(a) Definitions.
(1) Covered Employee: For the purpose of this section covered employee shall include any Village employee not covered by any other drug and alcohol testing program within the Village.
(2) Critical Incident: A situation which results in extensive damage to property or which causes or has the immediate potential of causing serious physical injury or death to any person, or any motor vehicle accident which results in visible damage to property or physical injury to any individual.
(3) Drug Abuse: The use of cannabis or any controlled substance which has not been legally prescribed and/or dispensed, and/or the misuse of legally prescribed drug(s) or overuse or inappropriate use of nonprescription drug(s).
(4) Drug Misuse: The overuse or inappropriate use of any legally obtained prescription or nonprescription drug.
(5) Drug Test: A urinalysis test consisting of an initial screening step and a confirmation step employing gas chromatography/mass spectrometry (GC/MS) utilizing urine samples collected according to procedures and a chain of custody established by highway patrol protocol equivalent to procedures for the handling of evidence in criminal cases.
(6) Felony Drug Abuse: Any drug abuse that would constitute a felony under the laws of the State of Ohio.
(7) Illegal Drug: Any substance for which the possession, sale, distribution, manufacture, or use by unlicensed persons is prohibited by law.
(8) Illegal Drug Usage: Includes the use of cannabis or any controlled substance which has not been legally prescribed and/or dispensed.
(9) Non-Prescription Drug: Any substance which is not legally controlled and is available without a medical prescription, but which, when improperly or inappropriately used, may hamper the ability to perform assigned duties or impair judgment, alertness' and any other physical, emotional or mental capacities.
(10) Prescription Drug: Any controlled substance for which possession and use is legal when prescribed by licensed medical personnel.
(11) Alcohol: The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols including methyl or isopropyl alcohol, and it includes the presence in the body, as detected by breath, blood or urine test, of intoxicating agents in beverage alcohol including, but not limited to ethyl alcohol, methyl alcohol, or isopropyl alcohol.
(12) Alcohol Concentration: The alcohol in a volume of breath expressed in terms of grams of alcohol per two hundred ten (210) liters of breath as indicated by a breath test device.
(13) Random Test: Random or periodic testing whereby employees are ordered to submit to a drug or alcohol test without any basis to believe the employee has used drugs.
(14) Probable Cause: Suspicion based on knowledge sufficient to induce a prudent and cautious man to believe an employee has engaged in illegal drug usage, drug abuse or misuse, or is currently under the influence of alcohol or drugs while on the job. Probable Cause of drug abuse, or misuse or alcohol misuse may be based upon behavioral and/or performance factors which include, but are not limited to the following:
A. Observable phenomena, such as direct observation of drug or alcohol use or possession and/or physical symptoms of being under the influence of a drug or alcohol;
B. A pattern of abnormal conduct or erratic behavior, including abnormal leave patterns;
C. Arrest or conviction for a drug or alcohol related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug or alcohol possession, use, or trafficking;
D. Evidence that an employee has tampered with a previous drug test;
E. Facts or circumstances developed in the course of an authorized investigation of an accident or unsafe working practice.
(b) Basis for Ordering an Employee to be Tested for Drug or Alcohol Abuse or Misuse.
(1) At an unannounced time once each calendar quarter the employer may randomly test covered employees, exclusive of seasonal employees, as part of its random testing program for Village employees in which no more than twelve and one-half percent (12 1/2%) of such employees are tested. Such random testing shall use the testing procedures outlined in sub-section C below and all other procedures followed shall not conflict with other sections of this item.
(2) In addition to random testing, covered employees may be tested for drug abuse or alcohol use when there is probable cause to believe the employee to be tested is using or abusing drugs or under the influence of alcohol while at work. Such probable cause must be based on specific, articulable facts, which, taken together with rational inferences from those facts, reasonably warrant drug testing. In addition, covered employees may be randomly tested for drug abuse during working hours under any of the following conditions:
A. Upon return to duty after participation in a drug abuse rehabilitation program regardless of the duration of the program, the employee shall be required to undergo six (6) urine tests within the two year period starting with the date of return to duty.
B. Following any critical incident in which an employee was a party.
(c) Substance Testing.
(1) Drug testing procedures. All Drug Screening tests shall be conducted by laboratories certified by the Department of Health and Human Services (DHHS) or certified by a DHHS recognized certification program. No test shall be considered positive until it has been confirmed by a gas chromatography/mass spectrometry full scan test or equivalent. The procedures utilized by the employer and testing laboratory shall include an evidentiary chain of custody control. All samples collected shall be contained in three (3) separate containers for use in the prescribed testing procedures. All procedures shall be outlined in writing and this outline shall be followed in all situations arising under this article.
(2) Alcohol testing procedures. Alcohol testing shall be done in accordance with the law of the State of Ohio to detect drivers operating a motor vehicle under the influence. A positive result shall be .08% and shall entitle the employer to proceed with sanctions as set forth in this section.
(3) Urine samples. Each step in the collecting and processing of the urine specimens shall be documented to establish procedural integrity and the chain of evidence. Specimen samples shall be sealed, labeled and checked against the identity of the employee to ensure the results match the employee tested. Samples shall be stored in a secure and refrigerated atmosphere until tested or delivered to the testing lab representative.
