(A) Findings. In addition to the requirements of the Drug Free Work Place Act of 1988, the city has a compelling obligation to protect the lives of its citizens and provide a safe, efficient working environment for its employees. Because a single drug-related lapse by any covered employee could have irreversible and calamitous consequences, the interest of public safety outweighs any perceived intrusion on a covered employee’s right to privacy. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.” Any drug test is acknowledged to constitute a search, and therefore must be completely justified and necessary to be deemed reasonable under the Fourth Amendment. The interest of individuals subjected to a drug test shall be balanced against the right of the city to a drug free work place.
(B) General. The primary objective of this drug testing program shall be ensuring that public safety is not endangered as a result of city employees under the influence of drugs or alcohol on the job. This policy is intended to reflect a high degree of concern for employee privacy interest and is tailored to assure minimal intrusion. The city recognizes its obligation to provide a safe, healthful, and efficient working environment for its employees. Furthermore, all city employees have an obligation to the citizens of Raton to provide governmental services in the safest, most efficient, and most courteous manner possible. The city recognizes that its ability to provide vital services to the citizens of Raton depends upon the physical and psychological health and well-being of all city employees. Being under the influence of drugs or alcohol on the job, as well as the use of drugs or alcohol off the job, may severely impair an employee’s ability to perform the job in a manner consistent with obligations to the city, fellow employees, and the public. The possession, use, transfer, distribution, or sale of illegal drugs and the use of alcohol during working hours poses unacceptable risks to safe and efficient performance of job duties, places both employees and city residents in danger, and undermines public confidence in city government. The city hereby initiates an employee referral program (E.R.P.) to obtain help for employees who seek counseling or other assistance for problems with drug or alcohol use or other personal problems.
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ALCOHOL OR DRUG USE PROBLEM. Use of drugs or alcohol by any city employee whether on or off the job, to a degree that significantly impairs the employee’s ability to safely and efficiently perform his or her job duties.
CITY EMPLOYEE. Any person employed by the city, including the City Manager and other supervisors, but excluding elected officials and individuals who by statute or ordinance serve at the pleasure of elected officials.
ILLEGAL DRUGS. Means:
(a) Any drug which is not legally obtainable;
(b) Any drug which is legally obtainable, but which has not been legally obtained; or
(c) Any drug which has been legally obtained, but which is being used for other than the purpose for which it was prescribed.
LEGAL DRUGS. Prescribed drugs and over-the-counter drugs which are being used for the purposes for which they were prescribed or manufactured.
REASONABLE SUSPICION THAT AN EMPLOYEE HAS AN ALCOHOL OR DRUG USE PROBLEM. Any objectively identifiable and unexplained deterioration in the quality or quantity of an employee’s normal behavior or normal work performance. Objective criteria include, but are not limited to, chronic tardiness, excessive absenteeism, an excessive number of on-the-job accidents, disruptive conduct, deterioration in productivity, deterioration in work quality, excessive health problems, failure to meet work schedules, unexplained carelessness in personal appearance or hygiene, and drastic mood swings.
REASONABLE SUSPICION THAT AN EMPLOYEE IS UNDER THE INFLUENCE OF DRUGS OR ALCOHOL. In the judgment of the employee’s supervisor, the employee exhibits 1 or more of the objective symptoms of being under the influence, enumerated in this section below.
UNDER THE INFLUENCE. The employee is affected by use of a drug or alcohol in an objectively detectable manner. For purposes of this policy, objective criteria include, but are not limited to, loss of physical coordination, slurred speech, erratic behavior (e.g. unusual belligerence or excitability), impaired judgment, or a detectable odor of alcohol on an employee’s breath. In determining whether an employee’s behavior suggests that the employee is UNDER THE INFLUENCE of drugs or alcohol, due consideration will be given to the employee’s normal physical and mental characteristics. Any employee caught using alcoholic beverages or illegal drugs during working hours will be presumed to be UNDER THE INFLUENCE of drugs or alcohol irrespective of the presence or absence of other symptoms of being UNDER THE INFLUENCE.
(D) General provisions.
(1) All city employees are prohibited from using or being under the influence of alcohol or illegal drugs during working hours, and a confirmed positive test indicating either substance will subject the employee to disciplinary action up to and including termination.
(2) All city employees are prohibited from using or being under the influence of legal drugs during working hours to the extent that the use of any legal drug may affect the safe and efficient performance of the employee’s job duties or may endanger the safety of coworkers or members of the public. A city employee using a legal drug may be required by his or her supervisor to obtain a letter from the employee’s physician indicating that the employee’s continued presence on the job while using the legal drug does not pose a threat to the employee’s safety or the safety of co-employees or members of the public. An employee using a legal drug who is unable to safely and efficiently perform his or her job may be required to take sick leave, vacation time, or a leave of absence for the duration of the time the employee is using a legal drug.
(3) All city employees are prohibited from possessing, selling, transferring, or purchasing illegal drugs during working hours, while on city property or while operating city-owned vehicles or equipment. Any activity by city employees involving possession, sale, transfer, or purchase of illegal drugs will be reported to appropriate law enforcement officials.
