(a) Declaration of Policy: Purpose and Background. In balancing the interests of the City, its residents and its employees, and the health, safety and general welfare of the public, the Council finds that fair and equitable testing for drugs in the workplace, in accordance with the terms of this section, the laws of the State, the Constitution of the State and the Constitution of the United States, is in the best interest of all parties. A healthy and productive work force and safe working conditions free from the effects of drugs are of importance to the City, its residents, its employees and the general public. All have an interest in a safe and productive work environment, in preserving the quality of the services rendered and in maintaining a favorable reputation of the City. The abuse of drugs creates a host of workplace problems, including increased injuries on the job, increased absenteeism, increased financial drain on City programs and funds, increased workplace theft and decreased employee morale. The public has an interest in safety in the workplace and in the quality of services rendered in the City. The public also has an interest in controlling and reducing the crime rate, both in and out of the workplace. Further, the public has an interest in the continued ability of the City to provide services to its residents. The misuse of drugs poses a threat to these important goals. Furthermore, the Drug-Free Workplace Act of 1988, 41 U.S.C. 701 et. seq., obligates employers to implement established criteria to establish and maintain a drug free workplace. Accordingly, the following provisions are established to meet such obligations:
(1) The unlawful use or possession of drugs in the workplace is hereby prohibited.
(2) The City shall provide drug free awareness information to its employees.
(3) An employee convicted of a drug related crime that occurs in the workplace is required to notify the City of such incident within five days of conviction, plea or any other resolve, excluding a dismissal or a not-guilty verdict.
(4) The City shall take appropriate personnel action against employees who unlawfully use or possess drugs in the workplace.
(5) The City shall, within ten days, report any conviction to Federal contracting or granting agencies that the City utilizes in obtaining Federal dollars.
(6) The City shall make a good faith effort to continue maintaining a drug-free workplace.
(b) Prohibited Conduct: Procedures.
(1) Use of controlled substances. The City shall not hire for employment individuals who demonstrate that they are illegally using, or have illegally used, controlled substances recently within the time of their application for employment, or retain as an employee an individual who uses controlled substances, as defined by the criminal laws of the State, to the extent that such use would impair employee job performance or tend to bring the City, or an agency of the City, into disrepute, or constitute conduct unbecoming the employee's position. In no event shall a prospective employee continue to illegally use controlled substances, either on duty or off duty, during the term of his employment with the City.
(2) Sale or distribution of controlled substances. No employees of the City shall engage in conduct, either on or off duty, amounting to the illegal distribution of controlled substances as defined by the criminal laws of the State.
(3) Safety Director to establish tests. The Council hereby authorizes the testing of individuals seeking employment with the City in an effort to verify compliance with the terms of this section. The Council further authorizes the Safety Director to designate appropriate test facilities, techniques and the appropriate procedures in order to implement the terms of this section in conformance with the laws of the State, the Constitution of the State and the Constitution of the United States.
Collection and testing shall be conducted by a recognized independent testing facility as determined by the Safety Director. Such tests will be conducted under established policies governing collection, testing, chain of custody and retention of samples.
In the event an employee tests positive and wishes to have a second independent test, he may do so at his own expense. Such additional tests shall be performed using a portion of the original sample retained by the testing facility. A documented chain of custody shall be maintained with testing conducted under established policies as set forth in this subsection.
The Safety Director shall establish reasonable safeguards for preserving the confidentiality of the test results, subject to the requirements of Ohio R.C. 149.43 and Chapter 1347, if applicable, and such test results shall be the sole property of the City. The City is entitled to use test results as a basis for action, as set forth in paragraph (b)(5) hereof.
In order to effectively test for the presence of drugs, the City shall require biological specimens (samples) from prospective employees and may require presentation of reliable identification to the person collecting the same. Selection of the type of sample is at the sole discretion of the Safety Director.
(4) Pre-employment testing. All candidates for employment with the City or any of its departments, on and after the effective date of this section, are hereby required to undergo the testing authorized by paragraph (b) (3) hereof.
(5) Sanctions.
A. Failure to submit to a test authorized herein shall automatically disqualify a candidate for appointment to the position for which such testing was to have been performed.
B. A positive test for drugs, however, shall not operate in and of itself as a bar to consideration for employment, but may be considered in evaluating a candidate for employment. Upon receipt of a positive drug test for any candidate for employment, the hiring authority shall review the test results, including the type of drug used, in light of the job functions of the candidate. If, after review, the hiring authority determines that the candidate's drug use will negatively affect the health, safety and general welfare of the residents of the City, the candidate shall be denied consideration for employment with the City.
