(A) The city’s mission is to ensure that all public services are delivered safely, efficiently and effectively. This mission is accomplished by establishing a drug- and alcohol-free work environment and ensuring that the workplace remains free from the effects of drugs and alcohol thereby promoting the health and safety of employees and the general public. In keeping with this mission, the city declares that the unlawful manufacture, distribution, dispensing, possession or use of controlled substances or misuse of alcohol is prohibited for all employees.
(B) All employees are expected to read and sign the Drug- and Alcohol-Free Workplace Acknowledgment (HR Form 05) in Appendix A within 30 days of employment or within 30 days of any amendment to the policy.
(C) This policy is intended to comply with all applicable federal and state regulations governing workplace anti-drug and alcohol programs. The United States Department of Transportation (USDOT) has also published 49 C.F.R. part 40, as amended, that sets standards for the collection and testing of urine and breath specimens. Under state law, the city has also chosen to follow the requirements of 803 KAR 25:280 to become a certified drug-free workplace.
(D) The city and all commercial driver’s license (CDL) employees are federally mandated to comply with the registration and reporting requirements of the Federal Motor Carrier Safety Administration (FMCSA) Clearinghouse under 49 C.F.R. part 382. This includes the city’s obligation to perform preemployment queries for all CDL applicants, perform annual queries for all CDL employees and report certain violations or activity as required under 49 C.F.R. part 382.
(1) CDL employees will register with the FMCSA Clearinghouse website and will provide the necessary consent for the city to perform clearinghouse queries, including electronic authorization for all full queries. If an employee fails to provide consent as required under this section, then the employee is unable to perform safety-sensitive functions under federal law and the employee will be removed from duty. The refusal to provide consent will also be considered a violation under this policy and the employee may be subject to disciplinary action including termination.
(2) Pursuant to 49 C.F.R. § 382.705, the following will be reported to the clearinghouse with any required documentation as outlined in the regulation by the close of the third business day following the date on which the information was obtained:
(a) An alcohol confirmation test result with an alcohol concentration of 0.04 or greater;
(b) A negative return-to-duty test result;
(c) A refusal to take an alcohol test pursuant to 49 C.F.R. § 40.261;
(d) A refusal to take a drug test as determined in accordance with 49 C.F.R. § 40.191(a)(1) through (4), as well as (6)(dd) test refusal of this policy. Note: Admissions to the collector of adulterating or substituting the specimen are also reportable;
(e) A report that the driver has successfully completed all follow-up tests as prescribed in the substance abuse professional (SAP) report in accordance with 49 C.F.R. §§ 40.307 through 40.311; and
(f) The city’s report of actual knowledge, as defined under 49 C.F.R. § 382.107 and in division (F) below, of the following:
1. On-duty alcohol use pursuant to 49 C.F.R. § 382.205;
2. Pre-duty alcohol use pursuant to 49 C.F.R. § 382.207;
3. Alcohol use following an accident pursuant to 49 C.F.R. § 382.209; and
4. Controlled substance use pursuant to 49 C.F.R. § 382.213.
(3) The information in (D)(2) above must include as applicable:
(a) Reason for the test;
(b) Driver’s name, date of birth, CDL number and state of issuance;
(c) Employer name, address and USDOT number;
(d) Date of the test;
(e) Date the result was reported; and
(f) Test result. The test result must be one of the following:
1. Negative (only required for return-to-duty tests administered in accordance with KRS 382.309);
2. Positive; and
3. Refusal to take a test.
(4) For each report of a violation of 49 C.F.R. §§ 40.261(a)(1) or 40.191(a)(1), the employer must report the following information:
(a) Documentation, including, but not limited to, electronic mail or other contemporaneous record of the time and date the driver was notified to appear at a testing site; and the time, date and testing site location at which the employee was directed to appear, or an affidavit, providing evidence of such notification;
(b) Documentation, including, but not limited to, electronic mail, other correspondence or an affidavit indicating the date the employee was terminated or resigned, if applicable; and
(c) Documentation including a certificate of service or other evidence, showing that the employer provided the employee with all documentation reported under division (D)(2) above, if applicable.
(5) Employers must report the following violations by the close of the third business day following the date on which the employer obtains actual knowledge, as defined at KRS 382.107, of:
(a) On-duty alcohol use pursuant to KRS 382.205;
(b) Pre-duty alcohol use pursuant to KRS 382.207;
(c) Alcohol use following an accident pursuant to KRS 382.209; and
(d) Controlled substance use pursuant to KRS 382.213.
(6) For each violation in division (D)(5) above, the employer must report the following information:
(a) Driver’s name, date of birth, CDL number and state of issuance;
(b) Employer name, address and USDOT number, if applicable;
(c) Date the employer obtained actual knowledge of the violation;
(d) Witnesses to the violation if any including contact information;
(e) Description of the violation;
(f) Evidence supporting each fact alleged in the description of the violation required under division (D)(5) above which may include, but is not limited to, affidavits, photographs, video or audio recordings, employee statements (other than admissions pursuant to KRS 382.121), correspondence or other documentation; and
(g) A certificate of service or other evidence showing that the employer provided the employee with all information reported under division (D)(2) above, if applicable.
