opinion of a supervisor, employee performance caused or contributed to the accident. For example, a mechanic would be tested when he/she worked on a transit coach’s brakes just prior to an accident and a brake problem may have contributed to the accident.
6. A post-accident drug and alcohol test should be completed as soon as possible. Drug testing must occur no later than thirty-two hours after the accident. Alcohol testing must occur no later than eight hours after the accident. If more than two hours elapse before an alcohol test is administered, the borough is required to prepare and maintain on file an explanation of why a test was not properly administered for the FHWA.
7. A driver is prohibited from consuming alcohol for eight hours after an accident, or until he/she has taken a drug and alcohol test.
Note: A police officer investigating an accident has legal authority under certain circumstances to order a blood sample to be taken for drug and alcohol testing.
E. Return-to-Work Testing. When an employee has tested positive for drugs or alcohol during a random or post-accident test, the same provisions apply as for all employees in the sections of this chapter on discipline and/or treatment/rehabilitation. In addition, the following specific rules apply:
1. Employees will be referred to the EAP program or to other substance abuse counseling as part of their return-to-work requirements.
2. The employee must comply with any recommended rehabilitation.
3. The employee must have a negative retest before being permitted to return to work.
4. Unannounced follow-up tests will be conducted at least six times within the first twelve months after an employee returns to work.
5. Testing may be extended for a period of up to sixty months after return to work. (Ord. 2005-03 (part), 2005: Ord. 95-18 §1(part), 1996).