(4) Any city employee who pleads no contest to, or is convicted of, a criminal offense involving possession, sale, transfer, or purchase of illegal drugs during working hours may be subject to disciplinary action up to and including termination from employment.
(5) Any city employee who pleads no contest to, or is convicted of, a criminal offense involving operating a motor vehicle under the influence of drugs or alcohol during working hours may be subject to disciplinary action up to and including termination from employment.
(6) The prohibition on consumption of alcohol on city property shall not apply when the consumption is in connection with city-sponsored and authorized events during nonworking hours.
(7) Refusal to submit to a drug or alcohol test, when the test is required under this policy, shall be grounds for disciplinary action up to and including termination from employment.
(8) An employee who tests positive for drug or alcohol use pursuant to a test required by this policy shall be subject to disciplinary action up to and including termination from employment.
(E) Employee referral program. The city will provide an employee referral program (E.R.P.) to obtain help for employees who suffer from an alcohol or drug use problem or other problems of a personal nature. It is the sole responsibility of each employee to seek assistance from the E.R.P. before the employee’s drug and alcohol use results in discipline or termination from employment. Once an employee violates this policy, or tests positive for illegal drugs or alcohol, the employee’s voluntary use of the E.R.P. shall not necessarily reduce the severity of disciplinary action and may, in fact, have no bearing on the determination of appropriate disciplinary action. The employee’s decision to seek prior assistance from the E.R.P. shall not be used as the basis for any disciplinary action and shall not be used against the employee in any disciplinary proceeding. Furthermore, no information voluntarily provided by the employee in seeking assistance from the E.R.P. shall be used against the employee in any disciplinary proceeding. Nothing in this policy, however, shall prohibit the use of any information obtained outside of the E.R.P. in any disciplinary proceeding.
(F) Persons to be tested.
(1) All employees covered by a written collective bargaining agreement where drug testing is addressed. Testing frequency and manner (periodic or random) shall be performed per the agreement;
(2) All employees exhibiting symptoms reasonable suspicion that the employee is under the influence of drugs or alcohol during working hours or has an alcohol or drug use problem;
(3) All city job applicants which are offered a position involving operation of city vehicles, heavy equipment, filter plant, sewer plant, Police Department, Fire Department, and the position of City Manager. Any offer of employment shall be expressly contingent upon the individual taking and passing a drug screening test;
(4) Any employee caught using drugs or alcohol during working hours;
(5) Any employee who has sustained or caused another employee to sustain a personal injury at work or has caused a work-related accident; and
(6) Random testing will be done for a 2-year period following the completion of a rehabilitation program by all employees which have tested positive for drugs or alcohol during working hours.
(G) Testing procedure.
(1) This procedure shall strike a balance between individual privacy and maintaining the integrity of the drug testing program.
(2) Prior to any existing employee being given a drug test, the supervisor shall submit their evidence for review by the City Manager. The City Manager shall make final determination as to whether a drug test is warranted based on the evidence.
(3) Prior to the drug test, the employee shall be allowed to offer explanation for their behavior or why they may test positive for drugs.
(4) Blood alcohol testing shall be done using a certified intoxilizer in the privacy of the Raton Police Department.
(5) For urinalysis testing, the employee shall remove unnecessary outer garments such as coats which might conceal items which could be used to tamper with the urine sample. The employee shall wash and dry hands prior to producing the urine sample. The sample shall be produced in the privacy of a stall after toilet water bluing agents have been placed in the toilet basin and tank. The person overseeing the urine sample production shall stand outside the stall and verify the sample contains at least 60 millimeters of urine and the sample temperature is within the proper range. The initial sample testing shall be an enzyme multiplied immunossary technique (E.M.I.T. test) or equal, and all positive tests shall be confirmed by a test equal to or exceeding accuracy of the gas chromatography/mas spectrometry (G.C.M.S. test). Proper chain of custody shall be maintained and documented prior to shipment of the sample to the laboratory to ensure that no tampering occurs. Preferably the sample shall be packaged and shipped in the presence of the employee which produced the urine sample.
(H) Discipline. All discipline shall be conducted with due process in accordance with the discipline section of this personnel policy. Employees refusing to submit to drug testing when requested shall be deemed as having tested positive. Employees refusing to test shall be allowed up to 90 days’ leave without pay to complete a drug rehabilitation program of their choice at their own expense. Refusal to test or enter a rehabilitation program shall result in termination. Employees testing positive .04 or higher blood alcohol shall be suspended for 5 working days and encouraged to consider a rehabilitation program. Any trace of illegal drugs in the urine sample shall result in a 30 days’ suspension and up to 90 days without pay to participate in a rehabilitation program of the employee’s choice at their own expense. Employees with at least 1 confirmed positive test and/or those completing a rehabilitation program shall be subject to random testing for 2 years following the initial positive test. A second confirmed positive test during this period shall result in termination.
(I) Conflicts with existing policies. In case of any conflict with present or future internal drug and alcohol regulations in the Raton Police Department or Raton Fire Department, the stricter of the 2 drug policies shall govern.
(1981 Code, § 20-32) (Ord. 823, passed 1-22-1991) Penalty, see § 33.99