In order to provide a drug-free workplace, the following policy has been drawn to reiterate and state in a more formal way the work-related effects of drug use and unlawful possession of controlled substances on city premises, or while conducting city business.
(A) Employees are expected and required to report to work on time and in appropriate mental and physical condition for work. It is the city’s intent and obligation to provide a drug-free, healthful, safe and secure work environment.
(B) The unlawful manufacture, distribution, dispensation, possession or use of a controlled substance on city premises or while conducting city business off city premises is absolutely prohibited. Violations of this policy will result in disciplinary action, up to and including termination, and may have legal consequences.
(C) (1) The city recognizes drug dependency as an illness and a major health problem. The city also recognizes drug abuse as a potential health, safety and security problem. Employees needing help in dealing with such problems are encouraged to use the city’s employee assistance program and health insurance plans, as appropriate.
(2) Conscientious efforts to seek such help will not jeopardize any employee’s job.
(D) (1) Employees must, as a condition of employment, abide by the terms of the above policy and report any conviction under a criminal drug statute for violations occurring on or off city premises while conducting city business.
(2) A report of a conviction must be made within five days after the conviction.
(E) Appropriate personnel action against any employee convicted of a criminal drug offense will be taken within 30 days of the date the employer learns of conviction. Such action can range from discharge to a requirement of satisfactory participation in a drug abuse, assistance or rehabilitation program.
(F) In addition to the policy set forth above, the Federal Highway Administration (FHWA) has issued regulations which require that mandatory alcohol and drug testing procedures be applied to all city employees subject to commercial driver license (CDL) testing and licensing procedures. These FHWA requirements are in addition to the city’s rules for use and/or possession of alcohol/drugs, and are not to be interpreted as a replacement thereof.
(1) Definitions.
ALCOHOL. A colorless volatile flammable liquid (C2H5OH) formed by vinous fermentation and contained in wine, beer, whiskey and other fermented and distilled liquors of which it is the intoxicating principle, that is manufactured principally by fermentation of carbohydrate materials and by hydration of ethylene, being obtained usually by fractional distillation in a concentration of about 95% with about 5% water; any of a class of compounds analogous to ethyl alcohol in constitution and regarded as hydroxyl derivatives of hydrocarbons being classed according to the number of hydroxyl derivatives of hydrocarbons being classed according to the number of hydroxyl groups (as monohydric, dihydric, trihydric, polyhydric) or according to structure.
BAT. Breath alcohol test.
CDL. Commercial driver’s license.
DOT. Department of Transportation.
DRUG. Marijuana (THC metabolite), cocaine, amphetamines, opiates (including heroin) and phencyclidine (PCP), as defined in KRS Ch. 218A.
EAP. Employee Assistance Program.
FHWA. Federal Highway Admini- stration.
MRO. Medical review officer.
(2) Rules. In addition to the rules set forth in the city’s Drug-Free Workplace Policy for alcohol and drug abuse, the following uses of alcohol are prohibited by employees who maintain a CDL:
(a) Use while performing safety- sensitive functions;
(b) Use during the four hours prior to performing safety-sensitive functions; and
(c) Use eight hours following an accident or until the employee passes a post-accident test.
(3) Drug/alcohol testing program.
(a) A procedure of integrity. The city will test for the use of illegal drugs and alcohol in accordance with the safeguards as to privacy, procedure, accuracy and confidentiality contained in the federal guidelines of the United States Department of Health and Human Services (HHS) and in certain of the regulations of the United States Department of Transportation (DOT) and the Federal Highway Administration (FHWA). Specimen collection will be conducted at a designated site and according to federal guidelines. Pursuant to the above federal regulations, complete privacy in collection of the urine sample is required unless there is reason to believe that a particular individual may alter or substitute the specimen. The DOT/FHWA regulations narrowly define the circumstances under which observed urine samples may be taken.
1. Being selected for drug or alcohol testing implies no guilt or wrongdoing. It is simply part of a comprehensive and effective overall program, for the benefit of all concerned.
