[HISTORY: Adopted by the Town Board of the
Town of Concord 12-11-1995. Amendments noted where applicable.]
The Town of Concord recognizes that the use
and/or abuse of alcohol or controlled substances by drivers of commercial
vehicles presents a serious threat to the safety and health of employees
and the general public. It is the policy of the Town of Concord that
its drivers should be free of drugs and alcohol. In order to further
its goal of obtaining a drug-free and alcohol-free workplace and to
be in compliance with the Omnibus Transportation Employee Testing
Act of 1991, the Town of Concord has implemented a drug and alcohol
testing program which is designed to help reduce and avoid traffic
accidents and injuries to its employees and the public, to discourage
substance and alcohol abuse and to reduce absenteeism, accidents,
health care costs and other drug and alcohol-related problems.
The Department of Transportation (DOT) and the
Federal Highway Administration (FHWA) has issued Federal Regulations
(49 CFR Parts 40 and 382) implementing the provisions of the Federal
Omnibus Transportation Employee Testing Act of 1991 which requires
alcohol and controlled substance testing of drivers who are required
to have a commercial driver's license. These regulations include detailed
procedures for urine drug testing and breath alcohol testing of employees
in safety-sensitive positions. Consequently, the Town of Concord has
established the following programs as well as the subsequent enforcement
of violations for its employees conducting driver functions.
For purposes of this policy, the Town of Concord
and the DOT strictly prohibit the use of alcohol and/or controlled
substances by its employees ready to perform or ceasing to perform
the following safety-sensitive job functions:
A.
Town of Concord policy and federal regulations prohibit
employees from engaging in the following conduct:
(1)
Using, possessing, dispensing, distributing or receiving
alcohol, intoxicants, illegal drugs or other controlled substances
on Town of Concord premises, or while engaged in Town of Concord business.
(2)
Reporting to work under the influence or with any
measurable amount of alcohol, intoxicants, illegal drugs, or other
controlled substances in his or her system.
(3)
Reporting to work under the influence of a prescription
drug, unless the employee's physician determines that the use of the
prescription drug will not adversely affect the employee's ability
to perform a safety-sensitive position. Note that the federal regulations
include prescription medications containing alcohol in the substances
banned from use in the workplace. Therefore, employees should not
report for duty while taking prescription medication if such medication
contains any measurable amount of alcohol.
(4)
Consuming any amount of alcohol, while on duty or
within four hours of reporting for duty.
(5)
Refusing to undergo or cooperate in any alcohol or
drug testing required by this policy.
(6)
Deliberately misusing the policy in regard to subordinates.
(7)
Providing false information in connection with a test,
or being suspected of falsifying test results through tampering, contamination,
adulteration or substitution.
B.
Any employee who violates any of the rules set forth
above is subject to discipline, up to and including discharge.
Safety-sensitive employees may not consume alcohol:
A.
Within four hours before performing a safety-sensitive
function;
B.
While performing a safety-sensitive function;
C.
After a fatal accident unless the employee has been
tested or eight hours have elapsed from the actual time of the accident;
or
D.
After a nonfatal accident unless the employee's involvement
can be completely discounted as a contributing factor to the accident,
the employee has been tested or eight hours have elapsed from the
actual time of the accident.
The unauthorized use of any controlled substance
is strictly prohibited in all situations.
A.
Refusal to take a required test will result in removal
of that employee from his or her assignment(s) which, in turn, may
result in discipline up to and including discharge.
B.
Testing must be conducted in the following situations:
(1)
Preemployment.
(a)
Any individual not currently employed by the
Town of Concord who is applying for a safety-sensitive position shall
be required to undergo a drug test after a conditional offer of employment
has been made.
(b)
Prior to the first time an existing employee
performs safety-sensitive functions for the department (i.e., new
position, job transfer, promotion, new duties, etc.), the employee
shall be required to undergo testing for alcohol and controlled substances.
A positive test will result in a disqualification from further consideration
for the vacancy or eligibility list. Any applicant or existing employee
who refuses to undergo such drug testing will also be disqualified
from further consideration for the vacancy or eligibility list.
(2)
Reasonable suspicion testing.
