DRUGS AND ALCOHOL TESTING POLICY*

A.             Purpose:

1.                 The purpose of this policy is to establish procedures for the administration of the Department of Transportation (DOT) drug and alcohol testing program pursuant to the Pipeline Safety Regulations, Code of Federal Regulations, Title 49 (49 CFR), Parts 199 and 40. Parts 199 and 40 require operators of gas systems to have drug and alcohol testing programs for persons who perform on these facilities operating, maintenance, or emergency-response functions covered by the DOT pipeline safety standards in 49 CFR. All employees shall be employed in positions covered by this regulation, so all employees shall be subject to this policy.

2.                 Any job applicant who refuses or fails a pre-employment drug test will not be hired. Any employee who refuses or fails a drug or alcohol test will immediately be removed from the operating, maintenance, or emergency response functions covered by the DOT pipeline safety standards in 49 CFR. Any employee who refuses or fails a drug or alcohol test may receive disciplinary action, up to and including termination.

B.             Procedure:

1.            Employee categories/contact persons:

a.                  Employee Categories: The duties and responsibilities as defined by DOT may extend to all employees; as such, all employees shall be subject to the policy.

b.                  Contact Persons:

(1) The contact persons for the administration of this policy (policy administrators) shall be the following, who shall receive training for the detection of symptoms for drug and/or alcohol use:

(a)               Mayor.

(b)               City Clerk/Treasurer.

(c)               Water Plant Superintendent.

(d)               Wastewater Plant Superintendent

(e)               Water and Gas Superintendent

(f)                 Street and Sanitation Supervisor / Mechanic

(2) The Mayor, City Clerk/Treasurer, and each superintendent and/or supervisor shall receive a one-hour (minimum) training period on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug and alcohol use; however, other supervisors may receive the training. If a supervisor or employee has not received the training and suspects an employee is under the influence

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*The drug and alcohol testing policy was originally designed for covered employees as defined by federal regulation, but applies to all City employees.

 

of drugs or alcohol, a program administrator must be called to observe the behavior of the employee prior to determining reasonable suspicion.

               2. Participation as a requirement of employment:

Participation in the drug and alcohol testing program is a requirement for all employees and is, therefore, a condition of employment and continued employment as prescribed by 49 CFR Parts 199 and 40, Department of Transportation.

               3. Required hours of compliance:

a.                  Use or ingestion of prohibited drugs are prohibited at all times.

b.                  An employee must not consume alcohol four (4) hours prior to reporting for duty, and up to eight (8) hours following an accident or until the employee undergoes a post-accident test, whichever occurs first.

               4. Prohibited behavior:

a.        Employees are prohibited from engaging in unlawfully manufacturing, distributing, dispensing, possessing, or using controlled substances in the workplace consistent with the Drug-Free Workplace Act of 1988.

b.        Possession of drugs or alcohol in City vehicles, facilities, or work premises is prohibited.

c.        Prohibited employee conduct includes using drugs at any time, and/or using alcohol within four (4) hours prior to reporting for duty, while on duty, or within eight (8) hours following an accident which requires employee to take an alcohol test.

   5. Circumstances for testing: Employees subject to this drug and alcohol testing program are required to be tested under the following types of tests:

a.            Pre-Employment Testing:

(1)               DOT regulations require that all applicants for employment be given pre-employment drug tests. Applicants may not be offered employment unless they pass a required drug test.

(2)               A former City employee who is reemployed shall be subject to pre-employment testing prior to reemployment.

(3)               All applicants will be tested before being employed.

(4)               Pre-employment job applicants who test positive will not be offered employment with the City.

b.            Random Testing:

 

 (1) DOT requires that all employees working in positions covered by this policy be subject to unannounced drug testing based on random selection, including temporary employees. [NOTE: The City's policy includes random testing for alcohol.]

(2) (a) At least fifty percent (50%) of employees required to be tested under federal law must be tested every twelve (12) months for drugs, and ten percent (10%) must be tested every twelve months for alcohol.

(b)         For all remaining employees, at least ten percent (10%) must be tested for drugs every twelve (12) months, and ten percent (10%) must be tested for alcohol every twelve (12) months in a separate pool.

(c)         All persons will be subject to be randomly picked for drug and alcohol testing at each random testing date. An individual may be randomly picked more than once or not picked at all during the annual period.

(3)                        A random selection procedure will be used in selecting the employees to be tested each testing period.

(4) The selection procedure will select sufficient additional numbers (names) to be used to reach the appropriate testing level during each test period. These alternate numbers (names) will be tested in order of selection only if persons selected are unavailable for testing due to vacations, medical leave, or travel requirements.

