PART 1 City-Wide Policy
Effective date: May 15, 2024
1. Issuing Agency: The Human Resources Department and the Department of Finance and Administrative Services Division of Risk Management, Risk Management Division.
2. Scope: These rules have general applicability to all prospective and current employees of the City of Albuquerque. This includes classified and unclassified employees, interns, volunteers, temporary, and seasonal employees.
3. Statutory Authority: ROA, 1994, § 2-15-1, et seq.; Council Resolutions 65-1995 and 78-1995; 21 U.S.C. § 812; 41 U.S.C. § 701; 21 C.F.R. §§ 1300.11 through 1300.15; 49 C.F.R. §§ 40, 382 and 655; ROA, 1994, § 3-1-1; ROA, 1994, § 3-2-1, NMSA 1978 §§ 26-2B-1 through -10.
4. Duration: Until revoked.
5. Effective Date: May 15, 2024 unless a later date is specified at the end of a section.
6. OBJECTIVE: This policy provides a safer environment for all employees and the public and establishes guidelines to maintain a drug and alcohol-free workplace. Specifically:
A. The City has a vital interest in maintaining safe, healthy, and efficient working conditions for its employees. Being under the influence of alcohol, or the presence of certain drugs in the body system, may pose serious safety and health risks not only to the user but to all those in contact with the user.
B. The City Council adopted an employee substance abuse and drug and alcohol testing resolution and charged the Chief Administrative Officer to promulgate a policy to implement those directives. This policy is adopted by the Chief Administrative Officer to provide a detailed explanation of the City of Albuquerque substance abuse policy, prohibitions, and procedures.
C. It is intended that this Substance Abuse Policy will be interpreted and implemented in a manner consistent with all applicable anti-discrimination requirements, including the Americans with Disabilities Act. To that end, all supervisors and managers are required to use and apply all aspects of this policy in an unbiased and impartial manner. Any supervisor or manager who knowingly disregards the requirements of this policy, or who is found to deliberately misuse the policy in regard to subordinates, shall be subject to disciplinary action, up to and including termination.
7. Definitions:
A. Accident. An occurrence associated with the operation of City equipment, machinery or vehicles, if: (1) an individual dies; (2) an individual suffers a bodily injury and immediately receives medical treatment away from the scene of the accident; or (3) one or more vehicles incurs disabling damage (defined herein) as the result of the occurrence and is transported away from the scene by a tow truck or other vehicle.
B. Adulterated Specimen. A specimen that has been altered, as evidenced by test results showing either a substance that is not a normal constituent for that type of specimen or showing an abnormal concentration of an internally produced substance.
C. Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols, including but not limited to methyl or isopropyl, contained in any beverage, mixture, mouthwash, candy, food, preparation or medication.
D. Alcohol Concentration. The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as measured by an evidential breath testing device.
E. Breath Alcohol Technician (BAT). A person who instructs and assists employees in the alcohol testing process and operates an evidential breath testing device.
F. Canceled Test. A drug or alcohol test that has a problem identified that cannot be or has not been corrected, or which this part otherwise requires to be canceled. A canceled test is neither positive nor negative.
G. Childcare Employee. Any employee in the Child and Family Development Division within the Family and Community Services Department.
H. Collection Site. A place selected by the employer where employees present themselves for the purpose of providing a urine specimen for a drug test and for the purpose of providing breath for an alcohol test.
I. Commercial Motor Vehicle. Any self-propelled or towed vehicle used when the vehicle has a gross vehicle weight rating or gross combination weight rating of 26,001 or more pounds, or the vehicle is designated to transport more than 15 passengers including the driver, or the vehicle is used in the transportation of hazardous materials in a quantity requiring placarding.
J. DOT. All Department of Transportation agencies, including, but not limited to, the US Coast Guard (USCG), the Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Transit Administration (FTA), the National Highway Traffic Safety Administration (NHTSA), the Research and Special Programs Administration (RSPA) and the Office of the Secretary (OST). These terms include any designee of a DOT agency.
K. Designated Employer Representative (DER). An employee authorized by the employer to take immediate action to remove employees from safety- sensitive duties and to make required decisions in testing. The DER also receives test results and other communication for the employer consistent with the requirements of 49 CFR §§ 40, 382, and 655, as amended.
L. Dilute Specimen. A urine specimen with creatinine and specific gravity values that are lower than expected for human urine.
M. Disabling Damage. Damage which precludes the departure of any vehicle from the scene of an accident in its usual manner in daylight after simple repairs. This includes damage to vehicles that could have been operated but would have been further damaged by that operation. This does not include: damage which can be temporarily remedied at the scene of an accident without special tools or parts; tire disablement without other damage even if no spare tire is available; or damage to headlights, taillights, turn signals, horn, mirrors or windshield wipers that makes them inoperative.
N. Emergency Call. A call for service which is responded to by Albuquerque Fire Rescue, Albuquerque Community Safety Department or Albuquerque Police Department, including Aviation Police and Open Space Officers.
O. Evidential Breath Testing Device (EBT) is a device approved by the NHTSA for the evidential testing of breath for an alcohol concentration of 0.02 and greater. Approved devices are listed on the National Highway Traffic Safety Administration (NHTSA) conforming products list.
P. HHS. The United States Department of Health and Human Services, or any designee of the Secretary of that Department.
Q. Invalid Drug Test. The result reported by an HHS-certified laboratory in accordance with the criteria established by HHS Mandatory Guidelines when a positive, negative, adulterated, or substituted result cannot be established for a specific drug or specimen validity test.
R. Legally Prescribed Drug. A drug for which an individual has a prescription or other written approval from a physician for the use of a drug in the course of medical treatment. This prescription or written approval must include the patient’s name, the name of the substance, quantity/amount to be taken, and the period of authorization.
