Chapter 4.120
ALCOHOL AND CONTROLLED SUBSTANCE DEFINITIONS AND TESTING

Sections:

4.120.005    Definitions.

4.120.020    Prohibitions.

4.120.030    Pre-employment testing.

4.120.040    Reasonable suspicion testing – Alcohol.

4.120.050    Reasonable suspicion testing – Controlled substances.

4.120.060    Required observations.

4.120.070    Required observations – Alcohol – Timeframe.

4.120.075    Test not administered following reasonable suspicion determination – Alcohol.

4.120.080    Reporting to work or remaining on duty while impaired prohibited.

4.120.090    Action based on employee behavior prohibited.

4.120.100    Written record required.

4.120.110    Post-accident testing.

4.120.120    Alcohol test not administered following an accident.

4.120.130    Controlled substance test not administered following an accident.

4.120.140    Employee availability for testing.

4.120.150    Test results – Alcohol.

4.120.160    Test results – Controlled substances.

4.120.170    Exceptions.

4.120.190    City notification obligations.

4.120.200    Testing procedures.

4.120.210    Employee refusal to submit to a required alcohol or controlled substance test.

4.120.220    Positive test.

4.120.230    Access to test results.

4.120.240    Records retention.

4.120.250    Training for supervisors.

4.120.260    Employee admission of alcohol and controlled substances use.

4.120.270    Self-identification program.

4.120.280    Reoccurrences of alcohol or controlled substance misuse.

4.120.005 Definitions.

For purposes of this title, the following definitions apply:

A. “Alcohol” means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.

B. “Alcohol use” means the drinking or swallowing of any beverage, liquid mixture, or preparation, including any medication, containing alcohol.

C. “Alcohol concentration” (or content) is the alcohol in a volume of breath or blood.

D. “Commerce” means:

1. Any trade, traffic or transportation within the jurisdiction of the United States between a place in a state and a place outside of such state, including a place outside of the United States; and

2. Trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in subsection (D)(1) of this section.

E. “Commercial motor vehicle” or “CMV” means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:

1. Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or

2. Has a gross vehicle weight rating of 26,001 or more pounds; or

3. Is designed to transport 16 or more passengers, including the driver; or

4. Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 USC 5103(b)) and which require the motor vehicle to be placarded under hazardous materials regulations (49 CFR part 172, subpart F).

F. “Confirmation (or confirmatory) drug test” means a second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or metabolite.

G. “Confirmation (or confirmatory) validity test” means a second test performed on a urine specimen to further support a validity test result.

H. “Confirmed drug test” means a confirmation test result received by a medical review officer (MRO) from a laboratory.

I. “Consortium/third party administrator (C/TPA)” means a service agent that provides or coordinates one or more drug and/or alcohol testing services to the city. C/TPAs typically provide or coordinate the provision of a number of such services and perform administrative tasks concerning the operation of the employers’ drug and alcohol testing programs. This term includes, but is not limited to, groups of employers who join together to administer, as a single entity, the city’s drug and alcohol testing programs of its members (e.g., having a combined random testing pool). C/TPAs are not “employers” for purposes of this chapter.

J. “Controlled substance” includes, but is not limited to, marijuana, cocaine, opiates, amphetamines and phencyclidine.

K. “Designated employer representative (DER)” is an individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from their duties and to make required decisions in the testing and appraisal processes.

L. “Disabling damage” means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs.

1. Inclusions. Damage to motor vehicles that could have been driven, but would have been further damaged if so driven.

2. Exclusions.

a. Damage which can be remedied temporarily at the scene of the accident without special tools or parts.

b. Tire disablement without other damage even if no spare tire is available.

c. Headlight or taillight damage.

d. Damage to turn signals, horn, or windshield wipers which make them inoperative.

M. “Driver” means any person who operates a commercial motor vehicle. This includes, but is not limited to: full-time, part-time, seasonal, temporary, on call drivers, leased drivers and independent owner-operator contractors.

