180.04 GROUNDS FOR SUBSTANCE ABUSE TESTING.
All covered employees shall be subject to substance abuse testing of either urine, breath, and/or blood under the following circumstances:
(a) Pre-employment or Pre-promotion Testing. All applicants for appointment or promotion to a position whose incumbent would be a covered employee shall be notified by the Department of Civil Service or applicable authority upon certification that a test for drug, alcohol and controlled substance use must precede their appointment or promotion into covered employment. An applicant who is tentatively selected for appointment or promotion by the appointing authority and who then refuses, declines, or fails to submit to a drug, alcohol and controlled substance test upon notice to do so shall be deemed to be medically unqualified for covered employment and shall not be appointed or promoted into covered employment. Any applicant who fails to qualify for appointment into a covered position shall not be eligible for appointment during the life of the eligibility list associated with the covered position for which the test was administered or two years, whichever is longer. An applicant, who is selected for appointment or promotion and is tested for drug, alcohol and controlled substance use prior to appointment or promotion to covered employment, must receive a satisfactory test result before receiving appointment to the covered position.
(b) Reasonable suspicion testing. "Reasonable suspicion" means an apparent state of existing facts, circumstances or information which results from an inquiry by the supervisor or from a credible source which would induce a reasonably intelligent and prudent person to reasonably believe the covered employee is under the influence of or using controlled substances, drugs, or alcohol. Reasonable suspicion determinations leading to a substance abuse test shall be made by a covered employee's supervisor who shall be reasonably trained in the detection of the signs and symptoms of substance abuse or who is reasonably familiar with the same, and who reasonably concludes, based on specific, contemporaneous, articulable observations concerning an employee's appearance, behavior, speech or body odors, that a covered employee's work, mental faculties, or physical capabilities are presently being impaired or affected by substance abuse. If more than one supervisor is assigned to a shift, a supervisor's determination of the need for reasonable suspicion testing shall be corroborated by another supervisor. Examples of reasonable suspicion include, but are not limited to, the following:
(1) Adequate documentation, shown by the behavioral, speech and performance indicators of alcohol or drug misuse, of unsatisfactory work performance for unexplained reasons;
(2) Physical signs and symptoms consistent with substance use;
(3) Evidence of the manufacture, distribution, dispensing, possession or use of controlled substances, drugs, or other prohibited substances;
(4) Possession of alcohol when there is evidence of alcohol use as indicated by the employee's appearance, speech, or abnormal conduct except for possession of unopened containers of alcohol or possession of alcohol by trained medical personnel for purposes of medical treatment;
(5) Occurrence of a serious or potentially serious accident that may have been caused by human error; and
(6) Fights (to mean physical contact), assault, menacing, stalking, or threatening behavior, and flagrant disregard or violation of established safety, security or other operating procedures where such conduct is commonly associated with drug or alcohol use or abuse; and
(7) Bizarre or unusual on-the-job behavior where such conduct is commonly associated with drug or alcohol use or abuse.
(c) Possession of a controlled substance shall be reasonable suspicion for requiring a controlled substance test. Possession of prescription drugs shall not be grounds for a reasonable suspicion test if the covered employee can:
(1) Satisfactorily explain to his or her supervisor the reason for possession of the drug,
(2) Identify the physician who prescribed the drug for the covered employee (this information can be verified to the supervisor by the pharmacy filling the prescription or the prescribing physician) and
(3) The use of drugs has not affected or impaired the employee's work performance.
The fact that a satisfactory explanation is provided shall not negate reasonable suspicion if the covered employee's mental or physical abilities appear to be affected or impaired by the prescription drug.
A written record of observations leading to a reasonable suspicion substance abuse test shall be made by the supervisor requiring such test within twenty-four hours of the observed behavior or before the results of the controlled substance abuse test are released, whichever is earlier.
Once a covered employee has been notified that a reasonable suspicion test for drugs or other controlled substance will be conducted, the test shall take place within two hours of this notice. If the test is not conducted within two hours, a written record shall be made stating the reasons the test was not promptly administered. If the test has not been conducted within thirty-two hours following the notification, no test shall be administered and a record shall be made of why the test was not administered.
Once a covered employee has been notified that a reasonable suspicion test for alcohol will be conducted, the test shall take place within two hours of this notice. If the test is not conducted within two hours, a written record shall be made stating the reasons the test was not promptly administered. If the test has not been conducted within eight hours following the notification, no test shall be administered and a record shall be made of why the test was not administered within eight hours.
(d) Post-accident testing. A covered employee and any employee operating a covered vehicle despite not having a commercial driver's license shall be subject to urine, blood or breath testing when a covered vehicle is involved in a collision which results in a fatality or injuries requiring medical attention at a hospital or emergency medical center by a licensed provider, or a criminal or traffic citation is issued to the driver of the covered vehicle or any other time when control over a covered vehicle is unexplainably lost for reasons other than mechanical, adverse weather conditions, or other driver error.