(4) Testing procedure. Testing of samples will only be conducted by National Institute of Drug abuse (NIDA) certified laboratories. The testing or processing phase shall consist of a two-step procedure:
A. Initial Screening Step.
B. Confirmation Step.
The urine sample is first tested using a screening procedure. A specimen testing positive will undergo an additional confirmatory test. An initial positive report will not be considered positive, rather it will be classified as confirmation pending. Where a positive report is received, urine specimens shall be maintained under secure storage for a period of not less than one (1) year. Any sample which has been adulterated or is shown to be a substance other than urine shall be reported as such. All test results shall be evaluated by suitably trained medical or scientific personnel prior to being reported. All unconfirmed positive test records shall be destroyed by the laboratory. Test results shall be treated with the same confidentiality as all medical records under the laws of the State of Ohio.
(5) Confirmatory testing.
A. If a drug screening test is positive, a confirmatory test shall be conducted utilizing the fluid from no more than two (2) of the three (3) containers collected in the manner prescribed above.
B. In the event the second test confirms the results of the first test, the employer may proceed with the sanctions as set forth in this item.
C. In the event that the second test contradicts the result of the first test, the employer may request a third test in accordance with the procedures prescribed above. The results of this test, if positive, shall allow the employer to proceed with sanctions as set forth in this item. If the results are negative, no sanctions shall be imposed.
D. In the event that any two (2) test results are positive, the employee is entitled to have the sample in the third container tested in the manner prescribed above at the employee's expense. The results of this test, whether positive or negative, shall be determinative.
(6) Payment of Testing Costs. Costs of all drug screening testing and confirmation tests shall be borne by the employer except that any test initiated at the request of the employee shall be at the employee's expense.
(d) Test Results. The results of the testing shall be delivered to the employer and the employee tested. An employee whose confirmation result is positive shall have the right to request a certified copy of the testing results in which the vendor shall affirm that the test results were obtained using the approved protocol methods. The employee shall provide a signed release for disclosure of the testing results. A representative for the bargaining unit shall have a right of access to the results upon request to the employer with the employee's consent.
(e) Disciplinary Action.
(1) If random testing required by this item has produced a positive result, and this positive result is the first positive result involving this employee, the employee shall be referred to rehabilitation and detoxification programs as appropriate, in lieu of discipline. If the other types of testing required by this section have produced a positive result, the employer may take disciplinary action for the act that caused the employer to require the test as appropriate and for just cause, and/or require the employee to participate in any rehabilitation or detoxification program that is covered by the employee's health insurance. An employee shall be allowed to use sick time, compensatory days, vacation leave, and personal leave days for a period of the rehabilitation or detoxification program. If no such leave credits are available the employee shall be placed on medical leave of absence without pay for the period of the rehabilitation or detoxification program.
(2) Upon completion of such program, and upon demonstrating that the employee is no longer abusing a substance, the employee may be returned to his former position. Such employee may be subject to random retesting upon his return to work for a period of two (2) years from the date of his return to work. Any employee in a rehabilitation or detoxification program in accordance with this item will not lose any seniority or benefits, should it be necessary for the employee to be placed on medical leave of absence without pay for a period not to exceed ninety (90) days.
(3) Refusal to submit to a drug test, or adulteration of, or switching a urine sample, may be independent grounds for discipline.
(f) Voluntary Participation in a Dependency Program.
(1) An employee may of his own volition, even if not ordered to do so, undergo a drug and/or alcohol screening test if he is involved in an on duty incident or accident involving bodily injury, extensive property damage, or death. Testing done under these circumstances will be treated in the same manner as if the employee had been ordered to undergo screening.
(2) Employees who may be drug or alcohol dependent are encouraged to voluntarily seek professional assistance through a treatment program. Voluntary assistance should be sought before the drug abuse affects job performance and/or endangers fellow employees or members of the public.
(g) Return to Work.
(1) Should permission to return to duty following rehabilitative treatment become an issue, the employee shall be required to actively continue in a recognized abuse program monitored by the care provider and/or a qualified medical professional and shall be required to undergo six (6) urine tests within the two (2) year period starting from the date of return to duty.
(2) If the employee refuses to undergo rehabilitation or detoxification; if he tests positive during a re-testing within two (2) years after his return to work from such a program; or if an employee who returns to duty following rehabilitative treatment is, within two (2) years found to be in violation of this policy; or if an employee is found to be in violation of this policy for a third time; he/she may be terminated. The right to contest the discipline shall be limited to due process and not the level of discipline imposed.
(3) Drug abuse, or participation in any drug abuse rehabilitation program will not preclude disciplinary action against members for any law or rule violation which may be connected in part with drug abuse, even if a rehabilitation program is voluntarily undertaken.
(h) Testing Labs. A list of two testing laboratories shall be maintained by the employer. These laboratories shall conduct any testing directed by the employer.
(i) Confidentiality. All test results and actions taken under or pursuant to this section shall be kept confidential subject to the requirements of State and Federal laws.
(Ord. 1996-38. Passed 8-8-96.)