(E) (1) This policy is intended to apply whenever anyone is representing or conducting business for the city. Accordingly, this policy applies during all working hours, while on call, paid standby and while performing work on behalf of the city while on or off city property. The policy applies to all city employees with special provisions designated to those employees identified as having responsibilities requiring a heightened safety-awareness level (HSAL).
(2) Those “safety-sensitive” positions identified as requiring a heightened safety-awareness level include, but may not be limited to:
(a) Police officers;
(b) Firefighters;
(c) Heavy equipment operators;
(d) Employees driving CDL-regulated vehicles; and
(e) Solid waste/sanitation drivers.
(F) For the purpose of this policy, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ACCIDENT. An occurrence associated with the operation of a vehicle or equipment if as a result:
(a) A person dies;
(b) An individual suffers a bodily injury and immediately receives medical treatment away from the scene of the accident;
(c) An employee receives a citation within eight hours of the occurrence under state or local laws for a moving traffic violation arising from the accident if the accident involved:
1. Bodily injury to any person who as a result of the injury immediately receives medical treatment away from the scene of the accident; and
2. One or more motor vehicles incurring disabling damage as a result of the accident requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(d) The employer could reasonably believe that employee’s drug or alcohol use could have contributed to an incident.
ACTUAL KNOWLEDGE. Defined by 49 C.F.R. § 382.107. ACTUAL KNOWLEDGE means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a commercial motor vehicle (CMV) while under the influence of alcohol or controlled substances or an employee’s admission of alcohol or controlled substance use except as provided in KRS 382.121. DIRECT OBSERVATION, as used in this definition, means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under KRS 382.307. As used in this section, TRAFFIC CITATION means a ticket, complaint or other document charging driving a CMV while under the influence of alcohol or controlled substances.
ADULTERATED SPECIMEN. A specimen that contains a substance that is not expected to be present in human urine or contains a substance expected to be present but is at a concentration so high that it is not consistent with human urine.
ALCOHOL. The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols contained in any beverage, mixture, mouthwash, candy, food preparation or medication.
ALCOHOL CONCENTRATION. Expressed in terms of grams of alcohol per 210 liters of breath as measured by an evidential breath-testing device or in blood alcohol content (BAC) when required for post-accident testing.
CANCELED TEST. A drug test that has been declared invalid by a medical review officer. A CANCELED TEST is neither positive nor negative.
CONSORTIUM. An entity which may involve varied pools of employers and their employees established to provide cost-effective services to employees to help the employers comply with the drug-free workplace program requirements.
DESIGNATED EMPLOYER REPRESENTATIVE (DER). An employee authorized by the employer to take immediate action to remove employees from safety-sensitive duties and to make required decisions in testing. The DER also receives test results and other communications for the employer consistent with the requirements of 49 C.F.R. parts 40 and 382. Additionally, the DER and/or his or her designee ensures compliance with the USDOT Clearinghouse requirements for employees with CDLs. For purposes of this policy, the City Clerk is the DER.
DEPARTMENT OF TRANSPORTATION (DOT). The department of the federal government which includes the U.S. Coast Guard (USCG), Federal Transit Administration (FTA), Federal Railroad Administration (FRA), Federal Highway Administration (FHA), Federal Motor Carrier Safety Administration (FMCSA), Research and Special Programs and the Office of the Secretary of Transportation.
DILUTE SPECIMEN. A specimen with creatinine and specific gravity values that are lower than expected for human urine.
DISABLING DAMAGE. Damage which precludes departure of any vehicle from the scene of the occurrence in its usual manner in daylight after simple repairs. DISABLING DAMAGE includes damage to vehicles that could have been operated but would have been further damaged if so operated. This does not include damage which can be remedied temporarily at the scene of the occurrence without special tools or parts, tire disablement without other damage even if no spare tire is available or damage to headlights, taillights, turn signals, horn, mirrors or windshield wipers that makes them inoperative.
EMPLOYEE. Defined in KRS 342.640 as every person in the service of the city under any contract of hire, express or implied, and every official or officer of those entities, whether elected or appointed, while performing their official duties; every person who is a member of a volunteer ambulance service, fire or police department; and every person who is a regularly enrolled volunteer member or trainee of an emergency management agency as established under KRS Chapters 39A to 39E.
EMPLOYEE ASSISTANCE PROGRAM (EAP). An established program providing:
(a) Professional assessment of employee personal concerns;
(b) Confidential and timely services to identify employee alcohol or drug abuse;
(c) Referral of employees for appropriate diagnosis, treatment and assistance regarding employee alcohol or substance abuse; and
(d) Follow-up services for employees who participate in a drug or alcohol rehabilitation program and are recommended for monitoring after returning to work.
EVIDENTIARY BREATH-TESTING DEVICE (EBT). A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath at the 0.02 and the 0.04 alcohol concentrations. Approved devices are listed on the NHTSA-conforming products list.
