§ 2-32. Drugs and Alcohol in the Workplace.
(a)
Overview. The city believes an alcohol and drug-free workplace promotes the safety, health and productivity of its employees. To achieve this goal, all employees are required to report to work in an appropriate mental and physical condition to perform their jobs in a satisfactory and safe manner.
Prohibited conduct .
No City employee may use, possess, distribute, sell, purchase or be under the influence of alcohol (except under the limited circumstances described below), inhalants, illegal drugs, including drugs which are legally obtainable but which were not legally obtained, and prescribed or over-the-counter drugs that are not being used as prescribed or as intended by the manufacturer, while performing work for the city.
This prohibition also extends to the use, possession, distribution, purchase or sale of drug-related paraphernalia while performing work for the city. Drug-related paraphernalia includes material and/or equipment designed for use in testing, packaging, storing, injecting, ingesting, inhaling or otherwise introducing illegal or unauthorized drugs into the body.
Scope .
For purposes of this policy, the term "performing work for the city" includes all employee activity occurring while on city premises; while on duty; while conducting city-related business or other activities off premises; while driving a city-owned or leased vehicle; or while operating or using other city-owned or leased property or equipment.
Off-duty conduct .
The city reserves the right to take disciplinary action, up to and including termination, against any city employee if the employee's off-duty use of or involvement with drugs or alcohol is damaging to the city's reputation or business, is inconsistent with the employee's job duties, or when such off-duty use or involvement adversely affects the employee's job performance.
Exceptions .
The following limited exceptions shall not constitute a violation of this policy:
1.
Employees who are conducting city business, including city-related business entertainment outside normal city business hours may consume alcohol without violating this policy, subject to the following limitations:
i.
Any consumption of alcohol by a city employee during a business lunch is strictly prohibited.
ii.
No city employee may drive a motor vehicle while under the influence of alcohol.
iii.
No city employee serving in their work-related capacity should ever be impaired due to an excessive consumption of alcohol.
2.
Employees may only bring alcoholic beverages onto city premises, including parking lots adjacent to city work areas, upon the express and specific approval of the city manager. City employees are prohibited from storing or transporting alcoholic beverages in a city-owned or leased vehicle unless it occurs in connection with a city-sponsored event and is approved by the city manager.
3.
Employees who use or possess a drug authorized by and in the manner prescribed by a licensed physician through a prescription specifically for that employee's use, or in accordance with the terms of use for over-the-counter drugs, and who notifies his/her supervisor of any effects such use may have on the employee's work performance, will not be considered to have violated this policy.
4.
Police department employees, and other safety employees, who come in possession of alcohol and/or drugs in carrying out their job duties shall not be considered to have violated this policy.
5.
Employees who are not scheduled to be "on call," but are nonetheless called upon to report to work, may notify their supervisor of an inability to report to work when reporting to duty would constitute a violation of this policy. In such case, the employee will not be required to report to duty. However, employees who are scheduled to be "on call" and are called out for service are governed by this policy and will be expected to report to work in a fit and satisfactory manner.
Violations .
Employees who violate this drug and alcohol use policy will be subject to disciplinary action. In determining what disciplinary action to take, the city may consider the seriousness of the infraction, the past record of the employee, and the circumstances surrounding the matter.
Treatment programs and employee insurance .
While the city does not sponsor or endorse any specific drug or alcohol treatment programs, such programs are available through public and private health care facilities in our area. Affected employees are encouraged to seek assistance for themselves and their dependents.
(b)
Drug testing for non-DOT employees. Employees who are hired to positions that are not "safety sensitive" or otherwise subject to regulations by the U.S. Department of Transportation ("DOT") shall be subject to the following conditions for drug testing during their employment:
1.
Pre-employment : All applicants for employment must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration.
2.
Reasonable suspicion : Employees are subject to testing based on (but not limited to) observations of apparent workplace use, possession or impairment due to drugs or alcohol. The city manager, or designee, should be consulted before an employee is tested based on a reasonable suspicion. Any supervisor or other managerial employee who refers an employee for testing based on reasonable suspicion must document in writing the specific factors that support the referral for testing (i.e. details of the employee's behavior and symptoms, statements from other employees or third-party witnesses, and other evidence supporting the suspicion). If the results of those observations and behaviors indicate further action is justified, the city manager or department head should confront the employee with the documentation.
3.
Post-accident : Employees are subject to testing when they cause or contribute to accidents that:
(i)
Seriously damage a city vehicle, machinery, equipment or property; or (ii) result in an injury to themselves or another employee. An employee may also be subject to testing in the case of a "near miss" accident. In any of these instances, the investigation and subsequent testing must occur within two (2) hours following the accident, if not as soon as practicable.