N. “Licensed medical practitioner” means a person who is licensed, certified, or registered, in accordance with applicable federal, state, local, or foreign laws and regulations, to prescribe controlled substances and other drugs.

O. “Medical review officer (MRO)” is a person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by the city’s drug testing program and evaluating medical explanations for certain drug test results.

P. “Positive rate for random drug testing” means the number of verified positive results for random drug tests conducted under this chapter plus the number of refusals of random drug tests required by this chapter, divided by the total number of random drug test results (i.e., positives, negatives, and refusals).

Q. “Refuse to submit (to an alcohol or controlled substances test)” means that an employee:

1. Fails to appear for any test (except a pre-employment test) within two hours of having been directed to do so by the city;

2. Fails to remain at the testing site until the testing process is complete;

3. Fails to provide a urine specimen for any drug test required by this title;

4. In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the driver’s provision of a specimen;

5. Fails to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure;

6. Fails or declines to take a second test the employer or collector has directed the employee to take;

7. Fails to undergo a medical examination or evaluation, as directed by the medical review officer (MRO) as part of the verification process, or as directed by the designated employer representative (DER). In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment;

8. Fails to cooperate with any part of the testing process (e.g., refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process); or

9. Is reported by the medical review officer (MRO) as having a verified adulterated or substituted test result.

R. “Screening test (or initial test)” means:

1. In drug testing, a test to eliminate “negative” urine specimens from further analysis or to identify a specimen that requires additional testing for the presence of drugs.

2. In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath, saliva, or blood specimen.

S. “Stand-down” means the practice of temporarily removing an employee from the performance of his or her job duties based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test, before the MRO has completed verification of the test results.

T. “Substance abuse professional” means a licensed physician or a licensed or certified psychologist, social worker, employee assistance professional, a state-licensed or certified marriage and family therapist or drug and alcohol counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC)) or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC); or by the National Board for Certified Counselors, Inc., and Affiliates/Master Addictions Counselor (NBCC) with knowledge about and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.

U. “Violation rate” for random alcohol testing means the number of 0.02 and above random alcohol confirmation test results conducted under this chapter plus the number of refusals of random alcohol tests required by this chapter, divided by the total number of random alcohol screening tests (including refusals). (Ord. 12-001 § 3, 2013)

4.120.020 Prohibitions.

A. An employee shall not:

1. Report for duty or remain on duty having an alcohol concentration of 0.02 or greater;

2. Report for duty within four hours of using alcohol or controlled substances;

3. Use alcohol or controlled substance while on duty, including during breaks or meals;

4. Possess alcohol or controlled substances while on duty, including during breaks or meals;

5. Use alcohol for eight hours following an accident, or until the employee undergoes a post-accident alcohol or controlled substance test, whichever occurs first;

6. Refuse to take an alcohol or controlled substance test when ordered by the city;

7. Report for duty or remain on duty using any drug or substance, identified in 21 CFR 1308.11 Schedule I;

8. Report for duty or remain on duty using any non-Schedule I drug or substance that is identified in the other schedules in 21 CFR 1308 except when the use is a licensed medical practitioner, as defined in this chapter, who is familiar with the employee’s medical history and has advised the employee that the substance will not adversely affect the employee’s ability to safely perform their work functions;

9. Report for duty, remain on duty or perform, if the employee tests positive or has adulterated or substituted a test specimen for controlled substances. No employer having knowledge that an employee has tested positive or has adulterated or substituted a test specimen for controlled substances shall permit the employee to perform their work functions.

B. A supervisor or city official having actual knowledge that an employee has used a controlled substance shall not permit the employee to perform or continue to perform his or her duties.

C. An employee shall report any type of therapeutic drug use prescribed by his or her doctor to their supervisor.

D. If an employee engages in the conduct listed in this chapter, the employee is subject to disciplinary action as set forth in this title. (Ord. 12-001 § 3, 2013)

4.120.030 Pre-employment testing.

A. For the purposes of pre-employment testing only, an employee includes applicants and current employees selected for employment.

