(a) Purpose. The purpose of this policy is to comply with all applicable Federal regulations adopted by the Federal Highway Administration (FHWA) that mandate alcohol and drug testing and to establish testing standards for covered, safety-sensitive employees who operate commercial motor vehicles. This policy supplements, but does not replace or change, all existing policies and agreements concerning the use of, and testing for, alcohol and drugs, unless otherwise required by law or regulation.
(1) The Director of Personnel is the person designated to:
A. Answer questions about these materials and the implementation of the FHWA regulations;
B. Receive confidential information regarding alcohol and drug testing results; and
C. Receive confidential information from substance abuse professionals.
(2) The public expects City services to be delivered in the safest and most conscientious manner possible. Involvement with drugs and alcohol can adversely affect job performance and employee safety. The presence of drugs or alcohol on the job, and the influence of these substances on employees during working hours, are inconsistent with the objective of maintaining a drug and alcohol-free workplace.
(3) Employees who think they may have an alcohol or drug usage problem are urged to voluntarily seek assistance from the Employee Assistance Program. While the City will be supportive of those who seek help voluntarily, the City Manager will be equally firm in identifying and disciplining those who are, or continue to be, substance abusers and who do not seek help.
(b) Covered Employees. This policy applies to all employees who operate a commercial motor vehicle to carry out their job duties or who are required as a condition of employment to possess and maintain a commercial driver's license (CDL). Participation in the Alcohol and Drug Testing Program is required for these employees and is considered to be a condition of employment. For purposes of this section, "commercial motor vehicle" means a vehicle that:
(1) Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;
(2) Has a gross vehicle weight rating of 26,001 or more pounds;
(3) Is designed to transport sixteen or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of materials that are found to be hazardous for the purposes of the Hazardous Materials Transportation Act and that require the motor vehicle to be placarded under the Hazardous Materials Regulations.
(c) Safety-Sensitive Functions. The FHWA alcohol and drug rules apply to employees when performing safety-sensitive functions. "Safety-sensitive functions" under these rules include any of the following:.
(1) All time waiting to be dispatched;
(2) All time inspecting, servicing or conditioning any commercial motor vehicle;
(3) All time driving a commercial motor vehicle;
(4) All time spent loading or unloading a vehicle, supervising or assisting in the loading or unloading of a vehicle, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or giving or receiving receipts for shipments loaded or unloaded;
(5) All time spent dealing with a commercial motor vehicle accident;
(6) All time spent repairing, obtaining assistance for, or remaining in attendance upon, a disabled commercial motor vehicle; and
(7) All other time spent in or on any commercial motor vehicle.
(d) Prohibited Conduct. The FHWA regulations include the following rules on prohibited conduct:
(1) No employee shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater (see subsection (i) hereof for provisions relating to alcohol concentrations between 0.02 and 0.04);
(2) No employee shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol, unless the alcohol is manifested and transported as part of a shipment;
(3) No employee shall use alcohol while performing safety-sensitive functions:
(4) No employee shall perform safety-sensitive functions within four hours after using alcohol;
(5) No employee shall use alcohol for eight hours following an accident, or until the employee undergoes a post-accident alcohol test, whichever occurs first;
(6) No employee shall refuse to submit to a post-accident alcohol or drug test, a random alcohol or drug test, a reasonable suspicion alcohol or drug test or a follow-up alcohol or drug test; and
(7) No employee shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the employee uses any drug, except when the use is pursuant to the instructions of a physician who has advised the employee that the substance does not adversely affect the employee's ability to safely operate a commercial motor vehicle.
(e) Supervisor Responsibilities. Supervisors must not permit an employee to perform safety-sensitive functions if they have actual knowledge that the employee:
(1) Has a blood alcohol concentration of 0.02 or greater;
(2) Has alcohol in his or her possession;
(3) Is using alcohol on the job;
(4) Has used alcohol within the past four hours;
(5) Refused to submit to an alcohol or drug test required by this policy;
(6) Has used a controlled substance; or
(7) Tested positive for drugs.