(5)            Random testing will be done at least on a quarterly basis.

c.            Post-Accident Testing:

(1)               Following an accident, as defined in (3) below, each surviving covered employee will promptly be tested for drugs and alcohol if that employee's performance contributed to the accident or cannot be completely discounted as a contributing factor to the accident. The decision not to administer a drug and alcohol test will be based on a policy administrator's determination that the employee's performance can be discounted completely as a causative or contributing factor.

(2)               The employee will be tested as soon as possible, but no later than thirty-two (32) hours for drugs and eight (8) hours for alcohol after the accident. If a test is not administered within two (2) hours following the accident, the policy administrator must still attempt to administer the test, and prepare and maintain on file a record stating the reasons the test was not promptly administered. If an alcohol test is not administered within eight (8) hours following an accident, the policy administrator will stop trying to conduct an alcohol test and shall maintain the same record.

(3)               An "accident" on a gas pipeline or LNG facility is defined as follows:

(a)            Gas pipeline facilities: An accident means an "incident"

in 49 CFR Section 191 involving gas pipeline facilities, which includes all parts of those physical facilities through which gas moves in transportation, including but limited to pipe, valves, and other appurtenances attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders, and fabricated assemblies. An incident on a gas pipeline is defined as an event that involves a release of gas from a pipeline and (1) a death or personal injury necessitating inpatient hospitalization; or (2) estimated property damage, including cost of gas lost, to the operator or others, or both, of $50,000 or more. An event that is significant, in the judgment of the operator, even though it did not meet the criteria as defined.

(b) As defined under the Commercial Drivers License legislation, an "accident" that results in a fatality, bodily injury to a person who must receive medical attention away from the scene of the accident, or in which one or more vehicles incur damage requiring the vehicle to be transported away from the scene by another vehicle or tow truck, employees must remain available for testing unless the employee is required to leave the scene for medical attention for injuries or to summon emergency personnel. Except for a fatal accident, verification of the driver's responsibility in the above accident scenarios must be established by a citation of the driver. Nothing in this section should be construed as to require the delay of necessary medical attention for injured persons following an accident.

(4)               An employee subject to post-accident testing and who fails to remain readily available for such testing, including notifying the policy administrator of the location if the employee leaves the scene of the accident prior to submission to drug and alcohol tests, may be deemed to have refused to submit to testing and shall be considered to have received a positive test, shall not be permitted to continue working, and may be subject to disciplinary action up to and including termination of employment.

(5)               If an employee who is subject to post-accident testing refuses to be tested, that employee shall be considered to have received a positive test, shall not be permitted to continue working, and may be subject to disciplinary action up to and including termination of employment.

d. Reasonable Suspicion Testing:

(1)               DOT regulations require employees in covered positions to submit to a test when the policy administrator has reasonable suspicion that an employee has used a prohibited drug or has misused alcohol as defined in DOT regulations. Observations for reasonable suspicion must be made by a supervisor of the employee or other management or administrative personnel who have received at least sixty (60) minutes of training in detecting drug and alcohol use.

(2)               The policy administrator's request to undergo a reasonable suspicion test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odor of the employee. If an employee or supervisor has reasonable suspicion that an employee is under the influence of alcohol or prohibited drugs while on the job, the employee shall report the reasonable suspicion to a supervisor or other management or administrative personnel who have received training necessary to observe an employee and determine reasonable suspicion

 

and order testing for alcohol or drugs. Refusal to be tested after receiving a directive to be tested shall constitute a positive test, the employee shall be removed from the job, and the employee shall be subject to disciplinary action, up to and including dismissal. Return-to-duty provisions shall apply before an employee can return to duty.

(3) Testing under 49 CFR, Part 199, is limited to alcohol and the following drugs or their metabolites: marijuana, cocaine, opiates, amphetamines, and PCP; Part 40 includes the use of alcohol. However, for purposes of reasonable cause, employees will be tested for any substance listed in Schedules I or II of the Controlled Substance Act.

e.            Return to Duty Testing:

(1)               Before any employee is allowed to return to duty following a verified positive drug test result, an alcohol result 0.04 or greater, a refusal to submit to a test, or any other activity that violates the regulations, that employee must first be evaluated by a substance abuse professional (SAP) and pass a return to duty test. Before a return to duty test is performed, the employee must be evaluated by a SAP to determine whether the employee has followed the recommendations for action by the SAP.

