(a) Objectives; Application. The Village of Grafton is required by Federal regulations to implement an alcohol and controlled substance testing program for drivers of commercial motor vehicles. The following policy has been adopted by the Village in compliance with said regulations in order to reduce highway accidents resulting from the use of controlled substances and to protect the safety and well being of the public, contractors and their employees. This policy will apply to all employee drivers and independent contractors who wish to enter into contracts to drive for the Village, and to their employees, as well as to all incumbent contractor/drivers and their employees, effective January 1, 1996. This policy describes and summarizes the regulations found in the Federal Motor Carrier Safety Regulations (FMCSR), Parts 382 and 40. These Regulations should be referenced with respect to any questions that may arise from the policy that follows. With respect to division (g) of this section, the Village of Grafton has supplemented the Regulations regarding suspension and termination.
(b) General Policy Statement. An alcohol-free and drug-free work force is critical for the Village and is in the best interest of public safety. The driver who uses alcohol and/or drugs is a hazard to himself or herself, to other workers and to the general public. It is the Village's policy that alcohol misuse on the job and drug users be quickly identified and removed from the work environment.
(c) Applicability. This policy and the regulations that require it shall apply to all persons who operate commercial motor vehicles in commerce and are subject to the commercial driver's license requirements found in Part 383 of the Regulations.
(d) Definitions. As used in this section:
(1) “Alcohol” means the intoxicating agent in beverage alcohol, ethyl alcohol or other alcohols, including methyl and isopropyl alcohol.
(2) “Alcohol concentration” means the alcohol in a volume of breath in tens of grams of alcohol in 210 liters of breath as indicated by an evidential breath test as described in this policy.
(3) “Alcohol use” means the consumption of any beverage, mixture or preparation, including medication, which contains alcohol.
(4) “Breath Alcohol Technician” or “BAT” means an individual who instructs and assists persons in the alcohol testing process and operates an EBT (Evidential Breath Testing) device.
(5) “Collection site person” means a person who instructs and assists individuals at the collection site and who receives and renders an initial examination of urine specimens.
(6) “Company.” See “Employer.”
(7)` “Confirmation test” means:
A. For alcohol, a second test, following a screening test with a result of 0.02 or greater, that provides quantitative results of alcohol concentration.
B. For controlled substances, a second analytical procedure to verify the presence of a specific drug. NOTE: the GC/MS (gas chromatography/mass spectrometry) method is the only authorized method for the drugs covered in this policy and defined in division (d)(8) of this section.
(8) “Controlled substances” means marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP).
(9) “Drivers subject to testing” means all employee drivers and contract drivers under contract for 90 days or more in any 365-day period and employees of said contractor.
(10) “Drug” means a controlled substance as defined above, as well as any other illegal substance or drug.
(11) “Employer” means any person (including the United States, a state, the District of Columbia or a political subdivision of a state) who or which owns or leases a commercial motor vehicle or assigns persons to operate such a vehicle, including agents, officers and representatives (including authorized third-party service providers) of the Village.
(12) “Medical review officer” means a licensed doctor of medicine or osteopathy with knowledge of drug abuse disorders who is employed or used by the Village to conduct drug testing in accordance with Federal law. The medical review officer shall be responsible for receiving laboratory results generated by the Village's drug-testing program and shall have been medically trained to interpret and evaluate any individual's positive test result, together with his or her medical history and any other relevant biomedical information.
(13) “Performing a safety-sensitive function” means a driver is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform or immediately available to perform any safety-sensitive function as defined in division (d)(16) of this section.
(14) “Reasonable suspicion” means the belief that a driver has violated the alcohol or controlled substances prohibitions, based on specific, contemporaneous and articulable observations concerning the appearance, behavior, speech or body odors of the driver.
(15) “Refusal to submit (to an alcohol or controlled substance test)” means that a driver:
A. Fails to provide adequate breath for testing without a valid medical explanation therefor after he or she has received notice of the requirement for breath testing;
B. Fails to provide adequate urine for controlled substances testing without a valid medical explanation therefor after he or she has received notice of the requirement for urine testing; or
C. Engages in conduct that clearly obstructs the testing process.
(16) “Safety-sensitive function” means any of the on-duty functions described in Section 395.2 of the Regulations and as described below:
A. All time, at any facility owned or otherwise, while waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier.
B. All time inspecting equipment as required by the Regulations.
C. All driving time as defined in the Regulations.
D. All time, other than driving, in any commercial motor vehicle, except time spent resting in a sleeper berth.
E. All time loading or unloading a vehicle or supervising or assisting in the process.
F. All time spent performing the requirements specified in Sections 392.40 and 392.41 of the Regulations relating to accidents.
