(a) Introduction. The City of South Charleston has always been committed to a safe, healthy, lawful and productive workplace and work force. Because alcohol abuse and illegal drug use are inconsistent with that commitment, the City has adopted the following policy. This policy is effective immediately and applies to all employees.
(b) Employee Assistance. Employees who voluntarily seek help for drug or alcohol problems, before becoming subject to discipline for violating this policy, will be offered confidential assistance in contacting counseling and treatment programs and provided information about any available insurance coverage or benefits.
For an employee to be covered under this section, he/she must meet the following requirements:
(1) An employee must notify his/her Department Head of his/her desire to seek help at least twenty-four hours before becoming subject to a random drug test. An employee who notifies his/her Department Head of the problem on the day of testing is still required to submit to the drug test.
(2) After the Department Head is notified, the Department Head must contact the Insurance Plan Administrator immediately. The Insurance Plan Administrator will be responsible for coordinating all treatment from this point.
(3) An employee must enter a treatment program within ten days after the Insurance Plan Administrator is notified.
(4) An employee must enter a treatment program approved by the City.
(5) Depending on the nature of his/her problem, his/her job duties and work history, the employee will be placed on unpaid leave of absence, transferred to a non-safety-sensitive job or otherwise accommodated as may be required by law. The Department Head will make this determination. If placed on an unpaid leave of absence, the employee may elect to use his/her sick and/or vacation leave first.
(6) The length of time an employee will be permitted to remain in a treatment program will depend upon the individual employee. The treatment facility and Department Head will make this determination.
(7) Each month, the employee must have his/her treatment facility provide the Chief of Police with a progress report.
(8) An employee must comply with other appropriate conditions of continued employment including, but not limited to, agreeing to take and pass drug and alcohol tests at any time requested by the City during the next twelve months.
(9) The City will only pay for treatment once.
(10) If an employee is given the option of being transferred to a non-safety sensitive position instead of being placed on unpaid leave of absence, the employee will still be subject to random drug testing.
(c) Prohibitions. At all times they are working, supposed to be working, operating City vehicles or equipment, or present on City property or within the City limits while working, employees are prohibited from:
(1) Using, possessing, manufacturing, dispensing, selling or buying illegal drugs;
(2) Having an illegal drug (or its metabolites) in their system;
(3) Being under the influence of alcohol, or otherwise unfit to work or drive safely, or
(4) Consuming alcoholic beverages or possessing (open containers of ) alcoholic beverages.
(d) Employee Testing. Employees will be subject to drug and/or alcohol testing in any of the following situations:
(1) Employees who are reasonably suspected of using or possessing illegal drugs or alcohol in violation of this or other City policies, or of being impaired by drugs or alcohol while they are working, supposed to be working, operating City vehicles or equipment, or present on City property or client premises; or
(2) Employees who appear to have caused or contributed to on-the-job injuries or on-the-job accidents; or
(3) Employees whose accidents or injuries to themselves or others appear to have been caused by or contributed to by drug or alcohol use; or
(4) For those employees whose job responsibility involves public safety or the safety of others, or for those employees required by the City or by federal law to possess a commercial driver’s license, employees will also be subject to random testing, pre-employment testing, return to duty testing, and follow-up testing, pursuant to Title 49 of the Code of Federal Regulations.
Employees who test positive for illegal drug use, or who refuse to cooperate in or tamper with a required drug/alcohol test will be terminated. Employees who test positive for alcohol will, at the City’s discretion, be transferred to non-safety sensitive positions, placed on unpaid leaves of absence, disciplined or terminated.
(e) Testing Procedures.
(1) With respect to all drug testing under this policy:
A. Specimens shall be collected at facilities chosen by the City of South Charleston and tested by laboratories chosen by the City.
B. Urine specimens shall be sealed and labeled in the presence of the urine donor.
C. A chain of custody shall be established from the point of collection, through testing, to storage.
D. Tests shall be performed by a laboratory certified by the U.S. Department of Health and Human Services to do drug testing and which holds all legally necessary licenses.
E. Persons with positive lab results shall have an opportunity to promptly establish to the satisfaction of the Medical Review Officer that their tests results were not caused by illegal drug use.
F. Employees with positive results for illegal drugs may arrange to have a portion of their original specimen tested by another DHHS- certified lab at their expense. (The presence, in any concentration, of illegal drugs or their metabolites, in such retested specimens shall constitute a positive re-testing).
(2) With respect to all alcohol tests under this policy:
A. Breath specimens shall be tested by trained persons using a device capable of producing printed test results which conforms to the model specifications of the National Highway Traffic Safety Administration for evidential breath testing;
B. If an initial breath test results in an alcohol concentration of .04% or more, a confirmation breath test shall be required approximately 15-20 minutes later;
C. The result of the confirmation test shall be the test result for purposes of this policy; and
D. Absent the prompt submission of acceptable medical documentation that an employee is unable to provide a sufficient breath specimen due to a medical condition, an employee’s failure to provide such a specimen shall constitute a refusal to cooperate.
(f) Confidentiality. To the extent required by law, the City of South Charleston will keep confidential all drug and alcohol treatment records, medical records, positive test results and information it provides its Medical Review Officer. Such records and information shall be kept in secure files separate from personnel files. Ordinarily, such information will be disclosed within the City of South Charleston only on a need-to-know basis and disclosed outside the City only where required by law or where a claim, charge or lawsuit is filed against the City or its agents involving such information.
(g) Non-Discrimination. In administering this policy, the City of South Charleston will not discriminate illegally against qualified persons with disabilities, persons with a record of past chemical dependency, persons who are erroneously perceived to be chemically dependent, or against alcohol dependent persons who adhere to all of the City’s normal standards of performance and conduct and do not constitute a threat to property or safety.