S. Medical Review Officer (MRO). A licensed physician (medical doctor or doctor of osteopathy) 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, in accordance with applicable federal regulations.
T. Negative Dilute. A drug test result which is negative for drug or drug metabolites but has a specific gravity value lower than expected for human urine.
U. Negative Drug Test Result. The result reported by an HHS-certified laboratory to an MRO when a specimen contains less than the cutoff concentration of drug metabolites for the specific drug or drug class. The specimen must be a valid specimen to be considered a negative drug test result.
V. Negative Alcohol Test Result. The result from an EBT device when the Alcohol Concentration is less than 0.02.
W. Non-negative Test Result. A test result found to be adulterated, substituted, invalid, or positive for drug metabolites.
X. Observed Collections. Collection of urine under direct observation by a person of the same self-identified gender as the person providing the test sample.
Y. Positive Alcohol Test Result. The result for an alcohol test that identifies an alcohol concentration of 0.02 or greater.
Z. Positive Drug Test Result. The result reported by an HHS-certified laboratory when a specimen contains a drug metabolite concentration equal to or greater than the cutoff concentrations for the specific drug or drug class.
AA. Positive Test Result. A positive drug test result, a positive alcohol test result, or both.
AB. Prohibited Drug or Substance. Illegally Used Controlled Substances or Drugs under the Drug-Free Workplace Act of 1988 (41 U.S.C. § 701), any drug or any substance identified in Schedule I through V of Section 202 of the Controlled Substance Act (21 U.S.C. § 812), and as further defined by 21 C.F.R. §§ 1300.11 through 1300.15. This includes, but is not limited to: marijuana, amphetamines, opioids, phencyclidine (PCP), and cocaine, as well as any drug not approved for medical use by the U.S. Drug Enforcement Administration or the U.S. Food and Drug Administration and any drug cited in 49 C.F.R. § 40.85, as amended. The status of marijuana as a substance prohibited under this policy will not change based upon state laws affecting recreational use or possession. Illegal use includes use of any illegal drug, misuse of legally prescribed drugs, and use of illegally obtained prescription drugs. Anabolic androgenic agents are prohibited drugs for sworn members of the Albuquerque Police Department.
AC. Public Safety Employees. Sworn members of the Albuquerque Police and Fire Departments; and employees of the Community Safety Department who respond to Emergency Calls.
AD. Refusal to Test. A refusal to test includes, but is not limited to, any of the following circumstances:
∙ Failure to appear for any test (excluding pre-employment) within a reasonable time, as determined by the employer, after being directed to do so by the employer.
∙ Failure to remain at the collection/testing site until the testing process is complete;
∙ Failure to provide a urine or breath specimen for any required drug or alcohol test;
∙ In the case of an observed collection in a drug test, failure to permit the observation;
∙ Failure to provide a sufficient amount of urine or breath when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure;
∙ Failure to take an additional test the employer or collector has directed;
∙ Failure to undergo a medical examination or evaluation, as directed by the MRO, as part of the verification process, or as directed by the employer as part of the “shy bladder” or “shy lung” procedures;
∙ Failure to cooperate with any part of the testing process (e.g. refusal to empty pockets when so directed by the collector, behaving in a confrontational way that disrupts the collection process, failure to wash hands have being directed to do so by the collector);
∙ Verbal or written refusal to provide a breath or urine specimen;
∙ For an observed collection, failure to follow the observer’s instructions to raise your clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process;
∙ Possessing or wearing a prosthetic or other device that could be used to interfere with the collection process;
∙ Admission to the collector or MRO that the specimen was adulterated or substituted;
∙ Providing an adulterated or substituted test result, as verified by the MRO;
∙ Failure or refusal to sign Step 2 of the alcohol testing form.
∙ Failure to remain at the scene of an accident prior to submission to drug/alcohol tests without a legitimate explanation;
∙ Failure to refrain from consuming alcohol within eight (8) hours following involvement in an accident without first having submitted to post accident drug or alcohol tests; or
∙ Providing false information in connection with a drug test.
AE. Safety-sensitive Employee. A City employee who (i) is in a Safety- Sensitive Position or performs the duties of a Safety-Sensitive Position as their regular duties, as determined by the Director of the Human Resources Department.
AF. Safety-sensitive Position. A City position which the Director of the Human Resources Department has determined should be classified as safety- sensitive. At a minimum, under Part 1 of this policy all Public Safety Employees, all Childcare Employees, and employees with access to Controlled Substances will be classified in a Safety-Sensitive Position. The following criteria shall be used as a guide for determining additional positions to be classified as safety-sensitive; the extent to which the job responsibilities impact upon the safety of the public; the extent to which the job responsibilities expose the employee or co-worker to hazardous conditions; and, the extent to which the job responsibilities require responsibility for the physical safety of others.
AG. Substance Abuse Counselor (SAC). A licensed or certified physician (medical doctor or doctor of osteopathy), licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor who may or may not be qualified to act as a SAP under 49 CFR § 40 and to whom employees who voluntarily seek treatment of a pending drug and/or alcohol abuse problem before testing positive through the City’s testing program or under any one of the tests listed and defined by this policy.
AH. Substance Abuse Professional (SAP). A licensed or certified physician (medical doctor or doctor of osteopathy), psychologist, social worker, employee assistance professional, or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium/Alcohol and other Drug Abuse) with knowledge of and clinical experience in the diagnosis and treatment of drug and alcohol related disorders and who is qualified to act as a SAP under 49 C.F.R. § 40.
AI. Substituted Specimen. A verified specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human urine.