G. All time repairing, obtaining assistance for, or remaining in attendance upon, with a disabled vehicle.
H. All time spent providing a breath or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident or follow- up testing required by this policy, when directed by the motor carrier.
I. Performing any other work in the capacity of, or in the employ or service of, a common, contract or private carrier.
J. Performing any compensated work for any non-motor carrier entity.
(17) “Substance Abuse Professional” or “SAP” means a licensed physician (medical doctor or doctor of osteopathy), or a licensed or certified psychologist, social worker, employee assistance professional or additional counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission) with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substance-related disorders.
(e) Alcohol and Controlled Substance Testing.
(1) Pre-employment requirements.
A. All drivers who the Village intends to employ or enter into a contract with will be tested for the use of alcohol and controlled substances prior to the first time a driver performs a safety- sensitive function for the Village.
B. Such drivers will be notified that a breath and urine sample will be tested for the presence of alcohol and controlled substances.
C. The Village will not allow a driver to perform a safety-sensitive function unless the results of the breath alcohol test indicates a breath alcohol level of less than 0.02 and unless the Village has received a controlled substance test result from the medical review officer indicating a verified negative test.
D. If the results of a driver's alcohol test indicate a breath alcohol concentration of 0.02 or greater, but less than 0.04, the driver will not be permitted to perform safety-sensitive functions until the start of the driver's next regularly-scheduled duty period, but not less than 24 hours following the administration of the test.
E. Any individual who refuses to submit to a controlled substance test or who tests positive for a controlled substance shall be deemed medically unqualified to operate a commercial vehicle and shall not be offered employment or a contract to drive for the Village.
(2) Reasonable suspicion testing.
A. The Village will require drivers to be tested for the use of alcohol and controlled substances upon reasonable suspicion. (Reasonable suspicion testing carries different procedures for alcohol and controlled substances. Please refer to Part 382 and Part 40 of the Regulations for more detail regarding this portion of the policy and the Regulations.)
B. 1. Conduct by drivers constituting reasonable suspicion must be witnessed by one supervisor. This observation for alcohol must be based on specific, contemporaneous and articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observation for controlled substances may include indications of the chronic and withdrawal effects of controlled substances.
2. The Village must ensure that persons designated to determine whether reasonable suspicion exists, so as to require a driver to be tested for alcohol and/or controlled substances, receive a minimum of sixty minutes of training on alcohol misuse and a minimum of sixty minutes of training on controlled substance misuse.
C. Reasonable suspicion testing shall be authorized only if the observation as described in division (e)(2)B. of this section above is made during, just before or just after the driver has been, will be or was performing a safety-sensitive function.
D. Once a driver has been notified that a reasonable suspicion test will be conducted, such test shall take place within two hours of issuance of the notice. If the test is not accomplished by the Village within two hours, a written record shall be made stating the reasons the alcohol test was not promptly administered. If the test has not been accomplished within eight hours following notification, the Village shall stop its attempt to administer the test and make and retain in its files a record of the reasons the alcohol test was not properly administered.
E. A written record shall be made documenting the driver's conduct with respect to an alcohol and/or controlled substance reasonable suspicion and must be signed by the supervisor or company official who observed the behavior.
F. The possession of alcohol does not constitute a need for a reasonable suspicion test as set forth in divisions (e)(2)A. to E. of this section. Reasonable suspicion must be based on observations concerning the driver's appearance, behavior, speech or body odors.
(3) Random testing.
A. The Village shall utilize a random selection process to select and request drivers to be tested for the use of alcohol and controlled substances.
B. The random tests conducted annually for controlled substances shall equal or exceed fifty percent of the driver positions available, and random alcohol tests conducted annually shall equal or exceed twenty-five percent of the driver positions available.
C. A driver shall only be tested randomly for alcohol when he or she is performing safety-sensitive functions or immediately prior to or after performing a safety-sensitive function.