1. After acceptance of a position, the employee shall undergo testing for controlled substances prior to reporting for duty.

2. An employee shall not perform his or her job duties unless the employee has received a controlled substances test result from the medical review officer (MRO) or consortium/third party administrator (C/TPA) indicating a verified negative test.

B. The applicable designated employer representative (DER) will obtain information on the employee’s alcohol tests with a concentration result of 0.02 or greater, positive controlled substances test results, and refusals to be tested, within the preceding two years, which are maintained by the employee’s previous employers. An employee shall not perform his or her job duties for more than 14 days without obtaining the information.

C. An employee shall not perform his or her job duties if the city obtains information showing an alcohol test with a concentration of 0.02 or greater, or a verified positive controlled substances test results, or refusal to be tested, unless the applicable designated employer representative (DER) obtains information on the employee’s subsequent substance abuse professional evaluation and associated successful return-to-duty testing. (Ord. 12-001 § 3, 2013)

4.120.040 Reasonable suspicion testing – Alcohol.

The city shall require an employee to submit to an alcohol test when the city believes the employee has violated the prohibitions of this title concerning alcohol. The city’s determination that reasonable suspicion exists to require the employee to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee. (Ord. 12-001 § 3, 2013)

4.120.050 Reasonable suspicion testing – Controlled substances.

The city shall require an employee to submit to a controlled substances test when the city has reasonable suspicion to believe that the employee has violated the prohibitions of this title concerning controlled substances. The city’s determination that reasonable suspicion exists must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee. The observations may include indications of the chronic and withdrawal effects of controlled substances. (Ord. 12-001 § 3, 2013)

4.120.060 Required observations.

The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or city official who is trained in accordance with this title. The alcohol or controlled substances test shall performed by a third party. (Ord. 12-001 § 3, 2013)

4.120.070 Required observations – Alcohol – Timeframe.

Alcohol testing is authorized only if the observations required by this title are made during, just preceding, or just after the period of the work day that the employee is required to be in compliance. (Ord. 12-001 § 3, 2013)

4.120.075 Test not administered following reasonable suspicion determination – Alcohol.

A. If an alcohol test required by this title is not administered within two hours following the reasonable suspicion determination, the city shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered.

B. If the alcohol test required by this title is not administered within eight hours following the reasonable suspicion determination, the city shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.

C. The report(s) shall be forwarded to the applicable designated employer representative (DER). (Ord. 12-001 § 3, 2013)

4.120.080 Reporting to work or remaining on duty while impaired prohibited.

Notwithstanding the absence of a reasonable suspicion alcohol test under this title, no employee shall report for duty or remain on duty while the employee is under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse, nor shall the city permit the employee to perform or continue to perform his or her duties, until:

A. An alcohol test is administered and the employee’s alcohol concentration measures less than 0.02; or

B. Twenty-four hours have elapsed following the determination that there is reasonable suspicion to believe that the employee has violated the prohibitions concerning the use of alcohol. (Ord. 12-001 § 3, 2013)

4.120.090 Action based on employee behavior prohibited.

Except as provided in this title, the city shall not take any action against an employee based solely on the employee’s behavior and appearance, with respect to alcohol use, in the absence of an alcohol test. (Ord. 12-001 § 3, 2013)

4.120.100 Written record required.

A written record shall be made of the observations leading to an alcohol or controlled substance reasonable suspicion test, and signed by the supervisor or city official who made the observation, within 24 hours of the observed behavior or before the results of the controlled substance tests are released, whichever is earlier. (Ord. 12-001 § 3, 2013)

4.120.110 Post-accident testing.

As soon as practicable following a motor vehicle accident involving a city vehicle, the city shall test the employee for alcohol and controlled substances if:

A. The accident involved the loss of human life; or

B. A citation is issued under state or local law for a moving traffic violation arising from the accident; or

C. The accident involved:

1. Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or

2. One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle. (Ord. 12-001 § 3, 2013)

4.120.120 Alcohol test not administered following an accident.

A. If an alcohol test is not administered within two hours following the accident, the city shall prepare and maintain on file a record stating the reasons the test was not promptly administered.

