All covered employees shall be subject to substance abuse testing of either urine, breath, and/or blood under the following circumstances:
(a) Pre-employment or Pre-promotion Testing. All applicants who are selected for appointment or promotion to a position whose incumbent would be a covered employee shall be notified by the Administrative Assistant upon that selection that a test for drug, alcohol and controlled substance use must precede their appointment or promotion into covered employment. An applicant who is tentatively selected for appointment or promotion by the appointing authority and who then refuses, declines, or fails to submit to a drug, alcohol and controlled substance test upon notice to do so by the Administrative Assistant shall be deemed to be medically unqualified for covered employment and shall not be appointed or promoted into covered employment. An applicant, who is selected for appointment or promotion and is tested for drug, alcohol and controlled substance use prior to appointment or promotion to covered employment, must receive a satisfactory test result before beginning employment in the new position.
(b) Reasonable Suspicion Testing.
(1) Covered employees shall be subject to a fitness for duty evaluation, which shall include appropriate urine, blood, and/or breath testing when a supervisor has reasonable suspicion that controlled substance use, drug abuse or alcohol use is adversely affecting a covered employee's performance. A reasonable suspicion referral for 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 result from any inquiry by the supervisor or from a credible source which would induce a reasonably intelligent and prudent person to reasonably believe the covered employee is under the influence of or using controlled substances, drugs, or alcohol. Reasonable suspicion determinations leading to a substance abuse test shall be made by a covered employee's supervisor who shall be reasonably trained in the detection of the signs and symptoms of substance abuse or who is reasonably familiar with the same, and who reasonably concludes 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. Adequate documentation of unsatisfactory work performance or on- the-job behavior for unexplained reasons;
B. Physical signs and symptoms consistent with substance use;
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; and
E. Fights (to mean physical contact), assault, menacing, stalking, or threatening behavior, and flagrant disregard or violation of established safety, security or other operating procedures.
(2) Reasonable suspicion shall not be based solely upon a covered employee's possession of alcohol, particularly unopened containers of alcohol or possession of alcohol by trained medical personnel for purposes of medical treatment. Possession of alcohol with observations concerning the employee's appearance, speech, or abnormal conduct are necessary. Possession of a controlled substance shall be reasonable suspicion for requiring a controlled substance test. Possession of drugs shall not be grounds for a reasonable suspicion test if the covered employee can:
A. Satisfactorily explain to his or her supervisor the reasons for possession of the drug;
B. Identify the physician who prescribed the drug for the covered employee (this information can be verified to the supervisor by the pharmacy filling the prescription or the prescribing physician); and
C. The use of drugs has not affected or impaired the employee's work performance.
(3) The fact a satisfactory explanation is provided shall not negate reasonable suspicion if the covered employee's mental or physical abilities appear to be affected or impaired by the drug.
(4) Observations leading to a reasonable suspicion substance abuse test shall be reduced to writing or otherwise preserved within a reasonable time by the supervisor making the decision to require such a test.
(5) Once a covered employee has been notified that a reasonable suspicion test will be conducted, the test shall take place within two (2) hours of this notice. If the test is not conducted within two hours, a written record shall be made stating the reasons the test was not promptly administered. If the test has not been conducted within eight (8) hours following the notification, no test shall be administered and a record shall be made of why the test was not administered with eight (8) hours.
(c) Post-Accident Testing. A covered employee (as well as any employee operating a covered vehicle despite not having a commercial driver's license) shall be subject to urine, blood or breath testing when a covered vehicle is involved in a collision or when control over a covered vehicle is unexplainably (for non-mechanical reasons) lost. By way of illustration, but not limitation, an unexplained loss of control of a covered vehicle or a collision between a covered vehicle and a person that results in a fatality or injuries requiring medical attention; a collision between a covered vehicle and another vehicle or train resulting in material damage, a collision between a covered vehicle and a stationary or moving object resulting in material damage shall be grounds for a post accident substance abuse test.
Material damage for purposes of this subsection means damage estimated to be equal to or greater than four hundred dollars ($400.00).
The determination of whether material damage has occurred shall be made by a supervisor other than one who was within the covered vehicle when the triggering event occurred or witnessed that event.
The filing of criminal or traffic charges as a result of a triggering event shall not be necessary to require a covered employee or a noncovered employee operating a covered vehicle to submit to a post accident test. Reasonable suspicion that the operator of a covered vehicle involved in a triggering event has used drugs, alcohol or controlled substances is immaterial to the requirement herein of a post-accident test.