FEDERALLY REGULATED EMPLOYEES (FRE). Those designated in DOT regulations as safety sensitive employees and include those regulated by the Federal Aviation Administration (FAA) (aviation), Federal Motor Carrier Safety Administration (FMCSA) (commercial motor carriers), Pipeline and Hazardous Materials Safety Administration (PHMSA) (gas pipeline) and Federal Transit Administration (FTA) (transit). These employees include anyone with a CDL or mechanics who work on CDL vehicles.
HEIGHTENED SAFETY-AWARENESS LEVEL (HSAL) (SAFETY-SENSITIVE) POSITIONS. Those positions involving special, dangerous and skilled activities, and those that would involve exceptional duty to community citizens in the area of public safety.
MEDICAL REVIEW OFFICER (MRO). A licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated by the drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s confirmed positive test result, together with his or her medical history and any other relevant biomedical information.
NEGATIVE DILUTE. A drug test result which is negative for the five drug/drug metabolites but has a specific gravity value lower than expected for human urine.
NEGATIVE TEST RESULT FOR A DRUG TEST. A verified presence of the identified drug or its metabolite below the minimum levels specified in 49 C.F.R. part 40, as amended. An alcohol concentration of less than 0.02 BAC is a negative test result.
NON-NEGATIVE TEST RESULT. A test result found to be adulterated, substituted, invalid or positive for drug/drug metabolites.
PERFORMING A SAFETY-SENSITIVE FUNCTION. Includes any period in which an employee is actually performing, ready to perform or immediately available to perform such functions.
POSITIVE TEST RESULT FOR A DRUG TEST. A verified presence of the identified drug or its metabolite at or above the minimum levels specified in 49 C.F.R. part 40, as amended. In addition, the claimed use of cannabidiol (CBD) products will not be considered a medical excuse for a positive marijuana test. A POSITIVE ALCOHOL TEST RESULT means a confirmed alcohol concentration of 0.04 BAC or greater.
PROHIBITED DRUG. Cannabinoids/tetrahydrocannabinol (THC), cocaine, opiates, amphetamines or phencyclidine at levels above the minimum thresholds specified in 49 C.F.R. part 40, as amended. In addition, the city tests for benzodiazepines, propoxyphene, methaqualone, methadone, barbiturates, synthetic narcotics, illicit substances and volatile substances, as defined by KRS 217.900, KRS 218A.010, 803 KAR 25:280 and 902 KAR 55, as amended.
REHABILITATION PROGRAM. A service provider that provides confidential, timely and expert identification, assessment, treatment and resolution of employee drug or alcohol abuse, and may include inpatient or outpatient programs as well as the EAP.
SAFETY-SENSITIVE FUNCTIONS. Include:
(a) The operation of a vehicle by an employee when the operation of the vehicle requires the driver to hold a commercial driver’s license (CDL);
(b) Maintaining a CDL vehicle or equipment used in repair of CDL vehicles; and
(c) The essential functions of actions performed by employees are considered to establish HSAL positions.
SUBSTANCE. Drugs or alcohol.
SUBSTANCE ABUSE PROFESSIONAL (SAP). A licensed physician (medical doctor or doctor of osteopathy), licensed or certified psychologist, social worker, employee assistance professional or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium/Alcohol and other Drug Abuse) with knowledge of and clinical experience in the diagnosis and treatment of drug- and alcohol-related disorders.
SUBSTITUTED SPECIMEN. A specimen with creatinine and specific gravity value that is so diminished that it is not consistent with normal human urine.
TEST REFUSAL. When an employee does any of the following:
(a) Fails to appear for any drug or alcohol test (except a preemployment test) within a reasonable time as determined by the employer consistent with any applicable DOT agency regulations after being directed to do so by the employer;
(b) Fails to remain at the testing site prior to the commencement of the test and until the testing process is complete provided that an employee who leaves the testing site before the testing process commences for a preemployment test is not deemed to have refused to test;
(c) Fails to provide a urine, saliva/breath or blood specimen for any drug or alcohol test required by regulations or this policy;
(d) Fails to permit the observation or monitoring of the employee’s provision of a specimen in the case of a directly observed or monitored collection in a drug test;
(e) Fails to provide a sufficient amount of urine or breath when directed and it has been determined through a required medical evaluation that there was no adequate medical explanation for the failure;
(f) Fails or declines to take an additional drug or alcohol test the employer or collector has directed the employee to take;
(g) Fails to undergo a medical examination or evaluation as directed by the MRO as part of the verification process or as directed by the DER. In the case of a pre employment drug test, the employee is deemed to have refused to test on this basis only if the preemployment test is conducted following a contingent offer of employment. If there was no contingent offer of employment, the MRO will cancel the test; and
(h) Fails to cooperate with any part of the testing process, e.g., refuses to empty pockets when directed by the collector, behaves in a confrontational way that disrupts the collection process and/or fails to wash hands after being directed to do so by the collector.
VERIFIED NEGATIVE TEST. A drug test result reviewed by a MRO and determined to have no evidence of prohibited drug use above the minimum cutoff levels established by the Department of Health and Human Services (HHS).