AJ. Validity Testing. The evaluation of the specimen to determine if it is consistent with normal human urine.
AK. Verified Negative Result. A drug test result reviewed by a medical review officer and determined not to contain prohibited drugs or their metabolites at or above the cutoff levels specified in 49 C.F.R. § 40, as amended or specified in Appendix A for Expanded Panel tests.
AL. Verified Positive Result. A drug test result reviewed by a medical review officer and determined to contain prohibited drugs or their metabolites at or above the cutoff levels specified in 49 C.F.R. § 40, as amended or specified in Appendix A for Expanded Panel tests.
8. Applicability
Part 1 of Chapter 1100 applies to public safety employees and all other employees who have been designated safety-sensitive pursuant to the City’s own authority. Part 1 of Chapter 1100 also requires reasonable suspicion and post-accident testing for all City employees.
9. EDUCATION AND TRAINING
A. This policy shall be provided to every City employee. Training and education programs shall be made available.
B. Supervisors will receive a minimum of sixty minutes of drug and alcohol specialized training designed to promote the necessary skills to:
(1) Inform employees of this policy;
(2) Enforce this policy;
(3) Identify the signs of drug and alcohol use,
(4) Intervene constructively, and
(5) Integrate an employee effectively back into his work group following intervention and treatment.
C. Non-supervisory employees will receive a minimum of sixty minutes training on the effects and consequences of prohibited drug and alcohol use on personal health, safety, and the work environment.
10. Prohibitions
A. Prohibited Conduct
(1) Employees are prohibited from reporting for duty or remaining on duty any time there is a quantifiable presence of a prohibited substance in the body at or above the minimum thresholds defined in 49 C.F.R. § 40, as amended, or defined in Appendix A for Expanded Panel tests unless subject to a below defined exception.
(2) Employees are prohibited from misusing or abusing of prescription and/or non- prescription drugs while performing City business.
(3) Employees are prohibited from using any Prohibited Drug or Substance or beverages containing alcohol or substances containing alcohol (e.g. mouthwash that contains alcohol, medication that contains alcohol, food that contains alcohol, or candy that contains alcohol) while performing City business.
(4) Employees are prohibited from consuming alcohol or any Prohibited Drug or Substance while performing job functions or while on-call to perform job functions. If an on-call employee has consumed alcohol, they must acknowledge the use of alcohol at the time that they are called to report for duty. The employee will subsequently be relieved of his on-call responsibilities and may be subject to disciplinary action.
(5) Employees are prohibited from reporting to work or remaining on duty while having an alcohol concentration of 0.02 or greater regardless of when the alcohol was consumed.
(6) Employees are prohibited from consuming alcohol or any Prohibited Drug or Substance for eight (8) hours following involvement in an accident or until they submit to the post-accident drug and alcohol test, whichever occurs first.
(7) Employees are prohibited from consuming alcohol or any Prohibited Drug or Substance within four (4) hours prior to the performance of job functions.
(8) Employees are prohibited from possessing any amount of alcohol or any Prohibited Drug or Substance while on duty, unless the alcohol is manifested and is being transported as part of a shipment.
(9) Employees are prohibited from consuming alcohol or any Prohibited Drug or Substance during lunch periods, rest breaks, split shift breaks, or anytime the employee is in uniform.
(10) Consistent with the Drug-free Workplace Act of 1988 (41 U.S.C. § 701) and the Personnel Rules and Regulations, employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of or any Prohibited Drug or Substance in the workplace including City premises, City vehicles, while in uniform or while on City business.
(11) Supervisors are prohibited from permitting any employee to perform or continue to perform their job functions if the supervisor has actual knowledge that the employee is using or has used alcohol, has used a Prohibited Drug or Substance, or has adulterated or substituted a test specimen for alcohol or any Prohibited Drug or Substance.
B. Exceptions
(1) The appropriate use of legally prescribed drugs and non-prescription medications is not prohibited. However, any prescription or non-prescription substance which carries a warning label that indicates that mental functioning, motor skills, or judgment may be adversely affected must be reported to the Department Director or Departmental Designee, in accordance with the Personnel Rules and Regulations. This report must be made within seventy-two (72) hours of the prescription initially being filled or before the employee begins utilizing the substance, whichever is sooner. If the employee is able to perform their job functions while under the influence of it, they are required to provide a written release from their personal physician indicating that they can perform their job functions while under the influence of the substance. This release must be provided before the employee begins utilizing the substance or with seventy-two hours of the prescription being initially filled, whichever is sooner. The release must be provided to the Employee’s direct supervisor and the Employee’s Department Director or designee. If an employee is unable to perform their job functions while under the influence of the substance, the Department Director must contact human resources to discuss potential reassignment or potential accommodation in accordance with the Americans with Disabilities Act. An employee who does not disclose the use of a substance that carries such a warning may be subject to disciplinary action, up to and including termination.
11. DRUG STATUTE CONVICTION
Consistent with the Drug Free Workplace Act of 1988 (41 U.S.C. § 701), all employees have a duty to notify their immediate supervisor or the Human Resources Director of the City of any criminal drug statute conviction for a violation occurring in the workplace within five days after such conviction. Failure to comply with this provision shall result in disciplinary action, up to and including termination.
12. Testing Requirements AND Procedures
A. Testing Requirements
(1) All employees may be tested for marijuana, cocaine, amphetamines, opioids, or phencyclidine.
(2) In addition to the substances above, sworn members of Albuquerque Police, Aviation Police and Open Space Officers may also be tested for barbiturates, benzodiazepines, methadone, methaqualone, propoxyphene, and anabolic androgenic agents.