Post-accident testing shall not be permitted to delay the administration of necessary medical attention to injured covered employees. Once a covered employee has been notified that a post-accident test will be conducted, it shall take place within two (2) hours of this notice. If the test is not conducted within two (2) hours, a written record shall be made stating the reasons the test was not promptly administered. If the test has not been conducted within eight (8) hours following the notification, no test shall be administered and a record shall be made of why the test was not administered within eight (8) hours.
Covered employees or non-covered employees who operate a covered vehicle that is involved in an accident resulting in material damage or in an unexplained loss of control and who are so seriously injured that a substance abuse test cannot be obtained within the requisite two (2) hour period shall execute a medical consent form allowing an analysis of any adequate substitute bodily fluids taken within two hours of the triggering event for the purposes of medical treatment to be used for analysis for the purpose of substance abuse testing (assuming scientifically reliable results can be obtained). Failure to grant such consent when fluids capable of analysis exist shall cause the employee to be deemed medically unqualified for duty such that a substance abuse test is required before the covered employee may return to work.
The Village may, but shall not be required to, substitute, accept and rely upon the result of any blood, urine, or breath test conducted pursuant to Ohio's implied consent statute as an accurate and reliable substance abuse test for purposes of this chapter provided the test is an accurate and reliable means for testing for alcohol, drug and controlled substance abuse.
A covered employee or a non-covered employee who operates a covered vehicle involved in an accident, unless injured so seriously that immediate medical attention is required, must make his or her whereabouts known to his immediate supervisor for purposes of remaining available for a possible substance abuse test for the balance of the work day or eight (8) hours after the accident, whichever is later. A covered employee subject to test hereunder who cannot be located following an accident for the balance of the work day or for eight (8) hours after the accident shall be deemed medically unqualified for duty and shall not be permitted to return to work until he or she submits to a substance abuse test.
(d) Random and Unannounced Testing. Covered employees shall be subjected to random, unannounced urine, blood and/or breath testing for the purpose of detecting substance abuse. The process used for selection of a covered employee(s) to take a substance abuse test shall be determined by the Village, provided, however, that the selection process must yield a random result so that no predictable pattern of identifying the covered employee to be tested will exist, and provided further, that random testing shall be conducted on an intermittent schedule so that predictable time frames when tests will be administered cannot be ascertained.
A covered employee randomly selected for an unannounced substance abuse test shall immediately proceed to the designated sampling location to provide a test sample. A covered employee who refuses or fails to travel to the collection site or who refuses or fails to provide a test sample for substance abuse test analysis within a reasonable time after being randomly selected for test shall be deemed medically unqualified for employment and shall be relieved of duty without pay until a sample is provided. Covered employees selected for testing who are not at work when selected shall be passed over if they have been tested within the previous three hundred and sixty-five (365) days, and otherwise shall be instructed to report testing immediately upon their return to work.
The number of random unannounced substance abuse tests conducted annually may be determined in accordance with the rules of any consortium which the Village has entered into.
(e) Return-to-Duty Testing. All covered employees who previously received an unsatisfactory result on a substance abuse test, including any second or confirming test if one was conducted, must undergo return-to-duty substance abuse testing before returning to work and be evaluated, and treated if necessary, for substance abuse, and be released to duty by a competent medical practitioner before returning to work. Covered employees who are subject to return-to-duty testing shall also be subject to six (6) or more random and unannounced substance abuse tests, to be conducted when the covered employee is at work, during the first twelve (12) months following his or her re-entry into employment separate and apart from their exposure to random and unannounced testing. A successful return-to-duty test for alcohol shall be a result of 0.02 or less. A negative screen for drugs and controlled substances shall be considered a successful test for return-to-duty purposes.
(f) Employee Requested Testing. Any employee who questions the results of a substance abuse test required or administered pursuant to subsections (a) through (e) hereof may request that a confirming test in addition to any 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, the testing shall be conducted with the same specimen (on a split sample if such exists) that was originally submitted to the testing Village's laboratory. All costs for testing requested by an employee are to be paid for by the employee.
(Ord. 1997-22. Passed 4-9-97.)
(g) Refusal to Submit to Required Test. No driver shall refuse to submit to a post-accident, random, reasonable suspicion or follow-up alcohol or controlled substances test. No driver who refuses to submit to such tests shall perform or continue to perform safety-sensitive functions.
(Ord. 2010-27. Passed 12-8-10.)