VERIFIED POSITIVE TEST. A drug test result reviewed by a MRO and determined to have evidence of prohibited drug use above the minimum cutoff levels specified in 49 C.F.R. part 40, as revised.
VALIDITY TESTING. The evaluation of the specimen to determine if it is consistent with normal human urine. The purpose of validity testing is to determine whether certain adulterants or foreign substances were added to the urine, if the urine was diluted or if the specimen was substituted.
(G) Education and training requirements for this policy includes the following.
(1) Every employee will receive a copy of this policy and will have ready access to the corresponding federal and state regulations, including 803 KAR Part 25 and 49 C.F.R. parts 40 and 382, as amended. In addition, all covered employees will undergo a minimum of 60 minutes of training on the signs and symptoms of drug use, including the effects and consequences of drug use on personal health, safety and the work environment. The training also includes manifestations and behavioral cues that may indicate prohibited drug use.
(2) Thereafter, all employees will receive at least 30 minutes of refresher training which will include the dangers of alcohol and drug abuse in the workplace; the employer’s policy of maintaining a drug-free workplace; the effects of alcohol and drug use on an individual’s health, work and personal life; the disease of alcohol or drug addiction; signs and symptoms of an alcohol or drug problem; alcohol and drug testing; the role of coworkers and supervisors in addressing alcohol or drug abuse; available drug counseling, rehabilitation and referrals to an EAP; and penalties for violation of the Drug- and Alcohol-Free Workplace Policy.
(3) All supervisors will receive, in addition to the training specified in division (G)(2) above, at least 30 minutes each year of alcohol and drug abuse education and awareness training which will include, at a minimum, information on recognizing the signs of employee alcohol or drug abuse, how to document signs of employee alcohol or drug abuse, how to refer employees to an EAP or other alcohol or drug abuse treatment programs, legal and practical aspects of reasonable suspicion testing for the presence of drugs and alcohol and other issues regarding drug abuse that the trainer or the city deem necessary to include.
(4) The employer will annually verify that the frequency and duration of each employee and supervisor training session meets the requirements of this section and that all employees have participated in the required alcohol and drug abuse education and awareness training program.
(H) Prohibited substances addressed by this policy include the following:
(1) Illegally used controlled substance or drugs under the Drug-Free Workplace Act of 1988. Any drug or any substance identified in Schedule I through V of § 202 of the Controlled Substance Act (21 U.S.C. § 812), as further defined by 21 C.F.R. parts 1300.11 through 1300.15, and as defined by 803 KAR 25:280 is prohibited at all times in the workplace unless a legal prescription has been written for the substance. This includes, but is not limited to, marijuana, amphetamines, opiates, phencyclidine (PCP) and cocaine, as well as any drug not approved for medical use by the U.S. Drug Enforcement Administration (USDEA) or the U.S. Food and Drug Administration (USFDA). Illegal use includes use of any illegal drug, misuse of legally prescribed drugs and use of illegally obtained prescription drugs such as oxycodone, oxymorphone, hydrocodone and hydromorphone;
(2) Federal drug testing regulations, 49 C.F.R. part 40, require that all covered employees be tested for marijuana metabolites/THC (this includes any CBD products containing THC at or above the required threshold), cocaine, amphetamines, opiates and phencyclidine. Illegal use of these five drugs is prohibited at all times, and thus, covered employees may be tested for these drugs anytime that they are on duty;
(3) The State Certified Drug-Free Workplace testing regulations (803 KAR 25:280) require that all covered employees be tested for amphetamines, cannabinoids (THC, which includes any CBD products containing THC at or above the required threshold), cocaine, opiates, phencyclidine (PCP), benzodiazepines, propoxyphene, methaqualone, methadone, barbiturates and synthetic narcotics;
(4) The appropriate use of legally prescribed drugs and nonprescription medications is not prohibited. However, any HSAL employee taking any legal substance which carries a warning label indicating that mental functioning, motor skills or judgment may be adversely affected must report this information to a supervisor, and the employee is required to provide a written release from his or her doctor or pharmacist indicating that the employee can perform his or her safety-sensitive functions; and
(5) The use of beverages containing alcohol (including any mouthwash, medication, food or candy) or any other substances such that alcohol is present in the body while performing safety-sensitive job functions is prohibited.
(I) Types of prohibited conduct include the following.
(1) All employees are prohibited from reporting for duty or remaining on duty any time there is a quantifiable presence of a prohibited drug in the body above the minimum thresholds defined in 49 C.F.R. part 40 or any other state or federal laws, as amended.
(2) No employee will consume alcohol while at work or while on call. If an on-call employee has consumed alcohol, he or she must acknowledge the use of alcohol at the time that he or she is called to report for duty. The employee will subsequently be relieved of his or her on-call responsibilities and be subject to discipline.
(3) The city will not permit any employee to perform any work-related activity especially safety-sensitive functions if it has actual knowledge that the employee is using alcohol.