(a)
In a situation where an employee is either acting
in an impaired manner or the supervisor has reasonable suspicion to
believe the employee is using or is under the influence of alcohol
or drugs, the supervisor may order the employee to undergo a drug
and/or alcohol test. The supervisor may, but need not, seek a corroborating
opinion from another supervisor prior to immediately removing the
employee from the job and sending the employee for drug and alcohol
testing. NOTE: "Reasonable suspicion" means suspicion based on a specific,
contemporaneous, personal observation by a trained supervisor or another
Town of Concord official, that can be described regarding the appearance,
behavior, job performance, speech or breath or body odors of an employee.
Reasonable suspicion drug or alcohol testing will only occur under
these rules if the supervisor's observations are made during, just
before or just after the time the employee is performing work in a
safety-sensitive position. It may also mean receipt of information
about an employee's impaired behavior from alcohol or drug use from
a reliable source that has been substantiated by a trained supervisor.
(b)
A supervisor is to then transport the employee
to the collection site for drug and/or alcohol testing immediately,
but no later than eight hours after having observed the behavior.
If the drug or alcohol test is conducted more than two hours, but
less than eight hours, after the supervisor determines there is a
reasonable suspicion to believe the employee is under the influence
of alcohol or controlled substances, the supervisor will complete
a report explaining the reason for the delay in conducting the drug
or alcohol test. The supervisor is to wait at the clinic with the
employee until the breath alcohol test has been completed or the urine
sample has been taken.[1]
(c)
Once the alcohol testing has been completed
and a positive confirmatory test result has been received (0.04% or
above), the employee will not be permitted to drive his/her own vehicle
home at that time. The employee must make alternative transportation
arrangement in order to leave the collection site or employment site.
(d)
The employee is to be advised not to report
for work as s/he will be placed on suspension without pay. If a blood
alcohol or urine test has been administered, the Town of Concord will
contact the employee once the test results are known (this normally
takes 24 to 48 hours) and a decision has been made as to the employee's
status.
(e)
The results of the drug or alcohol testing will
be sent directly to the Town Supervisor. When the results are obtained,
the employee's supervisor and department head will meet with the Town
Supervisor to determine the appropriate course of action to be taken.
This is a confidential process. Test results will be held strictly
confidential and are not to be discussed or shared with anyone who
does not need to know. Likewise, a supervisor must not discuss the
suspected reason for a referral or discipline action with anyone who
does not need to know.
(f)
Once the test has been completed and the employee
has been sent home, the supervisor must submit a written report to
the Town Supervisor outlining, in detail, the event and the behavior
observed that led the supervisor to believe the employee was under
the influence of alcohol and/or drugs.
(3)
Random testing.
(a)
This test is used to order to eliminate risks
associated with illegal or unauthorized drug and alcohol use. Random
alcohol and drug testing will be conducted just before, during, or
just after an employee's performance of safety-sensitive duties. The
employee will be randomly selected for testing from a pool of employees
subject to testing. The testing dates and time are unannounced and
will occur with unpredictable frequency throughout the year.
(b)
The minimum annual percentage rate for random
alcohol testing shall be 25% and the minimum annual percentage rate
for random drug testing shall be 50% of the average number of employees
in safety-sensitive position. For example, if the Town of Concord
has 64 employees who are required to submit to testing, and DOT regulations
specify that random testing will be performed at a rate of 50%, then
32 employees must be tested each year, which translates into five
employees per month, or eight quarterly.
(c)
The Town of Concord reserves the right to either
increase or decrease the minimum annual percentage rate for random
alcohol and drug testing based upon the reported violation rate for
the entire commercial vehicle industry as determined by the Federal
Highway Administration and the federal regulations implementing drug
and alcohol testing in the transportation industry.
(d)
The selection of employees for random testing
shall be administered by Healthworks using a scientifically valid
method. This method will be a computer software-based random selection
program that is matched with employee social security numbers. A monthly
list of confidential numbers will be generated and forwarded to the
Town Supervisor in order that it may contact the employee's supervisor
for testing arrangement. Under this selection process, each employee
will have an equal chance of being testing each time selections are
made. As a result, some employees may be tested more that once each
year, while other employees may not be tested at all.
(e)
In the event that an employee tests positive
for either alcohol or controlled substances, the employee will be
subject to disciplinary action up to and including discharge.
(4)
Post-accident testing.
(a)
As soon as practicable following an accident
involving a commercial motor vehicle, the Town of Concord shall test
the safety-sensitive employees who may have contributed to an accident
for alcohol and controlled substances. These rules may require testing
even if the employee involved is not at fault. This testing will be
required if:
(b)
The alcohol breath test must be administered
within two hours following the accident and the drug test must be
administered within 32 hours of the accident.