2. Specimen testing will be conducted by a laboratory certified by the National Institute on Drug Abuse (NIDA). All positive drug results must be confirmed by gas chromatography/ mass spectrometry testing. The employee has the further right to retesting of the drug sample as under the DOT/FHWA program.
3. A Medical Review Officer (M.R.O.) qualified in the field of drug and alcohol testing, will be selected by the city. Test results will be maintained by the M.R.O., and confidentially maintained as under the DOT/FHWA regulations. The M.R.O. will notify the employee of a verified positive test and his or her right to retesting of the split sample within 72 hours of notification.
(b) Types of testing.
1. Pre-employment. Upon selection of an applicant for hire; full-time, part-time or seasonal, the individual will be required to be drug tested for illegal use. The city will not hire anyone who tests “positive”. Any applicant who is being considered for a position requiring a CDL, or who will be required to obtain a CDL after six months of employment, will also be tested for alcohol use.
2. Random. The city is required to randomly test for the illegal use of drugs and alcohol. Selection for random testing will be done by a third-party computer program (the M.R.O.). Fifty percent of the safety-sensitive test pool will be tested yearly for the illegal use of marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP). Twenty-five percent of the safety-sensitive test pool will be tested yearly for the use of alcohol.
3. Post accident. City employees involved in an on-the-job accident will be tested for the use of illegal drugs and alcohol within two hours after the accident, but no more than eight hours after the accident. For purposes of this policy, an ACCIDENT is defined as an occurrence associated with the operator of a city vehicle that results in:
a. A fatality;
b. An individual suffers bodily injury requiring immediate attention at a medical facility;
c. The vehicle involved in the accident suffers disabling damage requiring that it be towed away;
d. The arrest of the operator; or
e. A citation is issued by law enforcement.
4. Reasonable suspicion. All employees are subject to a drug/alcohol test when there is a reason to suspect drug use or alcohol misuse immediately prior to, during or immediately after performing job duties. A referral for testing will be made on the basis of specific, contemporaneous, articulable observation concerning the appearance, speech, behavior or body odors of the covered employee which characterize prohibited drug use or alcohol misuse, such referrals will be made by supervisory personnel who are trained to detect the signs and symptoms of drug and alcohol use.
5. Conditions. The following conditions are signs of possible drug or alcohol use, but are not all inclusive:
a. Abnormally dilated or constricted pupils;
b. Glazed stare - redness of eyes (sclera);
c. Flushed face;
d. Change of speech (i.e., faster or slower);
e. Increased absences or tardiness;
f. Sudden weight loss;
g. Change in personality (i.e., paranoia);
h. Forgetfulness or perform- ance/concentration problems;
i. Borrowing money from co-workers or seeking an advance of pay or other unusual displays of asking for money;
j. Constant fatigue or hyperactivity;
k. Smell of alcohol;
l. Slurred speech;
m. Difficulty walking;
n. Dulled mental processes; and
o. Slowed reaction rate.
6. When a supervisor has reason to believe that one or more of the above conditions are present, they should confront the employee involved and keep the employee under direct observation until the situation is resolved.
7. If an employee is identified as needing assistance in resolving problems associated with drug or alcohol misuses, the employee shall be evaluated by a substance abuse professional (SAP), as defined by the FHWA regulations. The substance abuse professional will monitor the employee’s compliance with any rehabilitation programs prescribed. The employee will be subject to unannounced follow-up tests directed by the substance abuse professional, and will consist of at least six tests in the first 12 months following the employee’s return to duty.
(c) Alcohol testing. Testing for alcohol concentrations will be conducted using a National Highway Safety Administration (NHTSA) approved evidential breath testing (EBT) device operated by a trained technician (BAT). An employee who tests at an alcohol concentration of 0.02 or above on an initial screening test must be retested at least 15, nor more than 20, minutes after the completion of the screening test. This second test is called a confirmatory test. A confirmatory test showing an alcohol concentration of 0.02 to 0.039 will cause the employee to be removed from his or her safety-sensitive position for 24 hours; a test result of 0.04 or greater will be a violation of the rule. The individual must be evaluated by a substance abuse professional and follow and complete all recommendations to return to duty.
(d) Compliance for request for testing. Any employee who refuses a request for testing; who provided false information in connection with a test; who attempts to falsify test results through tampering, contamination, alteration or substitution; who is unable to provide an adequate urine specimen and upon medical evaluation such inability is determined not to be genuine; who attempts and fails to provide an adequate breath sample without a valid medical reason; who does not arrive at the collection site in a timely manner; or who, without a valid reason, does not remain readily available before a test has been conducted shall be considered as refusing to be tested and removed from duty in compliance with DOT regulations, and in accordance with disciplinary procedures set forth by the city.
(e) Safety-sensitive functions/job classifications to be tested in accordance with FHWA/DOT regulations. In order to comply with FHWA/DOT regulations, the job classifications listed below shall be considered safety-sensitive functions which are required to be randomly tested for drug and alcohol use in accordance with the requirements of the standard. The job classifications shall include those that require a CDL and any other employees who maintain a CDL. Job classifications that will be tested:
1. Driver;
2. Light equipment operator;
3. Heavy equipment operator; and
4. Any other employees who maintain a CDL.
(f) Discipline. Under FTA rules, discipline for drug and alcohol program violations is determined at the local level. The city discipline policy for alcohol misuse and/or drug abuse conduct follows below; however, individual circumstance pertaining to a positive drug test, and alcohol test with a concentration above 0.02, or a refusal to test may merit additional consideration.
1. Any employee whose test from a random test, reasonable suspicion or post- accident basis shows an alcohol concentration of 0.04 or higher, or is positive for any drug as defined in division (F)(1) above or whose actions constitute a refusal will:
a. Be removed from their safety-sensitive position;
b. Be referred to and assessed by an SAP;
c. Be subject to discipline subject to the filing of charges with the Non-Uniform Civil Service Board;
d. If deemed necessary by the SAP, be referred to and complete a treatment and rehabilitation program;
e. If allowed to return to duty, be seen by the SAP to determine compliance with any recommended or prescribed substance abuse program and then tested for drugs and/or alcohol before returning to duty. Tests must be negative of drugs and show an alcohol concentration of less than 0.02; and
f. Agree to return to work agreement developed in conjunction with the SAP and the city outlining terms of return to work, including ongoing treatment, aftercare conditions and additional unannounced follow-up tests for a minimum of one year, with a minimum of six tests the first year.
2. All refusals will be treated as a violation of the rules, recorded as a positive test, and the employee shall become subject to discipline up to and including discharge.
3. Additional measures for discipline are listed in the city’s drug-free workplace policy and personnel policies.
(g) Education and training. It is the policy of the city that training and education programs will be made available to all employees. Additionally, supervisors and managers will receive instruction on how to identify the signs of drug and/or alcohol use or impairment and what to do in such reasonable suspicion cases. This training will be conducted by qualified professionals selected by the city. Additional and continuing drug and alcohol education and training will be provided as necessary.
(h) Employee assistance program. The city has made available a qualified third-party for counseling and related assistance to any employee with a drug or alcohol problem, pursuant to the Employee Assistance Program (EAP). Use of the EAP is strongly encouraged. Employees should contact the counselor in confidence about their problem. Use of the EAP or disclosures to the counselor will not result in disciplinary action to the person seeking help. If appropriate, and with the permission of the employee, the counselor will arrange for the employee to take accrued vacation leave, sick leave or a personal leave of absence for counseling/rehabilitation. It is the responsibility of each employee to seek assistance from the EAP before the alcohol or drug problem leads to disciplinary action. If a rule violation has already been found, or is independently found, using the EAP on a voluntary basis will not necessarily lessen disciplinary action and may, in fact, have no bearing on the determination of appropriate disciplinary action.
(1984 Code, § 34.30) (Ord. O-29-89, passed 5-22-1989; Ord. O-75-95, passed 12-28-1995)
Editor’s note:
For more information, the Employee Assistance Program can be reached at (859) 344-2999.