(4) No employee will report to work or remain on duty while having an alcohol concentration of 0.02 or greater regardless of when the alcohol was consumed.
(5) No employee will consume alcohol for eight hours following involvement in an accident or until her or she submits to the post-accident drug/alcohol test, whichever occurs first.
(6) No employee will consume alcohol within four hours prior to the performance of any job functions.
(7) The city, under its own authority, also prohibits the consumption of alcohol at all times that the employee is on duty or anytime the employee is in uniform.
(8) Consistent with the Drug-Free Workplace Act of 1988 and State Certified Drug-Free Workplace regulations, all employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of prohibited substances in the workplace while in uniform or while on city business.
(J) Consistent with the Drug-Free Workplace Act of 1998, all employees are required to notify the city management of any criminal drug statute conviction for a violation occurring in the workplace within five days after such conviction. Failure to comply with this provision will result in termination.
(K) Testing requirements for this policy include the following.
(1) Analytical urine drug testing and breath testing for alcohol will be conducted as required by 49 C.F.R. part 40, 803 KAR 25:280 and any other statutes, as amended. All employees will be subject to testing prior to employment for reasonable suspicion, post-accident and random, if applicable. All employees who have tested positive for drugs or alcohol on a random test, reasonable suspicion test or post-accident test will be tested prior to returning to duty after completion of the SAP’s recommended treatment program and subsequent release to duty. Follow-up testing following the return-to-duty will be conducted as the law requires and/or at the discretion of the SAP.
(2) All employees will be subject to blood draw for post-accident drug and alcohol testing as a condition of ongoing employment with the city. Any employee who refuses to comply with a request for testing will be removed from duty and subject to discipline as defined in this policy. Any employee who is suspected of providing false information in connection with a drug test or who is suspected of falsifying test results through tampering, contamination, adulteration or substitution will be required to undergo an observed collection. Verification of the above-listed actions will be considered a test refusal resulting in the employee’s removal from duty and discipline, as defined in this policy.
(3) A drug or alcohol test can be performed any time an employee is on duty.
(L) Testing for drugs and alcohol will be conducted in a manner to assure a high degree of accuracy and reliability using techniques, equipment and laboratory facilities which have been approved by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA). All testing will be conducted consistent with the procedures set forth in 49 C.F.R. part 40, as well as 803 KAR 25:280, and any other statutes, as amended. The procedures will be performed in a private and confidential manner and every effort will be made to protect the employee, the integrity of the drug testing procedure and the validity of the test result.
(M) Preemployment testing will be done as follows.
(1) All applicants will undergo urine drug testing and breath alcohol testing within 48 hours after a conditional offer of employment is made.
(2) An applicant will not be hired into a position unless the applicant takes a drug test with verified negative results and an alcohol test with a BAC below 0.02.
(3) An employee will not be placed into a position until the employee takes a drug test with verified negative results and an alcohol test with a BAC below 0.02.
(4) If an applicant fails a preemployment drug or alcohol test, tampers with or attempts to tamper with a urine specimen in any manner, the conditional offer of employment will be rescinded. Failure of a preemployment drug and/or alcohol test will disqualify an applicant for employment for a period of at least one year. Evidence of the absence of drug dependency from an SAP that meets with 49 C.F.R. part 40, as amended, and a negative preemployment drug test and an alcohol test with a BAC below 0.02 will be required prior to further consideration for employment. The cost for the assessment and any subsequent treatment will be the sole responsibility of the applicant.
(5) When an employee being placed into a position submits a drug test with a verified positive result, or an alcohol test with a BAC above 0.02, the employee will be subject to disciplinary action.
(6) If a preemployment test is canceled, the city will require the applicant to take and pass another preemployment drug test.
(7) Applicants for DOT positions are required to report previous DOT covered employer drug and alcohol test results. Failure to do so will result in the employment offer being rescinded.
(N) Reasonable suspicion testing will be conducted as follows.
(1) All employees and volunteers will be subject to a reasonable suspicion drug and/or alcohol test when there are reasons to believe that drug or alcohol use is impacting job performance and safety. REASONABLE SUSPICION will mean that there is objective evidence, based upon specific, contemporaneous, articulable observations of the employee’s appearance, behavior, speech or body odor that are consistent with possible drug use and/or alcohol misuse. Reasonable suspicion referrals must be made by one supervisor who is trained to detect the signs and symptoms of drug and alcohol use and who reasonably concludes that an employee may be adversely affected or impaired in his or her work performance due to possible prohibited substance abuse or alcohol misuse. A reasonable suspicion drug test can be performed any time the employee or volunteer is on duty.
(2) The DER or his or her designee will be notified of any indication of reasonable suspicion. Both the observing supervisor and the DER or his or her representative (if available) will review the policies and procedures herein, and if necessary, make arrangements with a testing facility of the city’s choosing to conduct reasonable suspicion drug and/or alcohol testing as soon as possible. If the DER or his or her representative is not available, the observing supervisor will obtain the assistance of another city supervisor or other credible and reliable source. He or she will complete the Reasonable Suspicion Observation Form and forward it to the DER. If, after completing the form, it is determined that there is in fact reasonable suspicion that the employee is under the influence of drugs and/or alcohol, the observing supervisor or his or her designee will notify the employee and accompany him or her to the testing site. Supervisors should avoid placing themselves and/or others in a situation which might endanger the physical safety of those present. The Reasonable Suspicion Observation Form will be attached to the forms reporting the test results.