(c)
An employee who is subject to post-accident
testing shall remain readily available for such testing or may be
deemed by the Town of Concord to have refused to submit to testing.
(5)
Return-to-duty/follow-up testing.
(a)
This test is used to maintain abstinence and
prevent relapse by employees during and after drug treatment. The
Town of Concord will ensure that before an employee returns to duty
requiring the performance of a safety-sensitive job function after
engaging in conduct prohibited in this policy, the driver shall undergo
a return-to-duty alcohol and/or controlled substance test with a result
indicating an alcohol concentration of less than 0.02% and a verified
negative result for controlled substance use. In any event, an employee
will not be allowed to return to duty without first having been evaluated
by the substance abuse professional (SAP) provider in order to determine
the employee's fitness-for-duty.
(b)
Following a determination that an employee is
in need of assistance in resolving problems associated with alcohol
misuse and/or use of controlled substances, the Town of Concord will
ensure that the employee is subject to unannounced follow-up alcohol
and/or controlled substances testing in consultation with a substance
abuse professional. Consequently, the employee will be given at lease
six random tests during the twelve-month period after returning to
duty with the possibility of follow-up testing for up to 60 months
after the employee returns to duty.
(6)
Voluntary testing. This testing provides an opportunity
for all employees (management, supervisory, and nonsupervisory) not
part of the random pool to demonstrate a commitment to the goal of
a drug and alcohol free workplace.
The Town of Concord has entered into an alcohol
and drug testing agreement with National MRO, the facility currently
used for medical services. Testing may be done on both urine and breath.
All drug and alcohol testing will be conducted in conformance with
the procedures and rules established by the Federal Omnibus Transportation
Employee Testing Act of 1991 and its implementing regulations. The
National Center for Forensic Science at 210 East Main Street, Concord
Medical Group, will handle taking the sample (in standard collection
kits) from the hours of 8:00 a.m. until 5:00 p.m. (Monday through
Friday) and EMSI will handle taking the sample on all other nonregular
business hours and days. Both health providers will be responsible
for seeing that the samples are sent to Smith Kline Beecham Laboratories
approved for screening and for assisting in the interpretation of
the results. Specimen collection is not to be done anywhere but at
Concord Medical Group or at EMSI unless specifically authorized by
the Town of Concord.
A.
Alcohol testing. Employees will be required to submit
to breath testing using an approved evidential breath testing (EBT)
device. A certified breath alcohol technician (BAT) will administer
an initial screening test. If the employee tests at 0.02 percent or
above for alcohol, then the BAT will conduct a confirmation test.
The Town of Concord will take action based only upon the positive
results of the confirmation test (0.02% or greater). All procedures
and steps used in conducting both the initial and confirmation tests
will be performed in conformance with the federal regulations.
(1)
Preparation for breath alcohol testing. The following
procedures summarize the procedures established by the Federal Highway
Administration regulations implementing drug and alcohol testing under
the federal law. These procedures are binding and are subject to change
in the event that the FHWA or other government agency changes the
regulations on drug and alcohol testing of employees in safety-sensitive
positions.
(a)
When the employee enters the collection site,
the BAT will require him or her to provide positive identification
(i.e., photo ID or employer identification).
(b)
The BAT will explain the test procedure.
(c)
Employees will be required to complete and sign
various forms used to document the testing process. Refusal to sign
the test form(s) will be regarded as a refusal to take the test.
(d)
Employees will be instructed to blow forcefully
into the mouthpiece until the EBT indicates that an adequate amount
of breath has been obtained.
(e)
If an employee tests positive during the screening
test, s/he shall not eat, drink, put any object or substance in his
or her mouth and, to the extent possible, not belch during the thirty-minute
waiting period before the confirmation test is conducted.
(f)
Refusal by an employee to complete and sign
the test form, to provide an adequate amount of breath without a valid
medical explanation or otherwise fail to cooperate with the testing
process in a way that prevents the completion of the test will be
considered a disciplinable offense, up to and including termination.
(g)
In the event of conflicting results between
the initial test and the confirmation test, the confirmation test
results will determine the outcome of the test.
(2)
Results of positive test.
(a)
Any employee who tests positive for alcohol
concentrations of 0.02 or higher is subject to discipline, up to and
including discharge.