(f) Alcohol and Drug Testing.
(1) In addition to alcohol, the substances for which the employee will be tested include, but are not limited to, the following: marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP).
(2) Testing for alcohol concentration will be through the evidential breath testing procedure. Testing for controlled substances will be accomplished through urine sampling The employee may be required to sign an authorization form permitting the medical facility to conduct the test and release the results to the Medical Review Officer and the City Manager. An employee is subject to FHWA mandatory testing for alcohol and drugs under the following circumstances:
A. Pre-employment/pre-duty testing. An applicant or newly hired employee must be tested for alcohol and drugs before the first time the driver performs any safety-sensitive function. In order to return to duty involving safety-sensitive functions, the driver must test with an alcohol concentration level of less than 0.02 and/or test negative for controlled substance use.
B. Post-accident testing.
1. An employee must be tested for alcohol and drugs as soon as practicable following an accident involving a commercial motor vehicle, if:
a. The employee was performing a safety-sensitive function with respect to the vehicle and the accident resulted in the loss of a human life (whether or not the driver caused the accident); or
b. The employee receives a citation under State or local law for a moving violation arising out of the accident.
2. In the case of post-accident testing for drugs, the driver must immediately notify the Service Director of the accident and remain readily available for testing. The American Truckers Association shall administer the tests as soon as possible, but not more than eight hours after the accident in the case of alcohol testing and not more than thirty-two hours after the accident in the case of controlled substance testing. The results of a breath or blood test for the use of alcohol, or of a urine test for the use of controlled substances, conducted by Federal, State or local officials having independent authority for the test, shall be deemed to meet the requirements of this policy, and the City Manager may choose to use this type of test instead of performing one of his or her own.
C. Random testing. Employees will be randomly selected for unannounced alcohol and drug testing. The minimum annual percentage rate for random alcohol testing will be twenty-five percent of the average number of driver positions. The minimum annual percentage for random drug testing will be fifty percent of the average number of driver positions. Employees will be selected on a random basis, which assures that all drivers have an equal chance of being tested. The dates for testing will be spread out throughout the calendar year and will be unannounced. A driver shall only be tested during, just prior to, or just after, the performance of safety-sensitive functions.
D. Reasonable suspicion testing. An employee must be tested for alcohol or drugs if there is reasonable suspicion that a driver has violated the rules on the use of alcohol or drugs. Reasonable suspicion will be based on specific, current and describable observations concerning the appearance, behavior, speech or body odors of the employee made during, just preceding, or just after, the period of the work day when the employee is performing a safety-sensitive function. The observation and determination that a reasonable suspicion exists will be made by a supervisor, manager or other City official trained in detecting the symptoms of alcohol and drug use. The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver.
E. Return-to-duty testing. An employee must be tested for alcohol and drugs before returning to any safety-sensitive duties following a violation of the FHWA alcohol or drug rules;
F. Follow-up testing. An employee who has been identified by a substance abuse professional as needing assistance in resolving problems with alcohol or drugs and who has returned to duty is subject to a minimum of six follow-up alcohol or drug tests over the first twelve months following the return to duty. The substance abuse professional may require the employee to undergo additional alcohol or drug testing for up to sixty months.
(3) All alcohol and drug testing done under the FHWA rules will comply with 49 CFR, Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs. These procedures require separate screening and confirmation tests and a member of other procedures which are intended to protect the driver and the integrity of the testing processes, to safeguard the validity of the test results and to ensure that those results are attributed to the correct driver.
(g) Refusal to Submit to Alcohol or Drug Test. The FHWA rules mandate that an employee submit to the alcohol and drug tests required by the FHWA rules. A refusal to submit is itself a violation of the FHWA rules.