B. Drug Testing Procedures.
(1) All drug and alcohol testing shall be conducted in a manner to assure a high degree of accuracy and reliability. All City drug and alcohol testing will be conducted using techniques, equipment, and laboratory facilities which have been approved by HHS. All testing will be conducted consistent with the procedures put forth in 49 C.F.R. § 40, as amended.
(2) Sworn members of the Albuquerque Police Department will be tested consistent with the procedures in Appendix A. A single urine collection for both steroids and drugs of at least 60 mL will be collected using the split specimen collection method. For tests involving elevated testosterone levels, any positive samples will go through additional carbon isotope testing to determine whether the levels are naturally occurring before the positive results are reported to the Department.
(3) The procedures will be performed in a private, confidential manner and every effort will be made to protect the employee, the integrity of the drug testing procedure, and the validity of the test result.
(4) Consistent with 49 C.F.R. § 40, as amended, collection under direct observation with no advance notice will occur if:
(a) the laboratory reports to the MRO that a specimen is invalid, and the MRO reports to the employer that there was not an adequate medical explanation for the result;
(b) the MRO reports to the employer that the original positive, adulterated, or substituted test result had to be cancelled because the test of the split specimen could not be performed;
(c) the collector observes materials brought to the collection site or the employee’s conduct clearly indicates an attempt to tamper with a specimen;
(d) the temperature on the original specimen was out of range;
(e) the MRO reports a negative-dilute result with a creatine concentration greater than or equal to 2 mg/dL but less than or equal to 5mg/dL; or
(f) the test is a return-to-duty or follow-up test.
C. Alcohol Testing Procedures.
(1) Tests for breath alcohol concentration will be conducted utilizing a National Highway Traffic Safety Administration (NHTSA)-approved Evidential Breath Testing device (EBT) operated by a trained Breath Alcohol Technician (BAT). If the initial test indicates an alcohol concentration of 0.02 or greater, a second test will be performed to confirm the results of the initial test. The confirmatory test must occur on an EBT. The confirmatory test will be conducted at least fifteen minutes after the completion of the initial test. The confirmatory test will be performed using a NHTSA-approved EBT operated by a trained BAT. The EBT will identify each test by a unique sequential identification number. This number, time, and unit identifier will be provided on each EBT printout. The EBT printout along with an approved alcohol testing form will be used to document the test, the subsequent results, and to attribute the test to the correct employee. The test will be performed in a private, confidential manner in accordance with 49 C.F.R. § 40, as amended. The procedure will be followed as prescribed to protect the employee and to maintain the integrity of the alcohol testing procedures and validity of the test result.
(2) An employee who has a confirmed alcohol concentration of 0.02 or greater will be considered a positive alcohol test and in violation of this policy. The BAT will notify the Substance Abuse Program Manager.
(3) The City affirms the need to protect individual dignity, privacy, and confidentiality throughout the testing process. If at any time the integrity of the testing procedures or the validity of the test results is compromised, the test will be canceled. Minor inconsistencies or procedural flaws that do not impact the test result will not result in a cancelled test.
(4) In accordance with 49 C.F.R. § 40, as amended, the alcohol testing form shall be used for all required testing. After an employee is made aware of the requirement and consequences of failure to sign, failure to sign Step 2 of the form will be considered a refusal to test.
13. Testing
A. Pre-Employment Testing.
(1) Applicants for employment and non-safety-sensitive employees who are moving into a Safety-Sensitive Position are required to undergo pre-employment testing.
(2) All offers of employment for Safety-Sensitive Positions shall be extended conditional upon the applicant passing a drug test. An applicant shall not be hired into a Safety-Sensitive Position unless the applicant takes a drug test with a verified negative result.
(3) A non-safety-sensitive employee shall not be placed, transferred or promoted into a Safety-Sensitive Position until the employee takes a drug test with a Verified Negative Result.
(4) If an applicant fails a pre-employment drug test, the conditional offer of employment shall be rescinded. Failure of a pre-employment drug test will disqualify an applicant for employment with the City for a period of one year. Evidence of the absence of drug dependency from a Substance Abuse Professional that meets with 49 C.F.R. § 40, as amended, and the approval of the City and a pre-employment Verified Negative Result will be required prior to further consideration for employment. The cost for the assessment and any subsequent treatment will be the sole responsibility of the applicant.
(5) When an employee being placed, transferred, or promoted from a non-Safety- Sensitive Position to a Safety-Sensitive Position submits a drug test with a Verified Positive Result, the employee shall be subject to disciplinary action in accordance with Section 14 of this Policy.
(6) If a pre-employment, pre-transfer, or promotion test is cancelled, the City will require the applicant to take and pass another pre-employment drug test.
(7) All applicants or employees being placed, transferred, or promoted from a non- Safety-Sensitive Position to a Safety-Sensitive Position are required to execute an authorization form allowing the City to obtain past drug and alcohol test results, including any refusals to test, from each company for whom the employee worked for the previous two (2) years.
(8) In instances where a Safety-Sensitive Employee is on extended leave for a period of ninety (90) days or more regardless of reason, the employee will be required to take a drug test and have a negative test result prior to the conduct of safety-sensitive job functions. A Verified Positive Result will result in disciplinary action in accordance with Section 14 of this Policy.
B. Reasonable Suspicion Testing
(1) Any employee of the City shall be required to undergo a drug and alcohol test if there is reasonable suspicion that the employee's alcohol or drug use could impair job performance or safety or both.