4.
Treatment or rehabilitation program : Employees may be tested for drugs or alcohol in connection with any required treatment or rehabilitation program for substance abuse.
Testing procedure .
All drug or alcohol testing shall be paid by the city and when possible, shall occur during the employee's normal working hours. Testing may include one (1) or more of the following types of tests: urinalysis, hair testing, breathalyzer, intoxilyzer, blood, or any other generally-accepted testing procedure.
1.
Department heads must obtain the approval of the city manager, or designee, prior to submitting an employee for drug or alcohol testing. If the city manager, or designee, is unavailable within a reasonable period of time, the department head may authorize the testing in his/her sole discretion. When testing is based on a "reasonable suspicion," no testing may be authorized until the employee's supervisor has documented the articulable factors supporting the reasonable suspicion.
2.
In the case of a workplace injury, accident or "near miss," or when a reasonable suspicion exists that an employee has violated this policy, the city shall provide the employee with transportation to the testing facility and his/her return home following the testing. The employee's supervisor, or another city representative, will stay with the employee until the testing is complete.
3.
All testing will be performed by an approved laboratory or healthcare provider, as selected by the city. Any positive test results may be subject to confirmation testing.
4.
Employees will be paid for time spent in alcohol or drug testing and then suspended with pay, or assigned to alternate duty if available, pending the results of the drug or alcohol test. After the results of the test are received, a date and time will be scheduled to discuss the results of the test. This meeting will include the employee's department head. If the results are negative, the employee will receive back pay for the times/days of suspension.
5.
A positive test result constitutes a violation of this policy and may result in disciplinary action, up to and including termination of employment. Any employee who is terminated for violating this policy is not eligible for future re-employment with the city.
6.
Any employee who refuses to be tested, or who attempts to alter or tamper with a sample or any part of the testing process will be subject to disciplinary action, up to and including termination.
(c)
Drug testing for employees subject to DOT regulations. All employees subject to regulation by the U.S. Department of Transportation ("DOT") are required to submit to drug and alcohol tests as a condition of employment in accordance with the federal regulations found in 49 CFR Part 382, as amended, and 49 CFR Part 40, as amended. Copies of Parts 382 and 40 can be obtained from the human resources department (the drug and alcohol program manager) and can be found on the Internet at the Department of Transportation (DOT) Office of Drug and Alcohol Policy and Compliance website.
Covered employees .
Per federal regulations, every employee whose position requires the possession of a commercial driver's license (CDL) or the performance of "safety-sensitive functions," including applicants for such positions, are "covered employees" subject to DOT testing requirements.
Safety-sensitive functions include, but are not limited to:
• Driving a commercial motor vehicle which requires the driver to have a CDL;
• Waiting to be dispatched to operate a commercial motor vehicle;
• Inspecting, servicing, or conditioning any commercial motor vehicle;
• Performing all other functions in or upon a commercial motor vehicle (except resting in a sleeper berth);
• Loading or unloading a commercial motor vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloading, remaining in readiness to operate the vehicle, or giving or receiving receipts for shipments being loaded or unloaded;
• Repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle
Prohibited behavior .
Use of illegal drugs is prohibited at all times. All covered employees are prohibited from reporting for duty or remaining on duty any time there is a quantifiable presence of a prohibited drug in the body at or above the minimum thresholds defined in Part 40. Prohibited drugs include:
(e)
Marijuana;
(f)
Cocaine;
(g)
Phencyclidine (PCP);
(h)
Opioids;
(i)
Amphetamines.
All covered employees are prohibited from performing or continuing to perform safety-sensitive functions while having an alcohol concentration of 0.04 or greater.
All covered employees are prohibited from consuming alcohol while performing safety-sensitive job functions or while on-call to perform safety-sensitive job functions. If an on-call employee has consumed alcohol, they must acknowledge the use of alcohol at the time that they are called to report for duty. If the on-call employee claims the ability to perform his or her safety-sensitive function, he or she must take an alcohol test with a result of less than 0.02 prior to performance.
All covered employees are prohibited from consuming alcohol within four (4) hours prior to the performance of safety-sensitive job functions.
All covered employees are prohibited from consuming alcohol for eight (8) hours following involvement in an accident or until he or she submits to the post-accident drug and alcohol test, whichever occurs first.
Circumstances for testing .
1.
Pre-employment. A negative pre-employment drug test result is required before an employee can first perform safety-sensitive functions. If a pre-employment test is cancelled, the individual will be required to undergo another test and successfully pass with a verified negative result before performing safety-sensitive functions.
a.