(1) A refusal to submit to an alcohol or drug test includes any of the following conduct:
A. Failure to provide adequate breath for alcohol testing, without a valid medical explanation, after the driver has received notice of the requirement for alcohol testing under the FHWA rules;
B. Failure to provide adequate urine for drug testing, without a valid medical explanation, after the driver has received notice of the requirement for drug testing under the FHWA rules;
C. Engaging in conduct that clearly obstructs the testing process; and
D. Failure to remain readily available for testing following an accident involving a commercial motor vehicle.
(2) A refusal to take an alcohol or drug test required by the FHWA rules will have the following minimum consequences:
A. An applicant who refuses a pre-employment/pre-duty test will not be hired;
B. An employee who refuses a return-to-duty test will not be returned to duty; and
C. An employee who refuses a post-accident, random, reasonable suspicion or follow-up test will be treated as if he or she had a positive test result, as described in subsection (h) hereof.
(3) An employee who refuses to comply with a request for testing, who provides false information in connection with a test, or who attempts to falsify test results through tampering, contamination, adulteration or substitution, shall be removed from duty immediately and subject to discipline up to and including dismissal. Refusal can include an inability to provide a specimen or breath sample without a valid medical explanation, as well as a verbal declaration, obstructive behavior or physical absence resulting in the inability to conduct the test.
(h) Violations of FHWA Rules. Employees who violate the FHWA rules on alcohol or drugs will:
(1) Be removed from all safety-sensitive functions and placed on an unpaid leave of absence, unless otherwise determined by the Director of Personnel;
(2) Be referred to and evaluated by a substance abuse professional, who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol or drugs;
(3) Not be returned to work unless the driver passes a return-to-duty alcohol test (if the violation involved alcohol) or a return-to-duty drug test (if the violation involved drugs) and has properly followed any rehabilitation program prescribed by the substance abuse professional; and
(4) Be subject to FHWA-mandated unannounced follow-up drug and alcohol testing, including a minimum, of six tests during the first twelve months following the driver's return to work.
These are the minimum consequences mandated by the FHWA rules. The City Manager may take additional disciplinary action, up to and including dismissal, for conduct which violates work rules or policies.
(i) Alcohol Test Results Between 0.02 and 0.04. A positive alcohol test is defined by the FHWA rules as a test finding an alcohol concentration of 0.04 or greater. However, if a driver's alcohol test finding is between 0.02 and 0.04, the driver must be removed from duty until the driver's next regularly scheduled duty period, but not less than twenty-four hours following the test.
(j) Employee Requested Confirmation Testing.
(1) An employee who questions the results of a required drug test may request that an additional test be conducted at a different DHHS-certified laboratory. The test will be conducted on the split sample that was provided at the same time as the original sample. The cost of the second test will be borne by the employee, unless the second test invalidates the first.
(2) The method of collecting, storing and testing the split sample is as prescribed by the procedures in 49 CFR, Part 40. The employee's request for a split sample test must be made to the designated medical review officer within seventy-two hours of notice of the initial test result. Requests after seventy-two hours will be accepted only if the delay was due to documentable facts that were beyond the control of the employee.
(k) Confidentiality. Laboratory reports or test results shall not appear in an employee's general personnel folder. Information of this nature will be secured in a separate confidential folder in the Personnel Department. The reports or test results may be disclosed to management on a need-to-know basis and to the tested employee upon request. The Law Director may also disclose confidential information pertaining to an employee to the decision-makers in a lawsuit, grievance or other proceeding initiated by or on behalf of the employee, and arising from the results of an alcohol and/or controlled substance test administered under FHWA rules, or from the City Manager's determination that the employee engaged in prohibited conduct.
(l) FHWA Mandated Alcohol/Drug Evaluation/Treatment.
(1) Employees who test positive for the presence of alcohol or illegal drugs will be referred to, and evaluated by, a substance abuse professional (SAP). A substance abuse professional is a licensed or certified physician, psychologist, social worker, employee assistance professional or addiction counselor with knowledge of, and clinical experience in, the diagnosis and treatment of drug and alcohol-related disorders. The substance abuse professional will evaluate each employee to determine what assistance, if any, the employee needs to resolve problems associated with prohibited substance abuse or misuse of alcohol.
