[HISTORY: Adopted by the Board of Trustees of the Village of New Hyde Park 5-23-1996. Amendments noted where applicable.]
The United States Department of Transportation (DOT) has issued regulations pursuant to the Omnibus Transportation Employee Testing Act of 1991 (the Act), which govern the use of drugs and alcohol by commercial motor vehicle drivers and which also require the Village to conduct mandatory drug and alcohol testing of covered drivers. The regulations require testing to begin on January 1, 1996. It is the Village's intention to comply fully with the law and with DOT's regulations governing drug and alcohol use and testing. In the event that DOT's regulations are amended, the Village reserves the right to apply the amended requirements immediately.
The Superintendent of Public Works or a designee shall:
Adopt any work rules necessary to implement this policy and comply with the Act and DOT regulations;
Also develop drug and alcohol testing educational material that complies with federal regulations for distribution to covered employees;
Provide written notice to the union of any change in this policy;
Arrange for training of all supervisors to allow them to determine whether reasonable suspicion exists to test an employee for alcohol misuse or illegal drugs; and
Provide for an informal appeal process, whereby an employee may appeal a positive test.
Any violation of this policy, the law or DOT regulations by an employee shall be grounds for disciplinary action, up to and including discharge in a manner consistent with the negotiated labor agreement.
Drug and alcohol testing will be conducted on any current and/or prospective driver, who may be required to operate a commercial motor vehicle, as defined by the DOT.
All applicants for a position as a driver of a commercial motor vehicle, regardless of whether they are new applicants or current employees, will be notified of the Village's drug and alcohol testing policy at the time they apply for a covered driver position with the Village and that any offer of employment as such driver will be conditioned on their compliance with it.
As used in this chapter, the following terms shall have the meanings indicated:
- The intoxicating agent in beverage alcohol, ethyl alcohol or other low-molecular weight alcohols, including methyl and isopropyl alcohol.
- ALCOHOL CONCENTRATION OR CONTENT
- The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test.
- ALCOHOL USE
- The consumption of any beverage, mixture or preparation, including any medication, containing alcohol.
- Commercial driver's license.
- A. A motor vehicle or combination of motor vehicles that operates at normal highway speeds and has:
- CONFIRMATION TEST
- For alcohol testing, a second test, following a screening test with a result of 0.02% or greater, that provides quantitative data of alcohol concentration. For urine testing, a "confirmation test" means a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the initial test. Such a test is one ordered and paid for by the employee by contacting the lab which performed the initial test and requesting that a urine sample be sent to a lab sought by the employee.
- COVERED EMPLOYEE
- For the purpose of this policy, "covered employee" means
any person who is retained by the Village to drive a commercial or
other motor vehicle or operate mechanical equipment under the direction
and/or supervision of the Village for compensation paid by the Village.
Such compensation may be salary paycheck issued by the Village or
by voucher submitted to the Village for payment. The term "covered
employee" as used in this policy shall be synonymous with the term
"employee" as used in this chapter.[Added 2-3-2015 by L.L. No. 1-2015]
- Any employee required by federal law and regulation to possess a CDL in order to operate a commercial vehicle as defined by federal law and regulation. For the purposes of preemployment/preduty testing only, the term "driver" includes a person applying to the Village to drive a commercial motor vehicle.
- A. These activities by an employee who holds a federally required CDL:
- Any substance currently or hereafter listed on Schedule I of Appendix D to Subchapter B of Title 49 of the Code of Federal Regulations or other substance identified in Schedule I.
- MEDICAL REVIEW OFFICER (MRO)
- A licensed physician responsible for receiving laboratory results generated by the Village's drug testing program, who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result, together with his or her medical history and any other relevant biomedical information.
- ON-DUTY TIME
- All time from the time a driver begins to work or is required to be in readiness to work until the time he or she is relieved from work and all responsibility for performing work. "On-duty time" shall also include all time spent traveling to and participating in either a drug or alcohol test when it is pursuant to a random, reasonable suspicion, postaccident or followup test as directed by or on behalf of the Village.