(3) When a reasonable suspicion test is ordered, the employee must immediately submit to testing. The observing supervisor and/or designee will remain at the testing site with the employee being tested until testing is completed. Any employee who is tested for reasonable suspicion will be placed on administrative leave with pay until the results of the test are known. After submitting to the drug/alcohol test, the employee may not return to work until the results of the test are known and only then if the results are negative. Only the DER may order a reasonable suspicion test.
(4) An employee who refuses an instruction to submit to a drug/alcohol test will not be permitted to finish his or her shift and will immediately be placed on administrative leave pending disciplinary action.
(O) Post-accident testing will be conducted as follows.
(1) Employees are subject to blood drug and alcohol testing when needed to evaluate the root cause of a workplace accident that harmed or could have harmed employees, where the employee’s performance likely contributed to the accident, the employer has reasonable suspicion to believe that drugs or alcohol may have contributed or as required under state or federal laws. Testing is not limited to only the injured employee(s).
(2) Circumstances that constitute probable belief that an employee’s performance likely contributed to the accident will be presumed to arise in any instance involving a work related accident or injury involving any or all of the following:
(a) A human fatality;
(b) Bodily injury with immediate medical treatment away from the scene where a citation is issued to the driver or the driver is found responsible for the accident;
(c) Any disabling damage to a vehicle where a citation is issued to the driver or the driver is found responsible for the accident. DISABLING DAMAGE is defined as damage that precludes departure of any vehicle from the scene of the occurrence in its usual manner after simple repairs. Disabling damage also includes damage to vehicles that could have been operated but would have been further damaged if so operated; and
(d) A safety-sensitive employee or position who is involved in safety-sensitive activities during the occurrence of the accident and who cannot be discounted as a contributing factor to the accident.
(3) Any city employee when there is a need to evaluate the root cause of a workplace accident that could have harmed employees and there is reasonable suspicion to believe that the use of drugs or alcohol by the employee could have contributed to the accident. (See the Reasonable Suspicion Observation Form.) Due to varying types of accident causes, not all accidents will require post-accident testing. Exceptions for requiring post-accident drug and alcohol testing will include, but may not be limited to, the following types of accidents or injuries:
(a) Injuries whose onset is cumulative or gradual, such as carpal tunnel syndrome, progressive hearing loss, mental disorders, dermatitis, respiratory diseases, skin disorders and the like;
(b) Injuries where the employee can be completely discounted as the contributing factor, e.g., injuries caused by a third party or some other uncontrollable force or event, such as weather, insects and the like; and
(c) Injuries where the employee can be completely discounted as the major contributing factor or those injuries occurring during physical fitness or a training event in which the employee did everything within reason to avoid the injury or accident, i.e., was performing training as instructed.
(4) Post-accident investigations must take place within two hours following the accident.
(5) As soon as practicable following an accident, the investigating supervisor will notify the employee operating the vehicle or equipment and all other employees whose performance could have contributed to the accident of the need for the blood test. All employees whose conduct could have contributed to the accident will be subject to testing, not only the employee who reported an injury. The DER along with the supervisor will make the determination using the best information available at the time of the decision. (See Post Accident Documentation Summary and Checklist.) Under no circumstances will the employee be allowed to drive himself or herself to the testing facility.
(6) Pursuant to KRS 342.610(4), all post-accident testing will be done by blood draw.
(7) The appropriate supervisor will ensure that an employee required to be tested under this section is tested as soon as practicable but no longer than eight hours following the accident for alcohol and within 32 hours for drugs.
(a) If a blood alcohol test is not performed within two hours of the accident, the supervisor will document the reason(s) for the delay.
(b) If the alcohol test is not conducted within eight hours, attempts to conduct the alcohol test must cease and the reasons for the failure to test documented.
(c) If the drug test is not conducted within 32 hours, attempts to conduct the drug test must cease and the reasons for the failure to test documented.
(8) Any employee involved in an accident must refrain from alcohol use for eight hours following the accident or until they undergo a post-accident blood alcohol test.
(9) An employee who is subject to post-accident testing who fails to remain readily available for such testing including notifying a supervisor of his or her location if he or she leaves the scene of the accident prior to submission to such test may be deemed to have refused to submit to testing.
(10) Nothing in this section will be construed to require the delay of necessary medical attention for the injured following an accident, to prohibit an employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.
(11) In the rare event that the city is unable to perform a drug and alcohol test, e.g., the employee is unconscious or the employee is detained by law enforcement agency, the city may use drug and alcohol post-accident test results administered by local law enforcement officials in lieu of the test. The local law enforcement officials must have independent authority for the test, and the employer must obtain the results in conformance with local law.
(12) The city reserves the right to test all employees whose conduct may have contributed to the accident.
(13) An employee involved in an accident while on an out-of-town assignment will notify his or her supervisor as soon as possible but no later than two hours after the accident occurred. The supervisor will notify the DER to discuss possible drug/alcohol testing requirements.
(P) Random testing will be conducted as follows.
(1) All employees in HSAL, FRE and DOT positions will be subjected to random unannounced testing. The selection of employees will be made by a scientifically valid method of randomly generating an employee identifier from the appropriate pool of safety-sensitive employees.
(2) The dates for administering unannounced testing of randomly selected employees will be spread reasonably throughout the calendar year.
(3) Employees in HSAL positions other than those classified as FRE will have random alcohol testing done at a rate of at least 10% annually and drug testing at a rate of at least 20% annually.
(4) The number of FRE employees randomly selected for drug/alcohol testing during the calendar year will not be less than the percentage rates established by federal regulations for those safety-sensitive employees subject to random testing by federal regulations.
(5) All employees in FRE positions will be selected from a pool that is separate from the random selection pool for other non-federally regulated HSAL positions.
(6) Each covered employee will be in a pool from which the random selection is made. Each covered employee in the pool will have an equal chance of selection each time the selections are made. Employees will remain in the pool and be subject to selection regardless of whether the employee has been previously tested. There is no discretion on the part of management in the selection and notification of the individuals who are to be tested.
(7) Random tests can be conducted at any time during an employee’s shift.
(8) Employees are required to immediately proceed to the collection site upon notification of their random selection.
(Q) When there are no specific, contemporaneous, articulable objective facts that indicate current drug or alcohol use but the employee (who is not already a participant in a treatment program) admits the abuse of alcohol or other substances to a supervisor in his or her chain of command, the employee will be referred to the SAP for an assessment. The city will place the employee on administrative leave. Testing in this circumstance would be performed under the direct authority of the DER. Since the employee self-referred to management, testing under this circumstance would not be considered a violation of this policy or a positive test result under federal authority. However, self referral does not exempt the employee from testing under federal authority as specified in this policy.
(R) Refusal to submit to a drug/alcohol test will be considered a positive test result and a direct act of insubordination and will result in termination.
(S) Consequences of a positive alcohol or drug test include the following.
(1) As soon as practicable after receiving notice of a verified positive drug test result, a confirmed alcohol test result or a test refusal, the DER will contact the employee’s supervisor to have the employee removed from the workplace.
(2) The employee will be referred to an SAP/EAP for an assessment. The SAP/EAP will evaluate each employee to determine what assistance if any the employee needs in resolving problems associated with prohibited drug use or alcohol misuse.
(3) A positive drug and/or alcohol test will also result in disciplinary action as specified herein.
(4) For employees with a CDL, positive test results and other violations will be reported to the DOT Clearinghouse in accordance with 49 C.F.R. parts 40 and 382.
(5) For the first instance of a verified positive test from a sample submitted as the result of a random test, reasonable suspicion test, return-to-duty test, post-accident test or follow-up drug/alcohol test (0.04 BAC or greater), disciplinary action against the employee will include the following.
(a) Mandatory referral to an SAP/EAP for assessment, formulation of a treatment plan and execution of a return-to-work agreement. Failure to execute or remain compliant with the return-to-work agreement will result in termination of employment.
(b) COMPLIANCE WITH THE RETURN-TO-WORK AGREEMENT means that the employee has submitted to a drug/alcohol test immediately prior to returning to work; the result of that test is negative; in the judgment of the SAP/EAP the employee is cooperating with their SAP/EAP-recommended treatment program; and the employee has agreed to periodic unannounced follow-up testing.
(c) Refusal to submit to a periodic unannounced follow-up drug/alcohol test will be considered a direct act of insubordination and will result in termination.
(d) A periodic unannounced follow-up drug/alcohol test which results in a verified positive will result in termination from employment.
(6) The second instance of a verified positive drug or alcohol (0.04 BAC or greater) test result,
including a sample submitted under the random test, reasonable suspicion test, return-to duty test, post-accident test or follow-up drug/alcohol test provisions herein, will result in termination from employment.
(7) A confirmed alcohol test result of 0.02 to 0.039 BAC will result in the removal of the employee from duty for eight hours or the remainder of the workday, whichever is longer. The employee will not be allowed to return to duty for his or her next shift until he or she submits to an alcohol test with a result of less than 0.02 BAC. If the employee has an alcohol test result of 0.02 to 0.039 two or more times within a six-month period, the employee will be removed from duty and referred to the SAP/EAP for assessment and treatment consistent with this policy.
(8) The cost of any treatment or rehabilitation services will be paid directly by the employee or his or her insurance provider. The employee will be permitted to take accrued sick leave or administrative leave to participate in the SAP/EAP-prescribed treatment program. If the employee has insufficient accrued leave, the employee will be placed on leave without pay until the SAP/EAP has determined that the employee has successfully completed the required treatment program and releases them to return to duty.
