186.04 GROUNDS FOR SUBSTANCE ABUSE TESTING FOR CITY EMPLOYEES NOT COVERED UNDER CHAPTER 180.

   All City employees and applicants not covered under Chapter 180 shall be subject to substance abuse testing of either urine and/or breath under the following circumstances:

   (a)    Reasonable Suspicion Testing. 

      (1)   City employees shall be subject to a fitness for duty evaluation, which shall include appropriate urine and/or breath testing, when a supervisor has reasonable suspicion that controlled substance use, drug abuse, or alcohol use is or could adversely affect an employee's job performance. A recommendation of reasonable suspicion testing shall be made on the basis of documented objective facts and circumstances which are consistent with the long or short term effects of substance abuse. Reasonable suspicion means an apparent state of existing facts, circumstances, or information which results from inquiry or observation by a supervisor, or from a credible source, which would induce a reasonably intelligent and prudent person to believe an employee is under the influence of or using controlled substances, drugs, or alcohol. The determination of a need for reasonable suspicion testing must be made by an 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 the appearance, behavior, speech, or body odors of an employee, that a covered employee's work, mental faculties, or physical capabilities are presently being impaired or affected by substance abuse. Examples of reasonable suspicion include, but are not limited to, the following:

         A.   Observable phenomena, such as direct observation of drug use and/or the physical symptoms or manifestation of being under the influence of a drug of abuse or alcohol;

         B.   Adequate documentation of unsatisfactory work performance shown by the behavioral, speech and performance indicators of alcohol or drug misuse, for unexplained reasons;

         C.   Evidence of the manufacture, distribution, dispensing, possession or use of controlled substances, drugs, alcohol, or other prohibited substances;

         D.   Occurrence of a serious or potentially serious accident that may have been caused by human error;

         E.   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;

         F.   Fights (deemed to be 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;

         G.   Bizarre or unusual on-the-job behavior where such conduct is commonly associated with drug or alcohol use or abuse.

      (2)   Possession of a controlled substance shall be reasonable suspicion for requiring a controlled substance test. Possession of legally obtained prescription drugs shall not be grounds for a reasonable suspicion test if the covered employee can:

         A.   Satisfactorily explain the reason for possession of the prescription drug;

         B.   Identify the physician who prescribed the drug, which can be verified by the pharmacy filling the prescription or the prescribing physician; and

         C.   Establish that the prescription drug use has not impaired the employee's work performance. A satisfactory explanation shall not negate reasonable suspicion if the employee's mental or physical abilities appear to be impaired by the prescription drug.

         Supervisors shall document in writing all observations leading to their decision to request a reasonable suspicion substance abuse test within a reasonable time of making the decision to require such a test. A reasonable suspicion test shall be conducted within two hours of an employee's notice that the employee will be required to take the test. If the test is not conducted within two hours, written record shall be made stating the reason the test was not promptly administered. No test shall be conducted after eight hours following the employee's notification and documentation shall be made of why the test was not administered.

    (b)    Post-Accident Testing. An employee shall be subject to blood, breath, urine or other process testing when an employee is involved in an on-the-job accident subject to the following criteria:

      (1)   “On-the-job accident” shall be defined both by reference to this chapter and by reference to any applicable collective bargaining agreement;

      (2)   Any accident unrelated to the operation of a motor vehicle that results in a fatality to any person, or significant personal injury in the estimation of any supervisor, or substantial property damage in the estimation by any supervisor shall invoke the need for post-accident testing; or

      (3)   Any accident involving a motor vehicle when a traffic citations or summons in lieu of citation is issued to the City employee shall invoke the need for post-accident testing.

         Post-accident testing shall not be permitted to delay the administration of necessary medical attention to injured employees. Once an employee has been notified that a post-accident test 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 no tests have been conducted within eight hours of the employee notification, no test shall be administered and a record shall be made of why the test was not administered. An employee engaged in an accident which results in material damage or personal injury and who is so seriously injured that a substance abuse test cannot be obtained within the requisite two hour period, shall execute a medical consent form allowing an analysis of any adequate substitute bodily fluids or samples taken within two hours of the accident for the purposes of medical treatment to be used for the purpose of substance abuse testing (assuming scientifically reliable results can be obtained). Failure to grant such consent shall cause the employee to be deemed medically unqualified for duty such that a substance abuse test is required before the employee may return to work. The City may, but shall not be required to, substitute, accept, and rely upon the results of any blood, breath, urine or other process 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, drugs, and controlled substance abuse.

         Any employee involved in an accident, unless injured so seriously that immediate medical attention is required, must remain available to his or her supervisor for a substance abuse test for the balance of the work day or eight hours after the accident, whichever is later. An employee subject to testing who cannot be located following an 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 and may be subject to disciplinary action.

      (Ord. 98-6-61. Passed 6-24-98.)

   (c)    Return-to-Duty Testing. All employees who previously received an unsatisfactory result on the 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 for duty by a competent medical practitioner before returning to work. 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.

   (d)    Employee Requested Testing. Any employee who questions the results of a substance abuse test required pursuant to this chapter may request that a confirming test in addition to the 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. If possible, employee requested testing shall be conducted with the same specimen that was originally submitted to the City's laboratory. All costs for an employee requested test shall be paid by the employee.

      (Ord. 96-12-133. Passed 12-16-96.)