(2)               The employee must have a verified negative drug test result and/or an alcohol test result of less than 0.02 to return to duty. If the test is canceled, the employee shall submit to and pass another drug test.

f.            Follow-up testing:

(1) Once allowed to return to duty, an employee shall be subject to unannounced follow-up testing for at least twelve (12) but not more than sixty (60) months as directed by the SAP. The employee will be subject to at least six (6) unannounced follow-up tests during the first twelve (12) months following the employee's return to duty; the SAP may terminate the requirement for follow-up tests at any time after the initial six (6) tests have been completed. These tests are in addition to the other types of tests stated in this policy.

(2)                        Testing will be on a daily, weekly, monthly, or longer basis at the discretion of the SAP.

6.            Behavior that Constitutes a Refusal to Submit to a Test: Kinds of behavior that constitute a refusal:

a.                  Refusal to take the test.

b.                  Inability to provide sufficient quantities of breath or urine to be tested without valid medical explanation.

c.                  Tampering with or attempting to adulterate the specimen or collection site in the time allotted.

 

d.       Leaving the scene of an accident without a valid reason before tests
have been conducted.

7.            Testing Procedures:

a.            Drug testing procedures:

(1)               Drug testing will be performed utilizing urine specimens for marijuana, cocaine, opiates (e.g., heroin, morphine, codeine), phencyclidine (PCP), and amphetamines (e.g., racemic amphetamine, dextroamphetamine, and methamphetamine), or the metabolites of the drugs.

(2)               Identification of either a drug or its metabolite in the urine indicates use of the drug in the recent past.

(3)               An applicant who is offered a position covered by this policy will be required to report to the drug testing collection site within forty-eight (48) hours of notification and provide a specimen of his/her urine.

(4)               Upon notification that a drug test is required, an employee will report as soon as possible but no later than twenty-four (24) hours [thirty-two (32) hours post accident] after notification to the drug collection site and provide a specimen of his/her urine.

(5)               The collection agency shall adhere to all requirements outlined in 49 CFR Part 40, Procedures for Transportation Workplace Drug Testing Program.

b. Alcohol testing procedures:

(1)         Alcohol testing for all employees will be made by using National Highway Safety Administration (NHSA) approved evidential breath testing (EBT) device operated by a trained Breath Alcohol Technician (BAT).

(2)         An employee with breath levels of 0.02 or higher must be re­tested at least fifteen (15), but not more than twenty (20) minutes before the completion of the screening test.

(3)         An employee with an alcohol concentration of 0.02 or greater but less than 0.04 must be removed from duty for eight (8) hours or until a retest shows an alcohol concentration of less than 0.02, or the start of the employee's next duty period, but not less than eight hours following the determination that there is reasonable suspicion to believe that the employee has violated the prohibitions as contained in this policy.

(4)         An employee with an alcohol concentration of 0.04 or greater is prohibited from performing required duties until the employee has been evaluated by a SAP and has passed a return to duty test.

 

8.            Consequences of Violation of Policy:

a.                  As set forth in this policy, the first violation of prohibition against either alcohol or drugs may result in disciplinary actions ranging from suspension to dismissal. Employees who violate this policy and are allowed to return to duty shall receive approval of the SAP before returning to duty. The requirements of the SAP may be greater than the provisions of this policy. Upon completion of whichever is greater, and after passing a return-to-duty test, the employee will be permitted to resume employment. However, the employee will be on "probation" during the first year after return and will be subjected to follow-up testing as set forth in this policy. A second "positive" test during the period of probation will result in immediate dismissal.

b.                  A second "positive" test occurring outside of the probationary period will result in review of the total employment history of the employee, with a decision being made by the Mayor as to whether the employee should again be referred for substance abuse assistance or whether the employment should be terminated.

9.             Confidentiality and Record keeping:

a. All records regarding drug or alcohol testing shall be maintained in accordance with federal law, shall be considered confidential, and may not be released except upon request or release of the employee, except:

(1)               In the event of a lawsuit;

(2)               In the event of a claim, grievance or other proceeding initiated by or on behalf of the employee arising from the results of an alcohol or controlled substance; or

(3)               At the request of the Department of Transportation.

b. Records shall be maintained for the appropriate one, two and five year periods of time as required under 49 CFR, and shall be filed with the Department of Transportation as required annually or upon request.

C.                Coordination of Drug and Alcohol Testing Policy with Other Federal and State Laws and City of Flemingsburg Policies:

This policy shall be administered in compliance with other federal and state laws and administrative regulations, and City policies relating to employee health and welfare.

D.                Amendments:

This policy is subject to amendment by the City as the needs arise. Copies of the amendments to this policy will be provided to all affected employees upon adoption.