If a covered employee has not performed a safety-sensitive function for 90 or more consecutive calendar days and has not been in the random testing pool during that time, the employee must take and pass a pre-employment test before he or she can return to a safety-sensitive function.
b.
A covered employee or applicant who has previously failed or refused a DOT pre-employment drug test must provide proof of having successfully completed a referral, evaluation, and treatment plan meeting DOT requirements.
c.
Exceptions: A driver is not required to undergo a pre-employment test if: (i) the driver has participated in a DOT testing program within the previous thirty (30) days and while participating in that program, was either drug tested within the past six (6) months (from the date of application with the city), or participated in the random drug testing program for the previous twelve (12) months (from the date of application with city); and (ii) the city can ensure that no prior employer of the driver of whom the city has knowledge has records of a violation of this part or the controlled substances use rule of another DOT agency within the previous six (6) months.
2.
Reasonable suspicion testing. All covered employees shall be subject to a drug and/or alcohol test when the city has reasonable suspicion to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse. A reasonable suspicion referral for testing will be made by a trained supervisor or other trained city official on the basis of specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee.
a.
Covered employees may be subject to reasonable suspicion drug testing any time while on duty.
b.
Covered employees may be subject to reasonable suspicion alcohol testing while the employee is performing safety-sensitive functions, just before the employee is to perform safety-sensitive functions, or just after the employee has ceased performing such functions.
3.
Post-accident testing. Covered employees shall be subject to post-accident drug and alcohol testing under the following circumstances:
a.
Fatal accidents: As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce and involving the loss of a human life. Drug and alcohol tests will be conducted on each surviving covered employee who was performing safety-sensitive functions with respect to the vehicle.
b.
Non-fatal accidents: As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, and not involving the loss of a human life.
i.
An alcohol test will be conducted on each driver who receives a citation within eight (8) hours of the occurrence under state or local law for a moving traffic violation arising from the accident, if: (A) the accident results in injuries requiring immediate medical treatment away from the scene; or (B) one (1) or more motor vehicles incur disabling damage and must be transported away from the scene by a tow truck or other motor vehicle.
ii.
A drug test will be conducted on each driver who receives a citation within thirty-two (32) hours of the occurrence under state or local law for a moving traffic violation arising from the accident, if: (A) the accident results in injuries requiring immediate medical treatment away from the scene; or (B) one (1) or more motor vehicles incur disabling damage and must be transported away from the scene by a tow truck or other motor vehicle.
A covered employee subject to post-accident testing must remain readily available, or it is considered a refusal to test. Nothing in this section shall be construed to require the delay of necessary medical attention for the injured following an accident or to prohibit a covered employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.
4.
Random testing. Random drug and alcohol tests are unannounced and unpredictable, and the dates for administering random tests are spread reasonably throughout the calendar year. Random testing will be conducted at all times of the day when safety-sensitive functions are performed.
a.
Testing rates will meet or exceed the minimum annual percentage rate set each year within each DOT agency. If a given driver is subject to random testing under the rules of more than one (1) DOT agency, the driver will be subject to random drug and alcohol testing at the annual percentage rate established by the DOT agency regulating more than fifty percent (50%) of the driver's function.
b.
The selection of employees for random drug and alcohol testing will be made by a scientifically valid method, such as a random number table or a computer-based random number generator. Under the selection process used, each covered employee will have an equal chance of being tested each time selections are made.
c.
A covered employee may only be randomly tested for alcohol misuse while the employee is performing safety-sensitive functions, just before the employee is to perform safety-sensitive functions, or just after the employee has ceased performing such functions. A covered employee may be randomly tested for prohibited drug use anytime while on duty.
d.
Each covered employee who is notified of selection for random drug or random alcohol testing must immediately proceed to the designated testing site.
5.
Return to duty testing. Any employee who is allowed to return to safety-sensitive duty after failing or refusing to submit to a DOT drug and/or alcohol test must first be evaluated by a substance abuse professional (SAP), complete a SAP-required program of education and/or treatment, and provide a negative return-to-duty drug and/or alcohol test result. All tests will be conducted in accordance with applicable federal regulations.
6.
Follow-up testing. Employees returning to safety-sensitive duty following leave for substance abuse rehabilitation will be required to undergo unannounced follow-up alcohol and/or drug testing for a period of one (1) to five (5) years, as directed by the SAP. The duration of testing will be extended to account for any subsequent leaves of absence, as necessary. The type (drug and/or alcohol), number, and frequency of such follow-up testing shall be directed by the SAP. All testing will be conducted in accordance with applicable federal regulations.
Testing procedures .
All drug and alcohol testing will be conducted in accordance with applicable federal regulations, as amended.
1.
Dilute urine specimen. If there is a negative dilute test result, the city will accept the test result and there will be no retest, unless the creatinine concentration of a negative dilute specimen was greater than or equal to two (2) mg/dL, but less than or equal to five (5) mg/dL. Dilute negative results with a creatinine level greater than or equal to two (2) mg/dL but less than or equal to five (5) mg/dL require an immediate recollection under direct observation.
2.
Split specimen test. In the event of a verified positive test result, or a verified adulterated or substituted result, the employee can request that the split specimen be tested at a second laboratory, at the employee's own cost. The city guarantees that the split specimen test will be conducted in a timely fashion.
Test refusals .
The following situations will be deemed a "refusal to test":
1.
Failure to appear for any test (except a pre-employment test) within a reasonable time, as determined by the city.
2.
Failure to remain at the testing site until the testing process is complete. An employee who leaves the testing site before the testing process commences for a pre-employment test has not refused to test.
3.
Failure to attempt to provide a breath or urine specimen. An employee who does not provide a urine or breath specimen because he or she has left the testing site before the testing process commenced for a pre-employment test has not refused to test.
4.
In the case of a directly-observed or monitored urine drug collection, failure to permit monitoring or observation of your provision of a specimen.
5.
Failure to provide a sufficient quantity of urine or breath without a valid medical explanation.
6.
Failure or declining to take a second test as directed by the collector or the city for drug testing.
7.
Failure to undergo a medical evaluation as required by the MRO or the city's designated employer representative (DER).
8.
Failure to cooperate with any part of the testing process.
9.
Failure to follow an observer's instructions to raise and lower clothing and turn around during a directly-observed test.
10.
Possessing or wearing a prosthetic or other device used to tamper with the collection process.
11.
Admitting to the adulteration or substitution of a specimen to the collector or MRO.
12.
Refusing to sign the certification at Step 2 of the alcohol testing form (ATF).
13.
Failure to remain readily available following an accident.
As a covered employee, if the MRO reports that you have a verified adulterated or substituted test result, you have refused to take a drug test.
Consequences for violations .
Following a positive drug or alcohol (BAC at or above 0.04) test result or test refusal, the employee will be immediately removed from safety-sensitive duty and referred to a substance abuse professional (SAP).
Following a BAC of 0.02 or greater, but less than 0.04, the employee will be immediately removed from safety-sensitive duties until the start of the employee's next regularly scheduled duty period, but not less than 24 hours following administration of the test. Employees with a positive drug or alcohol test result, or who refuse to submit to testing, will be subject to discipline up to and including termination.
If an employee decides to enroll in a rehabilitation program following a positive test result for drugs or alcohol, the employee shall be responsible for the cost of such program. Employees shall be entitled to utilize any available paid leave for the purpose of participating in a rehabilitation program. The city may grant employees unpaid leave to participate in a rehabilitation program at its discretion.
Voluntary self-referral .
Any covered employee who has a drug and/or alcohol abuse problem and has not been selected for reasonable suspicion, random or post-accident testing or has not refused a drug or alcohol test may voluntarily refer her or himself to the city administrator, who will refer the individual to a substance abuse counselor for evaluation and treatment.
The substance abuse counselor will evaluate the employee and make a specific recommendation regarding the appropriate treatment. Employees are encouraged to voluntarily seek professional substance abuse assistance before any substance use or dependence affects job performance.
Any safety-sensitive employee who admits to a drug and/or alcohol problem will immediately be removed from his/her safety-sensitive function until successful completion of a prescribed rehabilitation program. Prior to participating in a safety-sensitive function, the employee must also undergo a DOT return-to-duty drug test with a verified negative result and/or a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02.
(d)
Confidentiality. All drug and alcohol test results shall be maintained in a confidential file, separate and apart from the employee's regular personnel file. Any medical-related information will be confidential and accessible only to parties who have a direct and relevant need for the information and only upon approval by the human resources department.
(e)
Inspections. The city reserves the right to inspect all portions of its premises for drugs, alcohol or other contraband, upon reasonable suspicion of a violation of this policy or in the case of a "special need" for individuals in safety-sensitive positions. All employees, contract employees and visitors may be asked to cooperate in inspections of their persons, work areas and property that might conceal a drug, alcohol or other contraband. Employees who possess such contraband or refuse to cooperate in such inspections may be subject to appropriate discipline, up to and including termination.
(Ord. No. 2018-27, § 1, 10-2-2018)