(A) Introduction and purpose.
(1) It is the policy of the town to provide a safe working environment for all town employees. The use of alcoholic beverages or any other drug is highly detrimental to the safety and productivity of employees in the workplace. Being under the influence of any drug or alcoholic beverage while in the workplace, while on duty, or while operating a vehicle or equipment owned or leased by the town may be detrimental to the health and safety of all employees. All employees of the town shall obey the laws and ordinances of the United States, State of Indiana, Morgan County, and the town.
(2) The purposes of the Drug-Free Workplace Policy of the town includes:
(a) Establishing and maintaining a safe working environment for all town employees and maintaining a Drug-Free Workplace Policy in compliance with the Drug Free Workplace Act of 1988 (41 U.S.C. 702 et seq.) and the State of Indiana Drug-Free Workplace Executive Order 90-5 of 1990;
(b) Ensuring the reputation of the town within the broader community;
(c) Reducing the number of accidental injuries to persons or property; and
(d) Reducing absenteeism and tardiness; improving productivity; and minimizing civil and criminal liability.
(B) Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ALCOHOLIC BEVERAGE. Has the meaning provided in I.C. 9-13-2-2.3.
BURDEN OF PROOF. The obligation of proving allegations which are presented. It may also include the obligation to prove defenses or rebuttable presumptions.
CONTROLLED SUBSTANCE. Has the meaning provided in I.C. 35-48-1.
INTOXICATED. Has the meaning provided in I.C. 9-13-2-86.
OPERATE or OPERATION. Has the meaning provided in I.C. 9-13-2-117.5.
OTHER DRUG. Includes COCAINE as defined in I.C. 35-48-1-7; CONTROLLED SUBSTANCE as defined in I.C. 35-48-1-9; MARIJUANA as defined in I.C. 35-48-1-19; and NARCOTIC DRUG as defined in I.C. 35-48-1-20.
PREPONDERANCE OF THE EVIDENCE. The weight of the evidence or evidence which is more probably true than not true. It is sometimes characterized as satisfying the standard if there is a greater than 50% chance that a proposition is true.
PRESCRIPTION DRUGS. Those drugs prescribed by a medical doctor or other practitioner authorized by the statutes of Indiana to prescribe medications to patients.
PRIMA FACIE EVIDENCE. Evidence which, if not rebutted, is sufficient by itself to prove a particular proposition or fact.
REASONABLE SUSPICION. Specific and articulable facts and inferences which would lead a reasonable person to believe that another person is using or has used alcoholic beverages or other drugs in violation of this section. It is less than the probable cause required for an arrest or search warrant.
REBUTTABLE PRESUMPTION. A conclusion that a matter is true or not true but the conclusion can be contradicted by evidence to the contrary.
TOWN EMPLOYEES. Includes all full-time and part-time employees of the town; all reserve deputies, if any; and employees of any grant-related contractor working within the workplace.
WORKPLACE. All building and structures owned, leased or rented by the town and any other place inside or outside the town limits where town employees are working.
(C) Acts and policy in furtherance of enforcing the drug free policy.
(1) The town recognizes that certain inconveniences and problems may be caused by enforcement of the Drug-Free Workplace Policy. However, the overall benefit to the town and its employees make enforcement both necessary and helpful.
(2) The Town Council shall have the responsibility and sole discretion of enforcing the Drug Free Workplace Policy.
(3) The violation of this policy is not enforceable as an ordinance violation. Criminal and civil penalties which might be applicable to acts which constitute violations of the policy shall be separate and distinct from enforcement of the policy.
(4) Enforcement of this policy may include assisting employees with alcohol or other drug abuse with treatment, counseling, or other remedial actions.
(D) Informing employees.
(1) Each employee shall be informed of the dangers of drug abuse in the workplace; the town's policy of maintaining a drug-free workplace; any available drug counseling, rehabilitation and employee assistance programs, if appropriate; and the penalties that may be imposed upon employees for drug abuse violations.
(2) This awareness program shall consist of providing, at the earliest opportunity, all employees of the town and of its grant-related contractors with a copy of this Drug-Free Workplace Policy and further provisions as implemented from time to time by the town. It further shall be incorporated into the Town Employee Policy Manual, which shall be provided to and acknowledged by every town employee.
(E) Acts and conduct required of town employees.
(1) As a final step in the employment process, all applicants who are conditionally considered for employment and those former employees who may be reinstated for employment after a layoff or leave of absence may be required to submit to a drug screen test.
(2) Town employees and job applicants may be requested to provide bodily substance samples (such as blood, breath, urine, hair, or other bodily substances) to determine the prohibited use of alcohol or other drugs. Results of any drug testing shall remain in the employee's confidential medical file.
(3) An employee will only be requested to submit to an alcohol or drug test when the Town Council President, a person designated to act in his absence, or a department head has reasonable suspicion that the employee has used alcohol or other drugs or is impaired from the use of alcohol or other drugs during employment hours with the town. In the event an employee is requested to submit to an alcohol or drug test the Town Council President, a person designated to act in his absence or a department head shall complete a “Reasonable Suspicion Observation Form” setting forth the observations leading to the determination of reasonable suspicion, including the following:
(a) Observation of alcohol or other drug use;
(b) Observation of alcohol or other drugs or containers traditionally used for alcohol or other drugs;
(c) Observations of behavior of the employee, including balance, speech, reactions, and other characteristics supporting reasonable suspicion of use of alcohol or other drugs or impairment resulting from the use of alcohol or other drugs;
(d) A pattern of abnormal or erratic behavior by the employee; or
(e) Information provided by reliable or credible sources of any of the above.