(h) Crimes, Criminal Convictions and Disqualifying Driving Offenses. Any employee who is convicted of violating a criminal drug statute in the workplace must notify the City of South Charleston in writing, within five days of the conviction. “Conviction” includes a plea of guilty or nolo contendere or the imposition of a sentence. Such employees will be discharged within thirty days of such notice.
A workplace violation is one in which a criminal act was performed in the City or its boundaries or while an employee was working, supposed to be working, or representing the City of South Charleston.
Employees who are arrested, indicted for or convicted of crimes outside the workplace are subject to suspension and discharge, depending on the circumstances and applicable law.
Employees who are arrested, indicted for, or convicted of disqualifying driving offenses may not be allowed to operate City vehicles or drive while working. Any employee whose job duties involve operation of City vehicles or driving any vehicle while being paid must immediately notify the City of South Charleston in writing, of any arrest, indictment or conviction for a disqualifying drive offense. Such employees are also subject to suspension and discharge, depending on the circumstances and applicable law.
(i) Medications. Employees are expected to use all medications in a safe and lawful manner and to be fit for duty. Employees who use prescribed or over-the-counter medications which are accompanied by warnings that they may cause drowsiness, interfere with the ability to drive or operate machinery safely, or should not be used with alcoholic beverages, must consult with their physician to determine if such medications will interfere with their ability to perform their job duties safely and effectively. Where the physician imposes any restrictions or advises an employee of any potential safety hazard, the employee must immediately notify his or her supervisor of the restrictions or hazard. Such employees will be accommodated as required by law. Employees, however, who are taking such medications but fail to comply with this paragraph, or use such medications contrary to their physician’s instructions or any warnings which accompany the medication, are subject to appropriate discipline.
(j) Definitions. As used in this section:
(1) “Illegal drugs” means controlled substances listed in Schedules I-V of 21 C.F.R. which are not being used under the supervision of a licensed health care professional or otherwise in accordance with federal law. The term can include, but is not limited to, marijuana, cocaine, heroin, PCP, amphetamines, barbiturates, Demerol, and LSD.
(2) “Under the influence of alcohol” means actions, appearance or conduct which reasonably leads a supervisor, manager or a physician to conclude that an employee has been consuming alcoholic beverages and is not fit to work or an alcohol concentration of .04% or more, (i.e., .04 grams or more of alcohol per 210 liters of expired deep lung air).
(3) “Disqualifying driving offenses” means driving a motor vehicle under the influence of alcohol or a controlled substance, refusing while driving to take a legally required alcohol or controlled substances test, leaving the scene of the accident, or a felony involving the use of a motor vehicle.
(k) Procedure if Required Amount of Urine is not Provided.
(1) If the individual has not provided the required quantity of urine, the specimen shall be discarded. The collection site person shall direct the individual to drink up to forty ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided a new urine specimen, whichever occurs first. If the employee refuses to drink fluids as directed or to provide a new urine specimen, the collection site person shall terminate the collection and notify the employer that the employee has refused to submit to testing.
(2) If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, the collection site person shall discontinue the collection and notify the employer.
(3) As soon as possible after the unsuccessful attempt to provide urine, the employer shall arrange for an evaluation from a licensed physician to determine why the employee was not able to provide an adequate amount of urine. The employer shall pay for such evaluation.
(4) The employee may return to work until the results from the MRO are received by the employer.
(5) If the physician determines, in his or her reasonable medical judgment, that a medical condition has, or with a high degree of probability, could have, precluded the employee from providing an adequate amount of urine, the employee’s failure to provide an adequate amount of urine shall not be deemed a refusal to take a test. The employee shall not be terminated. The employee will still be subject to random testing.
For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g. a urinary system disfunction) or a documented pre-existing psychological disorder, but does not include unsupported assertions of “situational anxiety” or dehydration. The physician shall provide the MRO a brief written statement setting forth his or her conclusion and the basis for it, which shall not include detailed information on the medical condition of the employee. Upon receipt of this statement, the MRO shall report his or her conclusions to the employer in writing.
(6) If the physician, in his or her reasonable medical judgment, is unable to make the determination set forth in subsection (k)(5) hereof, the employee’s failure to provide an adequate amount of urine shall be regarded as a refusal to take a test. The employee will be terminated for refusing to take the test.
The physician shall provide to the MRO a brief written statement setting forth his or her conclusion and the basis for it, which shall not include detailed information on the medical condition of the employee. Upon receipt of this statement, the MRO shall report his or her conclusions to the employer in writing.
(l) Miscellaneous. This policy may be revised by the City of South Charleston in its discretion, is not a contract of employment, and does not alter the at-will or civil service relationships that exist between the City of South Charleston and its employees.
This policy will be administered by the department heads and supervisory personnel falling under their authority.
(m) Rehiring. The City may, at its discretion, rehire a former employee who was terminated or resigned as the result of a positive drug/alcohol test after one year has passed since the termination or resignation date. Eligibility for reemployment will be decided by such matters as previous work record, rehabilitation, availability of work and ability to test drug/alcohol free.
A former employee wishing to be reemployed after being terminated or quitting as the result of a positive drug/alcohol test must be retested for drugs and alcohol in accordance with this policy and be medically certified. Upon reemployment the employee is subject to additional tests at the City’s discretion for up to 60 months following the employee’s return to employment without prior notice. Two tests are to occur within six months of the employee’s return to work. Any positive test results or refusal to submit to testing shall result in termination of employment without the issuance of a warning letter and no opportunity to later reinstatement. Such termination will be viewed as a voluntary quit.
(Ord. 2056. Passed 2-17-05.)