D. Drivers must submit to these tests when selected by a random selection process utilized by the Village. These tests will not be announced in advance and will be spread reasonably throughout the year.
E. After a driver is randomly selected for a test, the driver must immediately proceed to the testing site upon notification of being selected.
F. Once a driver is notified of the requirement to take a random alcohol and/or controlled substance test, provided that the driver was performing a safety sensitive function at the time of the notification, the Village will ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible.
G. If a driver who has been randomly selected for a test is on vacation or an extended medical absence, the Village may either select another driver (alternate) for testing or keep the original selection confidential until the driver returns.
(4) Post-accident testing. Nothing in this policy (or in the Regulations) should be construed as to require the delay of necessary medical attention for injured persons following an accident, or to prohibit a driver from obtaining assistance as needed to respond to the accident or to obtain necessary emergency medical care.
A. Drivers shall provide a breath and urine sample to be tested for the use of alcohol and controlled substances as soon as possible following an accident involving a fatality or a recordable accident in which the driver receives a citation for a moving traffic violation.
B. A post-accident test must take place within two hours of the accident or as soon as practical. If the alcohol test is not accomplished within two hours by the Village, a written record shall be made stating the reasons the alcohol test was not promptly administered. If the test has not been accomplished within eight hours following the accident, the Village shall stop its attempt to administer the alcohol test and make and retain in its files a record of the reasons the alcohol test was not properly administered.
C. If a driver has not submitted to a controlled substance test within 32 hours of the accident, the Village shall stop its attempt to administer the controlled substance test and make and retain in its files a record of the reasons the test was not properly administered.
D. A driver who is seriously injured and cannot provide a specimen at the time of the accident shall provide the necessary authorization for obtaining medical reports and other documents which would indicate whether there were any alcohol or controlled substances in his or her system at the time of the accident.
E. The Village may use, by permission from the Federal Highway Administration, post-accident tests conducted by Federal, State and local officials, and such tests shall be deemed to meet the requirements of this section under the following conditions:
1. The official must have independent authority to conduct the test;
2. The test must conform to Federal, State and local requirements;
3. The alcohol test must require blood or breath samples; and
4. The controlled substances test must require a urine sample.
F. A driver who is subject to post-accident testing must remain available or the Village will consider the driver to have refused to submit to testing.
(5) Return-to-duty and follow-up testing.
A. The Village shall ensure that before a driver returns to duty requiring the performance of safety-sensitive functions, after engaging in prohibited conduct regarding alcohol misuse and/or controlled substance use, the driver shall be tested for alcohol and/or controlled substances. In order to return to duty, a driver must test negative for substance abuse and have a breath alcohol concentration of less than 0.02.
B. In the event that a driver is required to complete a return-to- duty test, the driver must also be evaluated by a substance abuse professional (SAP) and participate in the assistance program prescribed by the SAP.
C. Follow-up testing should be performed by the Village on an unannounced basis as instructed by the SAP. A driver shall be subject to a minimum of six follow-up controlled substance and/or alcohol tests in the first twelve months. Alcohol follow- up tests shall only be administered when the driver is performing a safety-sensitive function, either immediately prior to or after the safety-sensitive function is performed.
(f) Alcohol and Controlled Substance Prohibitions.
(1) No driver shall perform a safety-sensitive function while having a breath alcohol concentration of 0.02 or greater.
(2) No driver shall perform safety-sensitive functions within four hours after using alcohol. No employer having actual knowledge that a driver has used alcohol within four hours shall permit a driver to perform or continue to perform safety-sensitive functions.
(3) No driver shall possess any quantity of alcohol while on duty unless the alcohol is manifested and transported as a part of the load. This includes any medicines, both prescription and over-the-counter, that contain alcohol, unless the packaging seal is unbroken.
(4) No driver shall use alcohol while performing a safety-sensitive function.
(5) When involved in an accident that requires a post-accident alcohol test, the driver shall not use alcohol within eight hours of the accident or prior to submitting to the post-accident test, whichever comes first.
(6) No driver shall refuse to submit to an alcohol or controlled substance test as required by this policy. Any refusal shall be treated in the same manner as a positive alcohol or substance abuse screen.