C. If the hiring authority determines that the candidate's former drug use will not affect job performance as indicated in paragraph (b)(5)B. hereof, the candidate may be further considered for employment. If a candidate who has tested positive for controlled substances is hired for employment with the City, the candidate shall be required to attend a drug abuse counseling/rehabilitation program approved by the hiring authority, at the employee/ candidate's expense, until such time as the employee/candidate demonstrates that he is no longer subject to the use or influence of controlled substances. Failure to attend or comply with the requirements of the treatment/counseling program shall constitute a failure to obey a lawful and reasonable direction given by a superior and will subject an employee to disciplinary action. Furthermore, attendance in a drug abuse counseling/ rehabilitation program under this section shall not preclude the hiring authority from taking action where effects from substances other than those originally allowed are determined.
(6) Testing warranted by action, conduct or behavior. Employees may also be required to undergo mandatory drug testing when involved in a serious incident during working hours and/or when observed behavior during working hours provides probable cause to believe that the employee may be abusing drugs or is under the influence of drugs.
A. Serious incidents are defined as any serious motor vehicle accident, use of deadly force by an employee while acting in an official capacity, or altercation. The Safety Director or his designate shall order the testing of any employees involved in such incidents. A serious motor vehicle accident is defined as any vehicular accident resulting in death, injury, or property damage in excess of five hundred dollars ($500.00).
B. Testing under reasonably suspicious circumstances may be ordered if there is probable cause to believe that the employee may be abusing drugs. Any department head shall articulate such probable cause in writing and forward it to the Safety Director. If the Safety Director concurs that there is probable cause of possible drug abuse he may order such employee to submit to drug testing. Prior to ordering the employee to submit to any testing, the facts on which the decision was made shall be disclosed to the involved employee in writing.
C. Any department head shall have the authority to order any subordinate employee under his supervision to submit to a breathalyzer or other blood/alcohol test approved by the Director of the Ohio Department of Health, if he has probable cause to believe that the employee is impaired by alcohol or has consumed an alcoholic beverage in violation of this section. The department head shall articulate such probable cause in writing and forward it to the Safety Director.
D. Any information regarding the results of any employee drug testing or the fact that an employee has been ordered to undergo mandatory drug testing or counseling is to be considered confidential, and the results of such testing shall remain with the Safety Director.
(7) Employees who test positive. An employee who tests positive for drugs as a result of a serious on-duty incident is subject to disciplinary action up to and including dismissal from employment. In those instances where the violation has not resulted in dismissal, the following disciplinary actions may be imposed, in addition to any other disciplinary actions that may be imposed:
A. The first positive drug test shall be cause for the employee to be placed in a recognized drug treatment program as determined and/or accepted by the Safety Director.
1. Refusal of the employee to enter such treatment program shall be grounds for administrative action up to and including dismissal.
2. Any employee who has previously had a drug test with positive results and has a second subsequent positive test shall be subject to administrative action up to and including dismissal.
B. Any employee ordered into a rehabilitation program shall be subject to unannounced testing, not to exceed twice per year, for the next thirty- six months after entering rehabilitation.
C. Refusal of any employee to take a drug or alcohol screening test when lawfully ordered by the Safety Director may be the basis for administrative action, including dismissal from employment.
(8) Second test. An employee tested may have a physician, a registered nurse or a qualified technician or chemist of the employee's own choosing administer a chemical test or tests in addition to any administered at the request of the City. Said test or tests shall be at the employee's cost. The failure or inability of any employee to obtain an additional chemical test shall not preclude the admission of evidence relating to the chemical test or tests taken at the request of the City, nor preclude the City from taking action based on said test.
(9) Employee-requested leave. Upon request of an employee, the Mayor shall grant an employee sick leave or leave without pay to attend a rehabilitation program without a disciplinary action where such request is not predicated on an incident, event or series of events which would be subject to disciplinary action under these Codified Ordinances, rules and/or policies of the City. The City retains the right to reassign, place on leave, or take any other action deemed necessary to protect the health, safety and welfare of the employee, co-employees and the public.
(10) Severability. If any part or provision of this section is held to be invalid under, or repugnant to, the laws of the State, the Constitution of the State or the Constitution of the United States, the remainder of this section shall not be affected and shall continue in full force and effect.
(Ord. 93-16. Passed 4-6-93.)