(2) Reasonable suspicion shall mean that there is objective evidence, based upon known specific, contemporaneous, articulable observations of the employee's appearance, behavior, speech or body odor that would lead a reasonable person to believe that the employee:
(a) is under the influence of alcohol or drugs while on duty; or,
(b) is in possession of or using, transferring, selling or purchasing alcohol or drugs during work hours including lunch or break or while on City property or in a City vehicle; or,
(c) is a Public Safety Employee who has recently illegally possessed, transferred, used or sold a Prohibited Drug or Substance.
(3) An employee's admission of abuse of alcohol or use of a Prohibited Drug or Substance to a supervisor in his chain of command, an EAP Counselor, or a provider of medical services under contract to the City shall constitute reasonable suspicion when the use or abuse could impair job performance, safety or both and the employee is not already a participant in a drug, alcohol, or drug and alcohol treatment program.
(4) The Department shall be responsible for transporting the employee to the testing site. Supervisors are to avoid placing themselves or others into situations which might endanger the physical safety of those present. The impacted employee shall be placed on leave with pay status in accordance with the Personnel Rules and Regulations. An employee who refuses an instruction to submit to a drug, alcohol, or drug and alcohol test shall not be permitted to finish his or her shift and shall immediately be placed on leave with pay status pending disciplinary action in accordance with the Results and Appeals section herein.
(5) When an employee reports to the Employee Health Center for treatment or examination and the health care provider has a reasonable suspicion that the employee is a substance abuser, the health care provider shall refer the employee to the DER who shall refer the employee to the SAP for substance abuse testing and assessment. The DER shall notify the appropriate department director or his designee who shall place the employee on leave with pay status in accordance with the Personnel Rules and Regulations.
(6) A written record of the observations which led to a drug and alcohol test based on reasonable suspicion shall be prepared and signed by the supervisor making the observation within 24 hours of the observation or prior to the release of the test results. This written record shall be submitted to the Substance Abuse Program Manager and the City's Medical Review Officer and shall be attached to the forms reporting the test results.
(7) An employee who submits a breath and/or urine sample for a reasonable suspicion drug and alcohol test which is determined to be a Verified Positive Result shall be subject to disciplinary action in accordance with Section 14 of this policy.
(8) Any employee who refuses to submit to a breath and/or urine sample for a reasonable suspicion drug and alcohol test shall be subject to disciplinary action in accordance with Section 14 of this policy.
C. Post-Accident Testing
(1) As soon as practicable following an accident as defined in these regulations, the appropriate department director or designee shall cause the drug and alcohol testing of any employee whose performance could have contributed to the accident using the best information available at the time of the decision.
(2) If, during the course of the accident investigation, the supervisor has reasonable suspicion that the employee may be under the influence of alcohol or drugs, the supervisor will ensure that a reasonable suspicion drug and alcohol test is conducted as outlined in Section 13(B) of this policy. The employee shall be placed on administrative leave with pay in accordance with Personnel Rules and Regulations until the test result is available.
(3) The appropriate department director or designee shall ensure that an employee required to be tested under this section is tested as soon as practicable and within eight (8) hours of the accident. An employee who is subject to post-accident testing who fails to remain readily available for such testing, including notifying a supervisor of his or her location if he or she leaves the scene of the accident prior to submission to such test, may be deemed to have refused to submit to testing.
(4) Nothing in this section shall be construed to require the delay of necessary medical attention for the injured following an accident or to prohibit an employee 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.
(5) In the rare event the City is unable to perform a City drug and alcohol test (i.e. employee is unconscious, employee is detained by law enforcement agency), the City may use drug and alcohol post-accident test results administered by State or local law enforcement officials in lieu of the City test. The State or local law enforcement officials must have independent authority for the test and the employer must obtain the results in conformance with state and local law.
D. Random Testing
(1) Safety-Sensitive Employees are subject to random selection for drug and alcohol testing with no more than two hours’ notice. The selection of employees shall be made by a scientifically valid method of randomly generating an employee identifier from the appropriate pool of Safety-Sensitive Employees (as described below).
(a) The dates for administering unannounced testing of randomly-selected employees shall be spread reasonably throughout the calendar year; and,
(b) The number of Safety-Sensitive Employees randomly selected for drug/alcohol testing during the calendar year shall be not less than twenty-five (25) percent of the total number of employees in the pool.
(2) Each Safety-Sensitive Employee shall be in a pool from which random selection is made. Each safety-sensitive employee in the pool shall have an equal chance of selection and shall remain in the pool, whether or not the employee has been previously tested. There is no discretion on part of management in the selection and notification of the individuals who are to be tested.
(3) There shall be five (5) pools of Safety-Sensitive Employees from which employees can be randomly selected. Each pool shall be maintained separately and no employee may be placed in more than one pool except as noted below. The pools shall be designated as follows:
(a) Employees designated as safety-sensitive by Federal Transit Authority regulations;
(b) Employees required to operate a commercial motor vehicle (other than Federal Transit Authority designated employees);
(c) Public Safety Employees;
(d) Police officers whose primary duty is the detection and suppression of drug law violations, who shall appear in two pools; and
(e) All other Safety-Sensitive Employees.
(4) An employee who submits to a breath and/or urine sample for a random drug and alcohol test which is determined to be a verified positive test result will be disciplined in accordance with Section 14 of this policy.
(5) An employee who refuses to submit to a random drug and alcohol test will be disciplined in accordance with Section 14 of this policy.
(6) Employees are required to proceed immediately to the collection site upon notification of their random selection, unless they are responding to an emergency call as defined above. In such cases, an employee responding to an emergency call who has been notified of his random selection must proceed to the collection site as soon as possible, but in no cases beyond two hours of notification. Should the two-hour time limit expire while an employee is responding to an emergency call, the employee shall contact a supervisor as soon as possible for further instruction.