B. If an alcohol test is not administered within eight hours following the accident, the city shall cease attempts to administer an alcohol test and shall prepare and maintain on file a record stating the reasons the test was not promptly administered.

C. Records shall be submitted to the Federal Motor Carrier Safety Administration (FMCSA) upon request. (Ord. 12-001 § 3, 2013)

4.120.130 Controlled substance test not administered following an accident.

A. If a controlled substance test is not administered within 32 hours following the accident, the city shall cease attempts to administer a controlled substance test and prepare and maintain on file a record stating the reasons the test was not promptly administered.

B. Records shall be submitted to the Federal Motor Carrier Safety Administration (FMCSA) upon request. (Ord. 12-001 § 3, 2013)

4.120.140 Employee availability for testing.

An employee who is subject to post-accident testing shall remain readily available for such testing, or may be deemed by the city to have refused to submit to testing. Nothing in this section shall be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care. (Ord. 12-001 § 3, 2013)

4.120.150 Test results – Alcohol.

The results of a breath or blood test for the use of alcohol, conducted by federal, state, or local officials having independent authority for the test, shall be considered to meet the requirements of this chapter, provided such tests conform to the applicable federal, state or local alcohol testing requirements, and that the results of the tests are obtained by the city. (Ord. 12-001 § 3, 2013)

4.120.160 Test results – Controlled substances.

The results of a urine test for the use of controlled substances, conducted by federal, state, or local officials having independent authority for the test, shall be considered to meet the requirements of this chapter, provided such tests conform to the applicable federal, state or local controlled substances testing requirements, and that the results of the tests are obtained by the city. (Ord. 12-001 § 3, 2013)

4.120.170 Exceptions.

This chapter does not apply to an occurrence:

A. Involving only boarding or alighting from a stationary motor vehicle; or

B. Involving only the loading or unloading of cargo. (Ord. 12-001 § 3, 2013)

4.120.190 City notification obligations.

The designated employer representative (DER) will:

A. Notify an applicant who has accepted a position with the city of the results of a pre-employment controlled substance test conducted under this chapter, if the applicant requests such results within 60 calendar days of being notified of the disposition of the employment application;

B. Notify an employee of the results of random (in the case of an employee with a commercial driver’s license) reasonable suspicion and post-accident tests for controlled substances conducted under this chapter if the test results are verified positive;

C. Contact the employee with the results of the tests. The employee may request to meet with the medical review officer to discuss the results. (Ord. 12-001 § 3, 2013)

4.120.200 Testing procedures.

The city shall ensure that all alcohol or controlled substances testing conducted under this policy complies with the procedures set forth in this title.

A. Alcohol.

1. Tests will be conducted under the guidance of a breath alcohol technician selected by the city.

2. The site(s) will afford privacy to the individual being tested. If the result of an initial test is an alcohol concentration of less than 0.02, no further testing is required and the results are transmitted to the DER in a confidential manner.

3. If the result of an initial test is an alcohol concentration of 0.02 or greater, a confirmation test will be performed within 20 minutes. The results of an initial test and the confirmation test are printed on the breath alcohol test forms, signed by both the breath alcohol technician and the driver, and transmitted to the applicable designated employer representative (DER) in a confidential manner.

B. Controlled Substances.

1. The city requires testing for marijuana, cocaine, opiates, amphetamines and phencyclidine. Tests for these substances will be conducted under the guidance of the medical review officer selected by the city at one or more designated collection sites. Collection of urine samples will allow individual privacy unless there is a reason to believe that a particular individual may alter or substitute the specimen. It is a violation of federal law and this policy to adulterate or dilute a specimen during the collection procedure.