(4) Post-accident testing may be required when an employee is involved in an accident on town property or while operating town and/or personal equipment or vehicles in pursuit of town business which results in either;
(a) The death or injury of a town employee or a member of the general public; or
(b) Damage to public or private property and/or equipment to the extent that the equipment or vehicle must be towed from the accident scene. The town reserves the right to order post-accident tests as it deems appropriate based on the totality of the circumstances surrounding the accident. Post-accident tests may include screens for both alcohol and other drugs.
(5) Post-shooting testing shall be required when a police officer in a line-of-duty incident shooting causes death or serious bodily injury to an officer of other person. Post-shooting tests shall include screens for both alcohol and other drugs.
(6) Any town employee who is convicted of a drug-related crime which is a felony or misdemeanor under Indiana law or the law of the United States arising out of conduct while on official town business or when serving as a representative of the town shall notify the Clerk-Treasurer and the Town Council President of the conviction in writing within 5 days of the conviction as the town is required to notify any granting agency within 10 days upon receipt of the notice or of actual notice of any such conviction.
(F) Acts and conduct prohibited of town employees.
(1) No town employee shall be under the influence of an alcoholic beverage or any other drug during his or her working hours.
(2) No town employee shall use, sale, possess, transfer or purchase any alcoholic beverage or other drugs during his or her working hours except those prescribed by a practitioner acting in the course of his or her practice.
(3) No town employee shall commit a drug related crime which is a felony or misdemeanor under Indiana law or the law of the United States arising out of conduct while on official town business or when serving as a representative of the town.
(G) Procedures.
(1) A form available in the office of the Clerk-Treasurer entitled "Information Relating to the Possible Violation of the town's Drug Free Workplace Policy" ("the form") shall be filed with the Clerk-Treasurer. The form shall be completed to the extent possible based on the information available at the time.
(2) The Town Council President (or, in his or her absence, the Vice-President) shall be notified by telephone of the filing and a copy of the form shall be provided to him or her in whatever manner he or she requests.
(3) If immediate action is appropriate, the Town Council President (or, in his or her absence, the Vice-President) shall determine the immediate action to be taken after consulting with the Clerk-Treasurer. Immediate action may include retesting at the request of the employee, suspension, a request to provide further information, the calling of an executive session or any other reasonable action deemed appropriate for maintaining a drug free workplace.
(4) If any immediate action is taken by the Town Council President (or, in his or her absence, the Vice-President), copies of the form provided to him or her shall be provided to all members of the Town Council. If no immediate action is taken but further consideration by the Town Council at a scheduled meeting is appropriate, copies of the form shall also be provided to all members of the Town Council.
(5) The town shall have the burden of proving any allegations brought under this section by a "preponderance of the evidence" standard. The results of a drug test which is positive (or a chemical test for consumption of an alcoholic beverage with an alcohol concentration equivalent of at least .04 gram of alcohol per 100 milliliters of the persons blood or 210 liters of the persons breath) shall be "prima facie evidence" of a violation of the policy subject to rebuttable evidence which the town employee has the burden of presenting and proving. Rebuttable evidence may include a valid prescription prescribed before the test for the drug which is the basis for the violation of the policy.
(H) Penalties and consequences.
(1) If an applicant who is conditionally considered for employment or a former employee being reinstated for employment after a layoff or leave or absence refuses to submit to a drug screen test, the refusal will result in denial of employment. If the applicant or former employee tests positive, employment will also be denied.
(2) Enforcement of this policy may include discharge, suspension (with or without pay) for up to 30 days, denial of employment, assisting employees with treatment, counseling, or other remedial actions, a period of probation, or any combination of these penalties and consequences.
(3) Any employee who is convicted of a crime as set out in division (F)(3) shall be terminated from employment with the town or from participation in any grant-related employment for the town.
(4) Any employee who tests positive for alcohol or any drug on any drug screen initiated for cause by the town or its grant-related contractors shall be suspended without pay or removed from any grant-related employment for a period of 30 days. If, at the end of 30 days, the employee can demonstrate successful participation, at his or her own expense, in a drug abuse assistance or rehabilitation program approved by the town, as evidenced by a clean drug screen and an appropriate statement from the service provider, he or she may be reinstated for employment with the town or its grant-related contractor.
(5) Any employee who refuses to take a drug test when requested to do so shall be terminated.
(6) Any employee reinstated under division (H)(4) shall be subject to immediate termination upon any subsequent violation, including failing any drug screen initiated by the town or its grant-related contractor.
(I) Appeal.
(1) An employee may appeal any action taken under division (H)(3) to the full Council by making a request, in writing, within 10 days after the date that the action is taken. The Council may schedule the request for a hearing, in its discretion, or resolve the matter without a hearing.
(2) Any action taken by the full Council under this section may be appealed by the employee by filing, in writing, the reasons the employee feels the action taken by the Council was in error, unfair or that an injustice results from the action taken. The request shall be specific and filed with the Clerk-Treasurer within 10 days of the action taken by the Council.
(3) The employee shall have the burden of proving any allegations of his or her appeal brought under this section by a "preponderance of the evidence" standard. However, the ruling on the request shall remain in the sole discretion of the Town Council.
(Ord. 2007-3, passed 3-13-2007; Am. Ord. 2015-14, passed 7-21-2015)