E. Return-to-Duty Testing
All Employees who previously tested positive on a drug or alcohol test must test negative for drugs, alcohol (below 0.02 for alcohol), or both and be evaluated and released by the SAP before returning to work. For an initial positive drug test, a Return-to-Duty drug test is required and an alcohol test is allowed. For an initial positive alcohol test, a Return-to-Duty alcohol test is required and a drug test is allowed. Following the initial assessment, the SAP will recommend a course of rehabilitation unique to the individual. The SAP should schedule the return-to-duty test only when the employee is known to be drug- and alcohol-free and there is no risk to public safety. An employee who submits to a breath and/or urine sample for a return-to-duty test which is determined to be a positive test result or a refusal to test will be disciplined in accordance with Section 14 of this policy. Return-to-duty testing is conducted when the employee is off duty.
F. Follow-up Testing
All employees who test positive on a drug and/or alcohol test shall be subject to disciplinary action in accordance with Section 14 of this policy. In the event an employee returns to duty following a positive drug and/or alcohol test, the provisions of this section apply. Such employees will be required to undergo frequent, unannounced drug and alcohol testing following their return-to-duty. The follow-up testing will be performed for a period of one to five years with a minimum of six tests to be performed the first year. The frequency and duration of the follow-up tests (beyond the minimums) will be determined by the SAP reflecting the SAP’s assessment of the employee’s unique situation and recovery progress. Follow-up testing should be frequent enough to deter and/or detect a relapse. Follow-up testing is separate and in addition to random, post-accident, reasonable suspicion, and return-to-duty testing. An employee who submits a breath and/or urine sample for a follow-up drug/alcohol test which is determined to be a positive test result or a refusal to test will be disciplined in accordance with Section 14 of this policy.
14. RESULTS, DISCIPLINE, AND APPEALS
A. Result of Drug/Alcohol Test
(1) All testing results shall be reported to the Medical Review Officer or designee. If the test results are negative, the Medical Review Officer or designee will notify the appropriate parties.
(2) If the City's laboratory reports the results as non-negative, the City’s Medical Review Officer shall determine the validity of the results and provide the employee with the opportunity to discuss the test results. If the Medical Review Officer finds a valid medical explanation (i.e., prescription, medical treatment) for the non-negative test result, the MRO will verify and report this test as negative and no action will be taken. If the MRO’s assessment finds no valid medical explanation for the non-negative result, he will verify the test as positive or refusal to test, and copies of the testing records shall be provided to the Substance Abuse Program Manager and the department director.
(3) Upon notice of a Verified Positive Result from a drug and/or alcohol test, or a refusal to submit to a test, the Department Director or designee shall place the employee on paid administrative leave and notify the Director of Human Resources.
B. Discipline
(1) Refusal to Test – All Employees. Any employee who refuses a drug or alcohol test ordered under this policy shall be subject to termination. Such a refusal shall be deemed both a verified positive test result and a direct act of insubordination.
(2) Public Safety Employees
(a) Unless subject to a defined exception below, the first instance of a Verified Positive Result from a sample submitted by a Public Safety Employee or Childcare Employee for a drug or alcohol test under this policy shall result in termination from City Employment.
(b) Exceptions.
(i) Anabolic Androgenic Agents. If an employee of the Albuquerque Police Department receives a first Verified Positive Result for anabolic androgenic agents, that employee is eligible for the Second Chance program.
(ii) Alcohol Concentration between .02 and .04. If a Public Safety Employee or Childcare Employee (i) receives a Verified Positive Result, as a result of a random test for alcohol, with an alcohol concentration between .02 and .039 and (ii) meets the eligibility criteria set forth below for the Second Chance Program, the applicable department director, in their sole discretion, may refer the employee to the Second Chance Program in lieu of termination. A Public Safety Employee or Childcare Employee who receives a Verified Positive Result with an alcohol concentration between .02 and .039 as the result of a pre-employment test, reasonable suspicion test or a post-accident test is not eligible for the Second Chance Program.
(3) All Other Employees
(a) Second Chance Eligibility. An employee is eligible for the Second Chance Program for a Verified Positive Result from a sample submitted by an employee for drug or alcohol test under this policy if all of the below criteria are met:
(i) This is the first instance of a Verified Positive Result;
(ii) In the case of a non-Safety-Sensitive Employee, the Verified Positive Result was obtained pursuant to a pre-employment (transfer or promotion), random, or reasonable suspicion drug and alcohol test;
(iii) The employee has been employed with the City for at least two calendar years;
(iv) The employee has not received a suspension or suspensions totaling six days or more in the preceding two years; and
(v) The employee has not received a suspension for tardiness or absenteeism in the preceding year.
(b) If an employee is ineligible for or refuses the Second Chance Program, a Verified Positive Result from a sample submitted by an employee for a drug or alcohol test under this policy shall result in termination from City Employment (e.g., an employee who tests positive in a post-accident test is ineligible and subjection to termination).
(4) Second Chance Program. The Second Chance Program is comprised of the following:
(a) The employee will be disciplined with a twenty-eight (28) calendar days leave without pay suspension, always to commence on the first Saturday following issuance of the Notice of Final Action/Disciplinary Action.
(b) Mandatory referral to the Substance Abuse Professional (SAP) for assessment, formulation of a treatment plan and the execution of a return-to-work agreement. An employee’s failure to execute or comply with a return-to-work agreement will result in termination from City employment.