The filing of criminal or traffic charges against the City employee as a result of a triggering event shall not be necessary to require a covered employee or a non-covered employee operating a covered vehicle to submit to a post-accident test. Reasonable suspicion that the operator of a covered vehicle involved in a triggering event has used drugs, alcohol or controlled substances is immaterial to the requirement herein of a post-accident test.
Post-accident testing shall not be permitted to delay the administration of necessary medical attention to injured covered employees. Once a covered employee has been notified that a post-accident test for drugs or other controlled substance will be conducted, it shall take place within two hours of this notice. If the test is not conducted within two hours, a written record shall be made stating the reasons the test was not promptly administered. If the test has not been conducted within thirty-two hours following the notification, no test shall be administered and a record shall be made of why the test was not administered.
Once a covered employee has been notified that a post-accident test for alcohol will be conducted, the test shall take place within two hours of this notice. If the test is not conducted within two hours, a written record shall be made stating the reasons the test was not promptly administered. If the test has not been conducted within eight hours following the notification, no test shall be administered and a record shall be made of why the test was not administered within eight hours.
If an employee subject to testing under this section is, because of injuries sustained, unable to provide a urine sample or to take a breath alcohol test, as soon as the employee is medically able and mentally competent, the employee shall execute a medical consent form allowing the employer access to all medical records and/or tests relating to the presence of alcohol, drugs or controlled substances. Failure to grant such consent when the employee is capable shall cause the employee to be deemed medically unqualified for duty such that a substance abuse test is required before the covered employee may return to work.
The City may, but shall not be required to, substitute, accept, and rely upon the result of any blood, urine, or breath test conducted pursuant to Ohio's implied consent statute as an accurate and reliable substance abuse test for purposes of this chapter provided the test is an accurate and reliable means for testing for alcohol, drug and controlled substance abuse.
A covered employee or a non-covered employee who operates a covered vehicle involved in an accident, unless injured so seriously that immediate medical attention is required, must make his or her whereabouts known to his immediate supervisor for purposes of remaining available for a possible substance abuse test for the balance of the work day or eight hours after the accident, whichever is later. A covered employee subject to test hereunder who cannot be located following an accident for the balance of the work day or for eight hours after the accident shall be deemed medically unqualified for duty and shall not be permitted to return to work until he or she submits to a substance abuse test.
(e) Random and Unannounced Testing. Covered employees shall be subjected to random, unannounced urine, and/or breath testing for the purpose of detecting substance abuse. The process used for selection of a covered employee(s) to take a substance abuse test shall be determined by the City Manager, provided, however, that the selection process must yield a random result so that no predictable pattern of identifying the covered employee to be tested will exist, and provided further, that random testing shall be conducted on an intermittent schedule so that predictable time frames when tests will be administered cannot be ascertained.
A covered employee randomly selected for an unannounced substance abuse test shall immediately proceed to the designated sampling location to provide a test sample. A covered employee who refuses or fails to travel to the collection site or who refuses or fails to provide a test sample for substance abuse test analysis within a reasonable time after being randomly selected for the test shall be deemed medically unqualified for employment and shall be relieved of duty without pay until a sample is provided. Covered employees selected for testing who are not at work when selected shall not be tested. A sufficient number of alternate names shall be selected to be used in the place of absent employees. Employees on long-term leave shall be removed from the selection pool for the period of their disability.
The number of random unannounced drug abuse tests conducted annually shall equal or exceed fifty percent (50%) of the number of covered employee positions, whether vacant or filled, in the service of the City. The number of random unannounced alcohol tests conducted annually shall equal or exceed twenty-five percent (25%) of the number of covered employee positions, whether vacant or filled, in the service of the City. An employee shall only be subject to random alcohol testing while performing safety-sensitive functions or just before or just after the employee is to or has performed safety-sensitive functions.
(f) Return-to-Duty Testing. All covered employees who previously received an unsatisfactory result on a substance abuse test, including any second or confirming test if one was conducted, must undergo return-to-duty substance abuse testing before returning to work and be evaluated, and treated if necessary, for substance abuse, and be released to duty by a competent medical practitioner before returning to work. Covered employees who are subject to return-to-duty testing shall also be subject to six or more random and unannounced substance abuse tests, to be conducted when the covered employee is at work, during the first twelve months following his or her re-entry into employment separate and apart from their exposure to random and unannounced testing. A successful return-to-duty test for alcohol shall be a result of 0.02 or less. A negative screen for drugs and controlled substances shall be considered a successful test for return-to-duty purposes.
(g) Employee Requested Testing. Any employee who questions the results of a substance abuse test required or administered pursuant to subsections (a) through (e) hereof may request that a confirming test in addition to an initial test be performed. This test may be conducted by the same or a different testing facility, provided the facility is certified by DHHS to meet 29 CFR Part 40 requirements.
The testing shall be conducted with the same specimen/split sample that was originally submitted to the City's laboratory. All costs for tests requested by an employee are to be paid for by the employee if the results of the test are positive.
(Ord. 96-6-65. Passed 6-12-96.)