(7) No driver shall perform a safety-sensitive function when the driver uses controlled substances, except when prescribed by a physician who has determined that the substance will not adversely affect the driver's ability to safely drive a commercial motor vehicle.
(8) No driver shall perform a safety-sensitive function if the driver has tested positive for controlled substances.
(g) Consequences of Alcohol Misuse and Drug Use.
(1) Drivers who are known to have engaged in behavior prohibited by this policy shall be suspended or terminated. The Village shall determine which option is in the best interests of the Village.
(2) Drivers who are suspended shall be informed by the Village of resources available to them to resolve their problem of alcohol misuse or drug use. Any period of inpatient drug or alcohol treatment prescribed for or chosen by the driver which results in missed work days shall be covered by the employee's sick days and/or vacation. Under no circumstances shall the Village be held financially responsible for any of the driver/employee's treatment costs or missed work days.
(3) Following return to work, drivers shall be evaluated by a substance abuse professional (SAP) on what course of action is needed to assist the driver in resolving his or her problem with alcohol misuse and drug use. The SAP will monitor the driver's rehabilitation to determine if the driver has followed the prescribed program. This portion of the policy is provided as information only. It does not indicate that the Village is required to rehabilitate a driver who has tested positive with respect to alcohol or controlled substances. The Village will consider drivers who test positive to be medically unqualified and such drivers shall be disqualified from driving for the Village.
(h) Supervisor Training.
(1) The Village will designate and provide training to supervisors in the recognition of observable behavior that is indicative of misuse of alcohol and controlled substance use. Sixty minutes of training shall be provided for both alcohol misuse and controlled substance use, for a total of 120 minutes.
(2) The prescribed training shall include a review of physical behavior, speech and performance indicators consistent with alcohol misuse and controlled substance use.
(i) Procedures.
(1) Drug-testing requirements. The Village is required by Federal regulations to test for alcohol, marijuana, cocaine, opiates, amphetamines and phencyclidine. The Village may, however, upon reasonable cause, require drivers to be tested for other illegal drugs. In such event, a second urine sample will be provided by the driver.
(2) Preparation for testing.
A. Controlled Substances.
1. A urine sample will be used for ail controlled substance tests provided for herein.
2. “Split sample” procedures will be used as outlined in Part 40 of the FMCSR for all controlled substance tests conducted on or after August 15, 1994. Under this provision, a driver whose urine sample has tested positive for a controlled substance has the option (within seventy-two hours after being notified by the medical review officer) of having the remaining portion of the split sample tested at another laboratory at the driver's own cost. If the second test produces negative results, the test is considered negative and no further sanctions are imposed.
3. A standard urine custody and control form will be used.
4. A tamper-proof system for sealing specimen bottles will be used.
5. A special shipping container designed to prevent undetected tampering will be used.
6. Procedures, instructions and training for the collection site will be provided by the Village or the third-party vendor selected by the Village to provide this service.
B. Alcohol.
1. A breath sample will be used for all alcohol tests required and provided for herein.
2. All Breath Alcohol Technicians (BATs) will be trained in proficient operation of the EBT and in the alcohol testing procedures contained in Part 40 of the Regulations, either by the Village or the third-party vendor providing this service for the Village.
3. The Village (or its third-party vendor) will conduct alcohol testing in a location that allows visual and actual privacy to the individual being tested, sufficient to prevent unauthorized persons from seeing or hearing test results.
4. No unauthorized persons will be permitted access to the testing location when the EBT remains unsecured, or in order to prevent such persons from seeing or hearing a test result at any time when testing is being conducted.
5. The Village will use the breath alcohol testing form as prescribed in Part 40 of the Regulations. A log book shall be used for an EBT used for screening tests that does not meet the requirements of Part 40.53(b) 1-3.
C. Specimen collection.
1. A collection site will be designated by the Village.
2. Security measures will be taken to prevent unauthorized access which could compromise the integrity of the collection process or the specimen.
3. The chain of custody of the urine specimen will be carefully documented.
4. Special precautions will be taken to ensure that access to urine specimens is restricted to authorized personnel.
5. Procedures for collecting urine specimens will allow individual privacy, except under circumstances indicating that a particular individual may alter or substitute the specimen as defined by Federal regulations.
6. Rules designed to preserve the integrity and identity of urine specimens will be carefully followed.
7. Controlled collections and transportation of collections to the laboratory will be handled by the Village or its third- party vendor pursuant to all applicable sections of the Federal regulations.