- A. That a driver:
- (1) Fails to provide adequate breath for testing without a valid medical explanation after the driver has received notice of the requirement for breath testing in accordance with the provisions of this policy;
- (2) Fails to provide adequate urine for testing without a valid medical explanation after he or she has received notice of the requirement for urine testing, in accordance with the provisions of this policy; or
- (3) Engages in conduct that clearly obstructs the testing process.
- SCREENING TEST (ALSO KNOWN AS THE "INITIAL TEST")
- In alcohol testing, an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system. In urine testing, it means a screening to eliminate negative urine specimens from further consideration.
- SUBSTANCE ABUSE PROFESSIONAL (SAP)
- A licensed physician, a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission) with knowledge and/or clinical experience in the diagnosis and treatment of alcohol- and drug-related disorders.
The Village is required to conduct drug and alcohol tests:
Preemployment and preassignment (drug tests only);
Following certain accidents;
On a random basis;
Upon a reasonable suspicion;
Upon a return to duty after engaging in conduct that is illegal under the Act or under regulations issued pursuant to it; and
Periodic followup testing for individuals engaging in conduct that is illegal under the Act or under regulations issued pursuant to it.
Any applicant, required to be tested under federal law, who refuses or fails to submit to a test as directed will not be considered for employment with the Village. A current worker who applies for a driver position and who refuses or fails to submit to a drug test as directed or whose result is positive for the drug test may be subject to discipline up to and including discharge.
To ensure the integrity and accuracy of each test, all specimen collection, analysis and laboratory procedures shall be conducted in accordance with DOT rules. This includes, among other things:
Procedures to ensure the correct identity of each driver at the time of testing;
A chain-of-custody procedure to protect a driver's urine specimen;
The use of split urine samples to allow for a verification of an initial positive test;
The use of a trained breath alcohol technician (BAT) and DOT-approved testing devices for conducting alcohol tests;
The use of a federally approved lab as selected by the Village or by a contractor that may be retained by the Village to perform testing;
The confirmation of an initial positive urine test by a second test;
The confirmation of an initial positive breath test by a second test; and
The Village's appointment of a qualified MRO to review urine test results.
For alcohol tests:
In the event that an initial breath test registers an alcohol concentration level that is less than 0.02%, the test will be reported as a negative and no additional test will be required at that time.
In the event that an initial breath test yields a result of 0.02% or greater, a second confirmatory test will be performed. In the event that the confirmatory test registers less than 0.02%, the test result will be reported to the Village as negative. Any driver whose confirmatory test registers 0.02% or more but less than 0.04% will be prohibited from driving until the next regularly scheduled duty period but for no less than 24 hours after the test is given. Such a driver may also be subject to additional disciplinary action by the Village.
A driver who has a confirmatory test which registers 0.04% or greater will, at a minimum, be suspended from all driving functions until federal regulations are satisfied so as to allow a return to work and will be subject to a disciplinary penalty as provided for in § 13-9, entitled "Penalties for offenses," in this statement of policy.
For drug tests: Before a urine test result will be confirmed to the Village as positive for illegal drugs, the driver will be contacted by the Village's MRO and will be given the opportunity to demonstrate that there was a legitimate medical explanation for the positive test result. If the MRO determines that a legitimate medical reason does exist, the test result will be reported to the Village as negative. If the MRO determines that a legitimate medical reason for a positive result does not exist, the test result will be reported to the Village as a positive. A driver who is informed by the MRO that a positive has resulted will have 72 hours to request that the MRO send the split sample to a second approved lab. The cost of the second test shall be paid by the driver. Pending the outcome of the second test, the driver will be prohibited from driving.
A driver for the Village will not:
Report for duty or remain on duty requiring the performance of driving functions while the driver has an alcohol concentration of 0.04% or greater;
Possess any amount of alcohol (including alcohol found in medications, food or other alcohol-containing products) while on duty or operating a commercial motor vehicle;
Use alcohol at any time while performing any driving function;
Use alcohol within four hours prior to performing any driving function;
Use alcohol for eight hours following an accident or until the driver undergoes a postaccident alcohol test, whichever occurs first;
Refuse to submit to an alcohol or urine test;
Consume alcohol when notified of or informed of being on call;
Report for duty or remain on duty when required to drive when the driver uses any drug, except when the use is pursuant to the instructions of a physician who has advised the driver that the drug does not adversely affect the driver's ability to safely operate commercial motor vehicle; or
Report for duty, remain on duty or perform driving functions when testing positive for drug.