(T) Return-to-duty testing will be done as follows.
(1) All employees who previously tested positive on a drug or alcohol test or refused a test must test negative for drugs, alcohol (negative being below 0.02 BAC) or both and be evaluated and released by the SAP/ EAP before returning to work.
(2) For an initial positive drug test, a return-to-duty drug test is required and an alcohol test is allowed. For an initial positive alcohol test, a return-to-duty alcohol test is required and a drug test is allowed.
(3) Following the initial assessment, the SAP/EAP will recommend a course of rehabilitation unique to the individual. The SAP/EAP will recommend the return-to-duty test only when the employee has successfully completed the treatment requirement and is known to be drug- and alcohol-free and there are no undue concerns for public safety.
(U) Employees will be required to undergo frequent unannounced drug and alcohol follow-up testing upon return to duty. The follow-up testing will be performed for a period of one to five years after the successful completion of treatment with a minimum of six tests to be performed the first year. The frequency and duration of the follow-up tests (beyond the minimums) will be determined by the involved SAP/EAP reflecting their assessment of the employee’s unique situation and recovery progress. Follow-up testing should be frequent enough to deter and/or detect a relapse. Follow-up testing is separate and in addition to the random testing, post-accident testing, reasonable suspicion testing and return-to-duty testing.
(V) Employee assistance program (EAP) information includes the following.
(1) Alcoholism and controlled substance addiction are recognized as diseases responsive to proper treatment. The city’s health insurance plan through Anthem contains a level of care available for substance abuse treatment through an EAP provided for employees as part of their health care coverage. The EAP can be reached by calling 800-865-1044.
(2) All employees of the city are strongly encouraged to voluntarily contact the EAP if he or she believes he or she or an immediate family member might have a problem with drug or alcohol abuse. An employee who feels that he or she has developed an addiction or dependence on alcohol or drugs may be entitled to other benefits in addition to the EAP herein described. The decision to seek such benefits or not is the sole responsibility of the employee. All information concerning the use of the medical insurance plan for this purpose will be treated as confidential medical information. Employees who seek treatment or counseling for substance abuse problems may be eligible for leave pursuant to the city’s leave policies.
(3) If an employee has been identified by an SAP as needing assistance in resolving problems associated with alcohol or controlled substances, the employee will be subject to follow-up testing as prescribed elsewhere in this policy. The SAP will be either a licensed physician, certified psychologist, social worker, employee assistance professional or addiction counselor.
(4) Employees who voluntarily report a substance abuse problem prior to being required to take a controlled substance or alcohol test, as defined in this policy, will not be subject to disciplinary action if they voluntarily and conscientiously seek substance abuse assistance and agree to a treatment plan. However, such an employee must understand that if the problem is not corrected and satisfactory job performance is not maintained, he or she will be subject to disciplinary action up to and including termination of employment. Failure to seek such assistance or to abide by the terms of the treatment plan will be grounds for termination. Upon voluntarily reporting a substance abuse problem, the employee will be required to sign a return-to-work agreement that will further define conditions of continued employment.
(5) The city’s EAP provides services to employees regardless of race, color, religion, national origin, disability, sex, age or any other state or federal-protected class.
(W) The city is dedicated to assuring fair and equitable application of this drug- and alcohol-free workplace policy. Therefore, supervisors are required to use and apply all aspects of this policy in an unbiased and impartial manner. Any supervisor who knowingly disregards the requirements of this policy or who is found to deliberately misuse the policy towards subordinates will be subject to disciplinary action up to and including termination.
(X) Confidentiality of drug testing procedures and records are as follows.
(1) Drug/alcohol testing records will be maintained by the City Clerk and except as provided below or by law, the results of any drug/alcohol test will not be disclosed without express written consent of the tested employee.
(2) The employee, upon written request, is entitled to obtain copies of any records pertaining to his or her use of prohibited drugs or misuse of alcohol, including any drug or alcohol testing records. Employees have the right to gain access to any pertinent records such as equipment calibration records and records of laboratory certifications. Employees may not have access to SAP referrals and follow-up testing plans.
(3) Records of a verified positive drug/alcohol test result will be released to the department director and personnel manager on a need-to-know basis.
(4) Records will be released to a subsequent employer only upon receipt of a written request from the employee.
(5) Records of an employee’s drug/alcohol tests will be released to the adjudicator in a grievance, lawsuit or other proceeding initiated by or on behalf of the tested individual arising from the results of the drug/alcohol test. The records will be released to the decision maker in the proceeding. The information will only be released with the binding stipulation from the decision maker to make it available only to parties in the proceeding.
(6) Records will be released to the DOT or any DOT agency with regulatory authority over the employer or any of its employees.
(7) If requested, records will be released by a federal, state or local safety agency with regulatory authority over the city or the employee.
(8) If a party seeks a court order to release a specimen or part of a specimen, contrary to any provision of C.F.R. part 40, as amended, necessary legal steps to contest the issuance of the order will be taken.
(Y) Any questions regarding this policy or any other aspect of the substance abuse policy should be directed to the DER.