(j) Reporting and Review of Results.
(1) A medical review officer will review the controlled substance testing results prior to transmission of the results to the Village.
(2) Prior to final verification of positive test results, the medical review officer will give the driver an opportunity to discuss the test results.
(3) The Village's contracts with laboratories will require the laboratory to maintain all drivers' test records in confidence as required by Department of Transportation agency regulations.
(4) Any driver who is the subject of a drug test shall, upon written request, have access to any records relating to his or her drug test and any records relating to testing results as described below.
(5) The Village will only use laboratories certified under the Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing and Program.
(k) Notification of Test Results and Record Keeping.
(1) The Village will notify a driver of the results of a pre-employment alcohol and/or controlled substance test, provided that the driver requests said test results within sixty days of being notified of the Village's decision as to whether or not it will enter into employment or lease contract with him or her.
(2) The Village will notify incumbent drivers of the results of random, reasonable suspicion and post-accident alcohol and/or controlled substance tests, provided that the results were positive, and will also advise the driver of what controlled substance was detected or what alcohol level was discovered.
(3) All records relating to the administration and results of the alcohol and drug testing program will be maintained for a minimum period of five years, except that individual negative, canceled or alcohol tests of less than 0.02 results need only be maintained for a minimum of twelve months.
(4) All records related to the collection process and required training shall be retained for a minimum period of two years.
(5) A medical review officer will serve as the sole custodian of individual test results and will retain the reports of individual test results for a minimum of five years.
(6) The Village will retain in its files information which will indicate only the following:
A. That the driver submitted to a controlled substance test;
B. The date of the test;
C. The location of the test;
D. The identity of the person conducting the test; and
E. Whether the test finding was positive or negative.
(l) Release of Testing Information by Previous Employers.
(1) The Village may obtain from any previous employer of the driver information related to the driver's participation in an alcohol and drug testing program. The Village will obtain written permission from the driver to acquire this information.
(2) The Village will obtain and review the information listed below from any previous employer for which the driver performed safety- sensitive functions in the previous two years. The Village will request and review this information within fourteen days after the driver first performs a safety-sensitive function. The information will include:
A. Any breath alcohol tests that indicated concentrations of 0.04 or greater;
B. Positive controlled substance tests; and
C. Any refusals to submit to a required alcohol or controlled substance test.
(3) The Village will provide the previous employers of the past two years with the driver's written consent to release the information upon request. The Village may obtain the information via personal interview, telephone interview, letter or other method, as long as measures are taken to ensure confidentiality. The Village will maintain a written, confidential record with respect to each of the past employers contacted.
(4) The Village will not use a driver to perform safety-sensitive functions if the Village obtains information indicating the driver has tested positive for controlled substances, tested at or above 0.04 breath alcohol concentration, or refused to test, unless the employer has evidence that the driver has been evaluated by a SAP, completed any required counseling, passed a return-to-duty test and been subject to follow-up testing.
Figure 1
RELEASE AND CONSENT STATEMENT
I hereby certify that I have read the above alcohol and controlled substance testing policy and fully understand the terms thereof. I also allow, by way of my signature on this document, for the Village of Grafton to investigate my background and history with respect to alcohol and controlled substance testing as directed by Part 382 of the Federal Motor Carrier Safety Regulations.
I further agree to comply with the procedures and requirements set forth in the policy and acknowledge that should I fail or refuse to comply with said procedures, equipment, policies and regulations, I shall be considered medically unqualified to drive, and my contractual lease agreement or employment with the Village may be terminated.
Signature
Date
Figure 2
RECORD OF SUBSTANCE ABUSE EDUCATION AND TRAINING
This document certifies that on the date identified below, I
Employee's Name (Please Print)
did receive alcohol misuse and controlled substance abuse education, training and other information detailing the Village of Grafton's alcohol and drug-testing program.
Date of Training Location of Training
Signature of Employee Employee's Social Security Number
Signature of Trainer
This education and training material fulfills the requirements for training and education as set forth by Department of Transportation (USDOT) Mandatory Alcohol and Drug Testing Regulations found in FMCSR, Parts 382 and 40.
(Ord. 96-019. Passed 12-3-96.)