A driver, other than applicants for covered driving positions, who violates any of these prohibitions will be subject to the actions mandated by the DOT and will also be subject to disciplinary action, up to and including discharge. Any action taken by the Village which is mandated by federal law or regulation shall not in any way be deemed to be disciplinary in nature. For those employees who need a CDL in order to perform work duties, the Village considers the CDL to be a qualification for employment. In the event that an employee is relieved of work duties as a result of a violation of federal regulations or this policy, the employee will not be assigned other work during a mandated absence. Appropriate accrued paid leave, if any, may be taken to permit an employee who is removed from work duties to remain in a full-pay status. An employee who tests positive for drugs a second time will be will be subject to a disciplinary penalty as provided for under § 13-9, entitled "Penalties for offenses," in this statement of policy.
Any driver engaging in conduct prohibited under the Act or under regulations issued pursuant to it shall not drive. Any driver with a positive urine test or a breath alcohol test of 0.04% or greater must satisfy any return-to-duty requirements and referral, evaluation and treatment program prescribed by a SAP as required by federal regulations before the driver may be permitted to drive. All costs associated with evaluation, treatment and repeat testing shall be borne by the driver.
Any driver engaging in conduct prohibited by federal law or regulation or this policy will be subject to disciplinary action by the Village, such penalties to be as provided for in § 13-9, entitled "Penalties for offenses," in this statement of policy. A driver whose urine test result is positive will also be subject to civil and criminal penalties imposed by DOT.
Each driver who tests positive shall be advised by the Village of the resources available to the driver in evaluating and resolving problems with alcohol or controlled substance use, as the case may be, including the names, addresses and telephone numbers of SAP's and counseling and treatment programs. In some instances, such programs may be available from the individual's health insurance provider.
Federal statute states that the employee is prevented from working until he tests negative.
The employee must enroll in a rehabilitation program, at the employee's own expense.
The employee will be given a warning letter.
The employee will receive no compensation from the employer. Accumulated sick time may be used and paid at his prevailing rate. No vacation nor personal time may be used.
Third offense. The penalty shall be immediate dismissal.
Upon testing positive, a driver may file an appeal with the Superintendent or other individual as may be designated by the Village by submitting written notice of the grounds for an appeal within five calendar days after the employee receives notice of the test result from the MRO. Following receipt of an employee's notice of appeal, the Superintendent shall offer the employee an opportunity to be heard. The employee may be accompanied by a representative, whose role in the hearing shall be solely to advise the employee as to his or her rights or responsibilities. Pending the resolution of the appeal, no disciplinary action shall be taken. However, actions which the Village is required to take under federal law or regulation shall not be deemed to be discipline.
The Superintendent shall provide the employee with a written decision. In deciding an appeal from a positive breath or urine test result, the Superintendent shall take into account the original test result, any retesting done by the employee at the employee's expense and any other pertinent information that the employee or Village may provide. In deciding an appeal from a positive drug test result, the Superintendent shall also take into account any test results pertaining to the split sample.
An employee tested for drugs must contact the Superintendent daily while awaiting the results of the test and must also advise the Superintendent of his or her whereabouts and provide a telephone number where he or she may be reached during time away from work. An employee who refuses to do so or fails to contact the Superintendent will be considered insubordinate and subject to disciplinary action.
Each employee will be provided with educational material and information concerning:
In the event of a false positive error, the Village shall follow the procedures mandated by federal regulations.
The results of all individual drug and alcohol tests will be kept in a secure location with controlled access. All individual test results are confidential. The release of an individual driver's results will only be given in accordance with the employee's written authorization or as is otherwise required by federal law or regulation.
[Amended 2-3-2015 by L.L. No. 2-2015]
The contact list shall be as follows: