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Town of Massena, NY
St. Lawrence County
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Table of Contents
Table of Contents
[Adopted 12-27-1995]
The purpose of this resolution shall be as follows:
A. 
To establish a municipal alcohol and drug testing program to help prevent accidents and injuries resulting from the misuse of alcohol and drugs by covered drivers of commercial motor vehicles in compliance with the Department of Transportation regulations codified at 49 CFR Parts 40 and 382 and pursuant to the Omnibus Transportation Employee Testing Act of 1991, enacted October 28, 1991.
B. 
To establish rules and procedures to deter all illegal drug use and deter on-duty, preduty and postaccident alcohol use, as well as on-duty alcohol impairment stemming from preduty use, for all employees who perform safety-sensitive functions.
C. 
To detect and eliminate the possibility that municipal employees will perform safety-sensitive functions after testing positive for alcohol or drugs.
D. 
To comply with applicable federal and state laws, including the Omnibus Transportation Employee Testing Act of 1991.
E. 
To provide reasonable measures for the early detection of personnel not fit to perform activities within the scope of this policy.
F. 
To maintain a workplace free of drugs and alcohol.
G. 
To inform employees, through education, in-service training and other appropriate forums, about illegal drugs and alcohol abuse, their use, possession and distribution and the effects of such substances.
This policy applies to all municipal employees who operate commercial motor vehicles and are subject to the commercial driver's license (CDL) requirements established by the DOT. This also includes all MEO and wing men operators.
There are several occasions when an individual will be subject to drug and alcohol tests pursuant to this policy. Prior to the administration of the following tests, the municipality or its testing agent will notify the employee that the test is required under the Code of Federal Regulations. The testing occasions shall include:
A. 
Preduty testing. Preduty testing is testing for alcohol and drugs that the municipality will administer after a conditional offer of employment has been extended and prior to any employee's performance of a safety-sensitive function. The municipality will not allow any employee to commence the performance of any safety-sensitive function unless the alcohol testing reveals an alcohol concentration of less than .02 and the drug testing reveals a verified negative test result. If the preduty alcohol test reveals an alcohol concentration of .02 or greater, it will result in a revocation of the conditional offer of employment. Also independent of the Omnibus Transportation Employee Testing Act of 1991 and the regulations thereunder, if the preduty drug testing reveals a presence of drugs, it will result in the revocation of the conditional offer of employment. The municipality may, in its sole discretion, forgo preduty testing where the exceptions promulgated at DOT 49 CFR Part 382.301(b) or (c), relating to drug and alcohol testing of employees by their previous employers, are satisfied and also forgo preduty testing in the event of an emergency or severe storm where extra help is needed immediately.
B. 
Reasonable-suspicion testing.
(1) 
Reasonable-suspicion testing is alcohol and drug testing that the municipality will conduct when it has reasonable suspicion to believe that an employee has engaged in conduct prohibited by this policy. (Reasonable-suspicion testing will not be conducted based upon the suspicion that an employee has violated the provision of this policy prohibiting employees from being on-duty or operating commercial motor vehicles while the employee possesses unmanifested alcohol.) Reasonable suspicion must be based upon specific, contemporaneous, articulate observations concerning the appearance, behavior, speech or body odors of an employee by a district supervisor who is specially trained to recognize alcohol misuse or drug use.
(2) 
The municipality shall not administer a reasonable-suspicion alcohol test more than eight hours following a determination that reasonable suspicion exists to believe that the alcohol prohibitions of this policy have been violated. Notwithstanding the absence of a reasonable-suspicion alcohol test, the municipality will not permit any employee to report for duty or remain on duty requiring the performance of a safety-sensitive function while the employee is under the influence of or impaired by alcohol as shown by the behavioral, speech and performance indicators of alcohol misuse, until an alcohol test is administered and the employee's alcohol concentration measures less than .02 or 24 hours have elapsed following a determination that reasonable suspicion exists to believe that the alcohol prohibitions of this policy have been violated.
(3) 
A written record shall be made of observations leading to reasonable suspicion, signed by the supervisor or person who made the observations, within 24 hours of the observed behavior or before the results of the drug test are released, whichever is earlier.
(4) 
Employees are subject to reasonable-suspicion alcohol testing as follows: immediately prior to performing safety-sensitive functions, while performing safety-sensitive functions or immediately following the performance of safety-sensitive functions. Reasonable-suspicion drug testing may be conducted at any time the employee is on duty for the municipality.
C. 
Random testing.
(1) 
Random testing is unannounced testing for alcohol and drugs administered in a statistically random manner throughout the year to employees employed by the municipality in ratios as required by the DOT regulations, so that all employees have an equal probability of selection each time a random test is administered.
(2) 
Employees are subject to random alcohol testing as follows: immediately prior to performing safety-sensitive functions or while performing safety-sensitive functions or immediately following the performance of safety sensitive functions. Random drug testing may be conducted at any time the employee is on duty for the municipality.
D. 
Postaccident testing.
(1) 
A postaccident test is a test for alcohol and drugs administered following an accident involving a commercial motor vehicle to each surviving employee:
(a) 
Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life.
(b) 
Who receives a citation under state or local law for a moving violation arising from the accident.
(c) 
If the accident resulted in one or more motor vehicles incurring disabling damages as a result of the accident requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle.
(d) 
If the accident resulted in bodily injury to a person who as a result of the injury immediately receives medical treatment away from the scene of the accident.
(2) 
The municipality will not administer a postaccident alcohol test more than eight hours following the accident and will not administer a postaccident drug test more than 32 hours following the accident. An employee who is subject to postaccident testing shall remain readily available for such testing or may be deemed by the municipality to have refused to submit to testing. This shall not be construed to require the delay of necessary medical attention for injured individuals following an accident or to prohibit an 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.
E. 
Return-to-duty testing. Return-to-duty testing is alcohol and drug testing conducted after an employee has engaged in prohibited conduct under this policy and completed counseling prescribed by a substance abuse professional, if any; and prior to his return to the performance of a safety-sensitive function, he/she must undergo return-to-duty testing with an alcohol test result indicating an alcohol concentration of less than .02 and/or a drug test indication a verified negative result for illegal drugs. The expense of the counseling and return testing is to be paid by the employee.
F. 
Follow-up testing.
(1) 
Follow-up tests are given following a determination by the substance abuse professional (SAP) that an employee is in need of assistance in resolving problems associated with misuses of alcohol and/or drugs. This is an unannounced test, given at least six times within 12 months with the actual frequency and number of tests determined by the substance abuse professional (SAP), but in no event may the follow up testing continue for a period beyond 60 months from the employee's return to duty. The substance abuse professional may terminate the requirement of follow-up testing at any time after the first six tests have been administered it he/she determines that follow-up testing is no longer necessary. All cost associated with the follow-up testing is up to the employee.
(2) 
Employees are subject to follow-up alcohol testing as follows: immediately prior to performing safety-sensitive functions or while performing safety-sensitive functions or immediately following the performance of safety sensitive functions. Follow-up drug testing may be conducted at any time the employee is on duty for the municipality.
A. 
Alcohol.
(1) 
Alcohol testing will be administered by a breath alcohol technician (BAT) who has completed the equivalent of the DOT's model course, as determined by the National Highway and Traffic Administration, and who is trained in utilizing an evidential breath testing device (EBT) that conforms to the DOT requirements. The EBT used for testing shall meet the standards promulgated by the DOT and have a quality assurance plan (QAP) developed by the manufacturer to ensure proper calibration. Testing will be conducted in a location that affords visual and aural privacy to individuals being tested.
(2) 
If the initial test reveals an alcohol concentration of .02 or greater, a confirmatory test must be performed. The confirmatory test result is the final test result for the purposes of this policy. If the final test result reveals an alcohol concentration greater than .02 but less than .04, the employee will be suspended from performing safety-sensitive functions for at least eight hours and will not return to work until the next scheduled shift. If the alcohol concentration is .04 or greater, the employee will be suspended from the performance of safety-sensitive functions for an indefinite period.
B. 
Drugs.
(1) 
A Department of Health and Human Services certified laboratory will perform drug testing on urine samples provided by employees. The drugs for which tests will be conducted are:
(a) 
Marijuana (THC).
(b) 
Cocaine.
(c) 
Phencyclidine (PCP).
(d) 
Opiates.
(e) 
Amphetamines.
(2) 
The cutoff level for these drugs will be those set forth in the DOT regulations.
(3) 
The municipality will contract with the certified laboratory to ensure that the collection, shipment, testing and chain of custody procedures ensure the integrity of the testing process in accordance with the procedures set forth in the regulations.
(4) 
The split-sample urine testing will be utilized. This method requires that the urine specimen be divided into two samples providing one sample for preliminary screening and initial confirmation and a second sample for the second test if needed at a later date. Independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, the municipality requires that the cost for testing this split sample will be the employees responsibility if the employee elects to have the second sample tested.
(5) 
The MRO will conduct a final review of all positive test results to assess possible alternative medical explanations for the positive test results. (For an in-depth explanation of the drug testing procedures, please refer to Appendix B Department of Transportation 49 CFR Part 40 Subpart B.)
C. 
Alcohol and drugs.
(1) 
The municipality will ensure that alcohol and drug test information is maintained in a confidential manner in conformity with the Department of Transportation Rule 49 CFR Part 40.
(2) 
The municipality will ensure that all contracts between the municipality and any other entity involved in the alcohol and drug testing program will comply with the procedures set forth in the Department of Transportation Rule 49 CFR Part 40.
(3) 
The municipality will conform to the requirements in the Department of Transportation 49 CFR Part 40 in all aspects.
D. 
Uncompleted testing. If a screening or confirmation test cannot be completed or if an event occurs that would invalidate the test, the BAT shall, if practicable, begin a new screening or confirmation test, as applicable, e.g., using a new breath alcohol testing form with a new sequential test number (in the case of a screening test conducted on an EBT that meets the requirements of Part 40.53(b) or in the case of a confirmation test).
An employee shall not refuse to submit to a postaccident alcohol or drug test required under this policy, a random alcohol or drug test required under this policy, a reasonable-suspicion alcohol or drug test required under this policy or a follow-up alcohol or drug test required under this policy. The municipality will not permit any employee to perform safety-sensitive functions subsequent to a refusal to submit to a test required under the policy until the individual is evaluated by a substance abuse professional and completes a substance abuse program designed by a substance abuse professional, if any, and undergoes a return-to-duty alcohol test revealing an alcohol concentration of less than .02 and drug test with a verified negative result. In other words, a refusal to submit to testing is the equivalent of an alcohol test revealing an alcohol concentration of .04 or greater or a drug test with a positive result. A refusal to be tested shall be defined as a refusal by an employee to complete and sign the breath alcohol testing form or to complete the drug screening chain of custody form, to provide breath, to provide an adequate amount of breath, to provide an adequate amount of urine or otherwise to cooperate with the testing process in a way that prevents the completion of the test. The BAT or collector shall record such refusal in the remarks section of the form. The testing process shall then be terminated and the BAT or collector shall immediately notify the municipality.
A. 
Alcohol.
(1) 
No employee shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of .02 or greater. The municipality shall not permit an employee to perform or continue to perform safety-sensitive functions if it has actual knowledge that an employee has an alcohol concentration of .02 or greater.
(2) 
An employee shall not be on duty or operate a commercial motor vehicle while the employee possesses alcohol, unless the alcohol is manifested and transported as part of a shipment. The municipality shall not permit an employee to drive or continue to drive a commercial motor vehicle if it has actual knowledge that an employee possesses unmanifested alcohol.
(3) 
An employee shall not use alcohol while performing safety-sensitive functions. The municipality shall not permit an employee to perform or continue to perform safety-sensitive functions if it has actual knowledge that an employee is using alcohol while performing safety-sensitive functions.
(4) 
No employee shall perform safety-sensitive functions within four hours after using alcohol. The municipality shall not permit an employee to perform or continue to perform safety-sensitive functions if it has actual knowledge that an employee has used alcohol within four hours.
(5) 
An employee required to take a postaccident alcohol test shall not use alcohol for eight hours following the accident or until he/she undergoes a postaccident alcohol test, whichever is first.
(6) 
Consequences of positive alcohol test. Independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, employees who have been found to have violated the prohibited conduct under this policy shall be subject to the following: A failure to observe and abide by these policies will lead to discipline, including discharge.
B. 
Drugs.
(1) 
An employee shall not report for duty or remain on duty requiring the performance of safety-sensitive functions when the employee is using drugs, except when the use is pursuant to the instructions of a physician who has advised the employee that the drug does not affect the employee's ability to safely operate a commercial motor vehicle. The municipality shall not permit an employee to report for duty or remain on duty requiring the performance of safety-sensitive functions if the municipality has actual knowledge that the employee is using drugs, except when the use is pursuant to the instructions of a physician who has advised the employee that the drug does not affect the employee's ability to safely operate a commercial motor vehicle.
(2) 
Independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, the employee must notify the municipality that he/she is using controlled substances pursuant to the instructions of the physician who has advised the employee that the substance does not adversely affect the employee's ability to safely operate a commercial motor vehicle.
(3) 
Consequences of a positive drug test. A failure to observe and abide by these policies will lead to discipline, including discharge.
A. 
The municipality shall make available to the employee information regarding the resources available for evaluating and resolving problems associated with the misuse of alcohol and use of drugs, including the names, addresses and telephone numbers of substance abuse professionals and counseling and treatment programs.
B. 
The municipality requires that each employee who engages in conduct prohibited by this policy shall be evaluated by a substance abuse professional, who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and drug use. The cost associated with this evaluation shall be the responsibility of the employee. All costs for return-to-duty and follow-up testing will be the employee's responsibility also.
C. 
Each employee identified as needing assistance in resolving problems associated with alcohol misuse or drug use shall:
(1) 
Be evaluated by a substance abuse professional to determine if the employee has properly followed any rehabilitation program prescribed under Subsection B of this section.
(2) 
Be subjected to unannounced follow-up alcohol and drug tests administered by the municipality following the employee's return to duty. The number and frequency of the follow-up tests shall be as directed by the substance abuse professional and consist of at least six tests in the first 12 months following the employees return to duty. The municipality may direct the employee to undergo return-to-duty and follow-up testing for both alcohol and drugs, if the substance abuse professional determines that return-to-duty and follow-up testing or both alcohol and drugs is necessary for that particular employee. Such testing shall be in conformance with this policy and the DOT regulations. Follow-up testing shall not exceed 60 months from the date of the employee's return to duty. The substance abuse professional may terminate the requirement at any time after the first six tests have been administered, if the substance abuse professional determines that such testing is no longer necessary.
(3) 
The evaluation and rehabilitation may be provided by the municipality by a substance abuse professional under contract with the municipality or by a substance abuse professional not affiliated with the municipality. The choice of a substance abuse professional shall be that of the municipality, and costs affiliated with evaluation and treatment shall be the responsibility of the employee.
(4) 
The municipality requires that a substance abuse professional, who determines that an employee requires assistance in solving problems with alcohol misuse or drug use does not refer the employee to the substance abuse professionals private practice or to a person or organization from which the substance abuse professional has a financial interest.
(5) 
The requirements of this section with respect to referral, evaluation and rehabilitation do not apply to applicants who refuse to submit to a preduty alcohol or drug test or who have a preduty alcohol test with a result indicating an alcohol concentration of .04 or a drug test with a verified positive test result.