(c) The employee must comply with the return to work agreement by: submitting to a drug/alcohol test immediately prior to returning to work with a Verified Negative Result; cooperating with the SAP recommended treatment program (as determined by the SAP); and agreeing to periodic unannounced follow-up testing. The cost of any treatment or rehabilitation services will be paid directly by the employee or their insurance provider. If the SAP has not released the employee to return-to-duty at the completion of the 28-day suspension, the employee will be allowed to take accrued leave to participate in the SAP prescribed treatment program. If no accrued leave time is available, the employee shall be placed on leave without pay in accordance with the Personnel Rules and Regulations. Any leave taken, either paid or unpaid, shall be considered leave taken under the Family and Medical Leave Act.
C. Grievance and Appeal
(1) The determination by the Medical Review Officer that a drug test is a Verified Positive Result or is a refusal to test is not a medical determination that is subject to appeal under the Personnel Rules and Regulations.
(2) An employee who is subject to termination or other disciplinary action pursuant to this policy may grieve the termination or other disciplinary action pursuant to the provisions of the Merit System Ordinance or applicable collective bargaining agreement.
(3) Any employee who questions the results of a required drug test may request that the split sample be tested. The split sample test must be conducted at a second HHS-certified laboratory with no affiliation with the laboratory that analyzed the primary specimen. The test must be conducted on the split sample that was provided by the employee at the same time as the primary sample. All costs for such testing are paid by the employee, unless the result of the split sample test invalidates the result of the original test. The method of collecting, storing, and testing the split sample will be consistent with the procedures set forth in 49 C.F.R. § 40, as amended. The employee’s request for a split sample test must be made to the Medical Review Officer within 72 hours of notice of the original sample verified test result. Requests after 72 hours will only be accepted at the discretion of the MRO was beyond the control of the employee. The City will ensure that the cost of the split specimen is covered in order for a timely analysis of the sample; however, the City will seek reimbursement for the split sample test from the employee.
(4) An employee who has reason to believe he was not properly designated as a Safety-Sensitive Employee subject to drug and alcohol testing shall appeal their safety-sensitive designation to the Director of the Human Resources Department within thirty (30) calendar days of notification that his position has been designated as safety-sensitive. The Director of the Human Resources Department shall make an inquiry into the claim and forward the determination along with the employee's appeal to the City’s Hearing Officer. Such an appeal shall not be available to police officers, transport officers, security officers, animal services officers, firefighters, and those whose positions which were designated safety-sensitive by Federal regulation. The Hearing Officer shall provide a written decision to the Chief Administrative Officer. This decision shall not be subject to further appeal.
15. INFORMATION DISCLOSURE
A. Drug and alcohol testing records shall be maintained by the Substance Abuse Program Manager and, except as provided below or by law, the results of any drug or alcohol test shall not be disclosed without express consent of the tested employee.
B. Records of a verified positive drug test result, positive alcohol test result, or a refusal to test shall be released to the employee's department director or designee, Substance Abuse Program Manager, and SAP.
C. Records of an employee's drug and alcohol tests shall be released to the adjudicator in a grievance, lawsuit or other proceeding initiated by or on behalf of the tested individual arising from the results of the drug and alcohol test.
D. The employee, upon written request, is entitled to obtain copies of any records pertaining to their use of prohibited drugs or misuse of alcohol including and drug or alcohol testing records. Employees have the right to gain access to any pertinent records such as equipment calibration records and records of laboratory certifications. Employees may not have access to follow-up testing plans. If so requested, the requesting Employee must pay the cost to obtain these records.
16. INCORPORATION AND ENFORCEABILITY
A. Incorporation. This policy incorporates by reference the cited federal law and regulations as in effect at the time this policy is issued. This policy shall be deemed automatically modified by any amendment or modification to such federal laws and regulations. Employees shall be given notice of these changes.
B. Enforceability. The invalidity or unenforceability of any provision of this policy shall not affect any other provision hereof, and the policy shall be construed in all respects as if such invalid of unenforceable provision was omitted. Should any part of this Agreement or any provision contained herein be declared invalid by any tribunal of competent jurisdiction, the validity of the remaining portions shall not be affected. Should this occur, the parties will immediately meet to negotiate a suitable provision to replace the provision held invalid.
History:
This Policy was adopted by the City of Albuquerque Chief Administrative Office, pursuant to City Council Bill No. R-237, on April 17, 1995;
The City enacted a Substance Abuse Policy in 1999; revised February 6, 2006 (retroactive to January 1, 2006); the Second Judicial District Court invalidated the discipline portions of the 2006 policy in New Mexico Transportation Union v. City of Albuquerque, No. CV-2005-0129; Administrative 7-1-2) effective November 3, 2009 (2-8-11, 2-17-11). A revised version of this policy was enacted on February 1, 2012, and disciplinary portions thereof, as applied to certain bargaining unit members represented by the American Federation of State, County, and Municipal Employees, were invalidated by the City of Albuquerque Labor-Management Relations Board on September 24, 2018 (LB 12-02). A revised version of the policy was enacted on June 26, 2015, provisions of which were affected by the subsequent ruling on the 2012 policy. The City enacted a revision of this policy on May 15, 2024 to update the policy and memorialize agreements with applicable labor unions.
PART 1
Appendix A
Appendix A
Procedures for the expanded panel tests for sworn members of the Albuquerque Police Department
Positive Tests
1. A licensed physician shall be responsible for receiving laboratory results generated by the City’s expanded panel drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his or her medical history and any other relevant bio-medical information. The Medical Review Officer (MRO) contracted by the City to review the positive expanded panel drug tests shall be that licensed physician.
2. All procedures for the collection and verification of positive results in the expanded panel tests will follow the same procedures as in DOT 49 C.F.R. § 40, as amended with the addition of the following:
A. When a police officer has a positive test for any one of the drugs listed below, the MRO will contact the employee and verify the test. A verified positive test result will be delivered to Substance Abuse Program Manager, who will notify the Chief of Police.