2. Test results are given to the medical review officer for analyzing and reporting to the applicable DER. (Ord. 12-001 § 3, 2013)

4.120.210 Employee refusal to submit to a required alcohol or controlled substance test.

A. No employee shall refuse to submit to a pre-employment controlled substance test, a post-accident required alcohol or controlled substance test, a random alcohol or controlled substance test, a reasonable suspicion alcohol or controlled substance test, a return-to-duty alcohol or controlled substance test, follow-up alcohol or controlled substance test.

B. The city shall not permit an employee who refuses to submit to such tests to perform or continue to perform his or her duties. The driver will be immediately removed from duty and such refusal will be treated as a positive test.

C. Failure to provide adequate breath for testing when required without a valid medical explanation, failure to remain available for post-accident testing, failure to provide adequate urine for testing without a valid medical explanation, engaging in conduct that obstructs the testing process, or failure to sign the alcohol testing form constitutes a refusal to submit to testing. (Ord. 12-001 § 3, 2013)

4.120.220 Positive test.

When an employee has engaged in prohibited conduct, the employee will be subject to discipline up to and including termination. (Ord. 12-001 § 3, 2013)

4.120.230 Access to test results.

An employee is entitled, upon written request, to obtain copies of records pertaining to the employee’s alcohol or controlled substances test results. (Ord. 12-001 § 3, 2013)

4.120.240 Records retention.

A. The human resources office shall maintain records of alcohol misuse and controlled substances use prevention programs.

B. The records shall be maintained in a secure location with controlled access.

C. The records shall be retained according to the city’s adopted retention schedule. (Ord. 12-001 § 3, 2013)

4.120.250 Training for supervisors.

The city shall ensure that all persons designated to supervise will receive at least 60 minutes of training on alcohol misuse and an additional 60 minutes of training on controlled substances use. This training will be used by the supervisors to determine whether reasonable suspicion exists to require an employee to undergo testing. The training shall include the physical, behavioral, speech and performance indicators of probable alcohol misuse and use of controlled substances; recurrent training is not required. (Ord. 12-001 § 3, 2013)

4.120.260 Employee admission of alcohol and controlled substances use.

Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of this policy; provided, that:

A. The admission is in writing and in compliance with the city’s voluntary self-identification program;

B. The employee does not self-identify in order to avoid testing under the requirements of the program;

C. The employee makes the admission of alcohol misuse or controlled substances use prior to performing his or her duties; and

D. The employee does not perform his or her duties until the city is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines. (Ord. 12-001 § 3, 2013)

4.120.270 Self-identification program.

A. The city will not take adverse action against an employee making a voluntary admission of alcohol misuse or controlled substances use within the parameters of this program and PMC 4.120.260;

B. The city will allow the employee 10 working days to seek evaluation, education or treatment to establish control over the employee’s drug or alcohol problem and provide proof to the DER and supervisor of having undergone assessment screening. The proof must contain the treatment recommendations of the substance abuse professional;

C. The city will permit the employee to return to duty only upon successful completion of an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert, i.e., employee assistance professional, substance abuse professional, or qualified drug and alcohol counselor;

D. The city will ensure that the employee:

1. Undergo a return-to-duty test with a result indicating an alcohol concentration of less than 0.02; and/or

2. Undergo a return-to-duty controlled substance test with a verified negative test result for controlled substances use; and

3. At least monthly, the employee will furnish the DER and supervisor with proof of their continuing participation in the recommended treatment program until completed. (Ord. 12-001 § 3, 2013)

4.120.280 Reoccurrences of alcohol or controlled substance misuse.

Reoccurrences of alcohol or controlled substance misuse will be subject to disciplinary action up to and including the termination of employment. (Ord. 12-001 § 3, 2013)