(2) Under certain circumstances, including positive alcohol or drug tests, employees may be required to undergo treatment for substance abuse. If an employee is not discharged, but is allowed to return to duty after such evaluation and/or treatment, he or she must properly follow the rehabilitation program prescribed by the substance abuse professional, must pass the return to duty alcohol and drug test(s) and must be subject to unannounced follow-up tests for a period of one to five years, as determined by the substance abuse professional or as required by Federal law. Any employee who refuses treatment when required, or who fails to comply with the individualized treatment plan prescribed by the substance abuse professional for treatment, aftercare or return to duty, shall be subject to disciplinary action, up to and including discharge.
(m) Additional Alcohol and Drug Information.
(1) The use of alcohol or drugs can have negative effects on an individual's health, work and personal life.
(2) The National Institute on Alcohol Abuse and Alcoholism (NIAAA) reported in 1987 that two of every three adults in the United States drink, but ten percent of those drinkers consume half of the nation's beer, wine and liquor. According to the National Institute on Drug Abuse (NIDA), an estimated seventeen million U.S. adults are alcoholics. The cost to society from alcohol misuse is enormous. The potential effects include lost lives, personal injuries, property damage; business losses (lost productivity, absenteeism, increased health care costs, etc.) and environmental damage.
(3) In 1987, the NIAAA estimated the economic costs to society of alcohol misuse to be nearly $117 billion a year, including $18 billion from premature deaths, $66 billion in lost productivity and $13 billion for rehabilitation.
(4) Accident statistics indicate that nearly half of the fatally injured noncommercial motor vehicle drivers had a measurable amount of alcohol in their blood compared with about fifteen percent of fatally injured drivers of medium and heavy trucks. For those truck drivers who had been drinking before an accident, the highest accident rate was among those consuming the most alcohol. Drivers of heavy and medium trucks with measurable alcohol concentrations are involved in about 750 fatal crashes annually, along with another 7,700 crashes resulting in personal injuries and 4,750 crashes involving only property damage.
(5) In 1990, the National Transportation Safety Board (NTSB) published the results of a study of alcohol and other drugs used by CMV operators in fatal-to-the-driver, heavy truck accidents. Thirteen percent of the fatally injured drivers tested positive for alcohol. Another twenty percent of the drivers tested positive for drugs.
(6) Additional information concerning the effects of alcohol and drug use, and the signs and symptoms of an alcohol or drug problem, will be periodically provided to covered employees and their supervisors.
(7) A pamphlet on the designated Employee Assistance Program will be provided to covered employees subject to this policy and their supervisors.
(8) Copies of the FHWA rules on alcohol and drug use and testing, 49 CFR, Part 382, and the Department of Transportation rule on procedures for Transportation Workplace Drug and Alcohol Testing Programs, 49 CFR, Part 40, are available for review in the Personnel Department.
(9) Employees are urged to request assistance with any drug or alcohol problem, before disciplinary action is necessary. If an employee advises the City Manager of a drug or alcohol problem, the employee will be urged to receive counseling and, if appropriate and necessary, will be permitted to take accrued paid sick leave or vacation to receive the recommended treatment. If an employee has exhausted accrued paid sick leave and vacation, he or she may apply for an unpaid personal leave of absence for the period of time necessary to receive the recommended treatment.
(10) Alcohol and drug dependencies are treatable. Employees covered by the City-sponsored health insurance program have limited coverage for treatment of alcoholism and drug dependency. Any costs associated with treatment that are not covered by insurance will be the responsibility of the employee.
(11) Employees who suspect that another employee is in violation of the FHWA alcohol and drug rules should immediately report their suspicion, and the basis for it, to their supervisor or to the Director of Personnel, so that appropriate, action may be taken and a potentially unsafe situation avoided.
(Ord. 07-17. Passed 5-21-07.)