B. If the MRO verifies that the officer has a valid prescription for a drug listed on the expanded panel, the test will be verified as negative, but the MRO will discuss with the officer the requirement that the officer needs to inform the department that a prescription medication covered under the expanded panel testing program is being used.
C. The MRO will inform the officer that the Substance Abuse Program Manager will be notified of the use of a listed medication and the possible need to inform the Chief of Police or designee.
D. The MRO will inform the Substance Abuse Program Manager that a police officer has been prescribed medication covered under this testing program. The Substance Abuse Program Manager designee will contact the immediate supervisor.
E. If appropriate, the supervisor may ask for an in-service physical in order to determine fitness for duty. Any one of the Employee Health Center’s licensed physicians may conduct this physical. If necessary, the police officer may be assigned alternative duty.
3. Verification of positive results will be based on the levels in 49 C.F.R. § 40 unless the following cut off levels are more stringent than the federal requirements:
Substance Abuse Forensic Evaluation
(Expanded Panel/Non-DHHS)
(Expanded Panel/Non-DHHS)
Drug | Screening Cut-offs | GC/MS Confirmation Cut-offs |
Drug | Screening Cut-offs | GC/MS Confirmation Cut-offs |
Amphetamines | < 500 ng/mL | 250 ng/mL |
Barbiturates | < 200 ng/mL | 200 ng/mL |
Benzodiazepines | < 200 ng/mL | 200 ng/mL |
Cannabinoids (Marijuana) | < 50 ng/mL | 15 ng/mL |
Cocaine | < 150 ng/mL | 100 ng/mL |
Methadone | < 300 ng/mL | qualitative tests* |
Methaqualone | < 300 ng/mL | qualitative tests* |
Codeine/Morphine | < 2000 ng/mL | 2000ng/mL |
Hydrocodone/Hydromorphone | < 300 ng/mL | 100 ng/mL |
Oxycodone/Oxymorphone | < 100 ng/mL | 100 ng/mL |
6-Acetylmorphine | < 10 ng/mL | 10 ng/mL |
Phencyclidine | < 25 ng/mL | 25 ng/mL |
Propoxyphene | < 300 ng/mL | qualitative tests* |
*Presence only detected | ||
4. Verification of positive results for anabolic androgenic agents will include any amount of the following agents, unless specified otherwise:
Anabolic Agent | Screening Cut off, if applicable |
Anabolic Agent | Screening Cut off, if applicable |
1-Androstendiol | |
1-Androstendione | |
Androstendiol | |
Androstendione | |
Bolasterone | |
Boldenone | |
Boldione | |
Calusterone | |
Clenbuterol | |
Clostebol | |
Danazol | |
Dehydrochloromethyltestosterone | |
Dehydroepiandrotestosterone | |
Desoxymethyltestosterone | |
Dihydrotestosterone | |
Drostanediol | |
Drostanolone | |
Epitestosterone | < 200 ng/mL |
Estra-4,9-dien-3,17-dione | |
Ethylestrenol | |
Fluoxymesterone | |
Formebolone | |
Formestane | |
Furazabol | |
4-Hydroxytestosterone | |
6a-Methylandrostendione | |
Mestanolone | |
Mesterolone | |
Methandienone | |
Methasterone | |
Methenolone | |
Methandriol | |
Methylnortestosterone | |
Methyl-1-testosterone | |
Methyltestosterone | |
Mibolerone | |
Nandrolone | 2 ng/mL |
19-Norandrostendiol | |
19-Norandrostendione | |
Norclostebol | |
Norethandrolone | |
Oxabolone | |
Oxandrolone | |
Oxymesterone | |
Oxymetholone | |
Probenecid | |
Prostanozol | |
Quinbolone | |
Stanozolol | |
Stenbolone | |
Testolactone | |
1-Testosterone | |
Testosterone | T/E ratio > 6 |
Trenbolone | |
Negative Tests
1. When a drug test or anabolic androgenic agent test is negative, the Substance Abuse Program Manager will initial the results acknowledging receipt and forward the result to the Chief of Police or designee.
Revised 5/10
PART 1
Appendix B
Appendix B
SYSTEM CONTACTS
Any questions regarding this policy or any other aspect of the substance abuse policy should be directed to the following individual(s). Names and contracted vendors are as of the date of adoption and may change from time to time without a formal amendment of the rule.
City Substance Abuse Program Manager:
Title: Manager of the Substance Abuse Program
Address: 1 Civic Plaza NW, 9th Floor Albuquerque, NM 87103
Telephone Number: (505) 768-3080
Medical Review Officer
Name: Workforce QA
Title: Medical Review Officer
Address: 1430 S. Main St. #475, Salt Lake City, UT 84115
Telephone Number: (801) 486-5400
Anabolic Androgenic Agents Medical Review Officer
Name: Workforce QA
Title: Medical Review Officer
Address: 1430 South Main St. #475, Salt Lake City, UT 84115
Telephone Number: (801) 486-5400
Substance Abuse Professional
Name: The Solutions Group
Title: Substance Abuse Professional
Address: 5801 Osuna NE, Suite A-105 Albuquerque, NM 87109
Telephone Number: (505) 254-3555
DHHS Certified Laboratory: Primary Specimen
Name: Quest Diagnostics Incorporated
Local Address: 8900 San Mateo Blvd. NW, Suite F, Albuquerque, NM 87113
Corporate Address: 10101 Renner Blvd., Lenexa, KS 66219
Telephone Number: (505) 822-5522
DHHS Certified Laboratory: Split Specimen
Name: Medtox
Address: 402 West County Rd, Suite D
Saint Paul, MN 55112
Telephone Number: (800) 832-3244