(b)
If a confirmation alcohol test measures 0.04
or greater, the Town of Concord is required to:
[1]
Remove the employee from the safety-sensitive
position; and
[2]
Before returning the employee to employment:
[a]
Refer the employee to the substance abuse professional
(SAP) for assessment of an alcohol problem and a determination of
whether participation in a treatment program is necessary;
[b]
A substance abuse professional determines that
the employee has successfully completed any required rehabilitation;
and
[c]
Retest to verify that the employee's alcohol
concentration is below 0.02.
[3]
The employee will subsequently be given at least
six random tests during the next year with the possibility of follow-up
testing for up to 60 months.
(c)
If the confirmation test level is between 0.02
and 0.039 percent, the employee will be removed from the safety-sensitive
position and either be retested or removed from his/her position for
a minimum of 24 hours.
(d)
In the event that an employee is required to
comply with breath testing as a result of a law enforcement investigation,
the employee must submit to the examination. The test will be considered
enforceable for purposes of this policy.
B.
Controlled substances.
(1)
The Town of Concord has established its anti-drug program through its Drug-Free Workplace Policy which strictly prohibits the unlawful manufacture, distribution, dispensing, possession or unauthorized use of a controlled substance in the workplace. Furthermore, any abnormal conduct that may create a reasonable suspicion that an employee is under the influence of a controlled substance is addressed in the reasonable suspicion testing section described previously in this policy. [See § 157-7B(2).] For purposes of this policy, the Town of Concord will utilize, at a minimum, a five-panel drug screen consisting of the following drugs: tetrahydrocannabinol (marijuana drug); cocaine; amphetamines; opiates (including heroin); and phencyclidine (PCP). In instances where there is reason to believe an employee is abusing a substance other than the five drugs listed above, the Town of Concord reserves the right to test for additional drugs using standard laboratory testing protocols.
(2)
Drug testing is conducted by analyzing an employee's
urine specimen (through a Department of Health and Human Services
certified testing lab). This procedure will include use of a split
specimen testing procedure. Each urine specimen is subdivided into
two bottles labeled as a "primary" and a "split" specimen. Both bottles
will be sent to a certified lab. Only the "primary" specimen bottle
is opened and used for the urinalysis. The split specimen bottle remains
sealed and is stored at the lab. If the analysis of the primary specimen
confirms the presence of illegal, controlled substances, the employee
has 72 hours to request the split specimen be retested at the same
lab or be sent to another certified laboratory for analysis, at the
Town of Concord's expense. An employee who fails to notify the medical
review officer (MRO) within 72 hours (of receiving the results of
the positive test) of his/her desire to have the split specimen tested
shall be deemed to have waived his/her right to seek testing of the
split specimen.
(3)
Preparation for drug testing. The following procedures
summarize the procedures established by the Federal Highway Administration
(FHWA) regulations implementing drug testing under the federal law.
These procedures are subject to change in the event that the FHWA
or other government agency changes the regulations on drug and alcohol
testing of employees in safety-sensitive positions.
(a)
When the employee enters the collection site,
the employee will be required to provide positive identification (i.e.,
photo ID or employer identification).
(b)
The employee will be instructed to provide at
least 45 ml of urine under the split sample method of collection.
This will be done in a specifically designated "donor" bathroom.
(c)
The urine sample shall be divided into a primary
specimen (30 ml) and a split specimen (15 ml).
(d)
If the test result of the primary specimen is
positive, the employee may request within 72 hours that the MRO direct
that the split specimen be tested in the same or a different DHHS-certified
laboratory for presence of the drug(s) for which a positive result
was obtained in the test of the primary specimen.
(e)
An employee will be removed from the safety-sensitive
position pending the result of the test of the split specimen.
(f)
If the result of the test of the split specimen
fails to reconfirm the presence of the drug(s) or drug metabolite(s)
found in the primary specimen, the MRO shall cancel the test.
(g)
Employees will be required to complete and sign
various forms used to document the testing and chain of custody process.
Refusal to sign the test form(s) will be regarded as a refusal to
take the test.
(h)
Refusal by an employee to complete and sign
the test and chain of custody forms, to provide an adequate amount
of urine (to be decided on a case-by-case basis) or otherwise failure
to cooperate with the testing process in a way that prevents the completion
of the test will be considered grounds for disciplinary action, up
to and including discharge.
(i)
In the event of conflicting results between
the initial test and the confirmation test, the confirmation test
results will determine the outcome of the test.
(4)
Results of positive test. Any employee who tests positive
for controlled substances is subject to discipline, up to and including
discharge. As with an alcohol misuse violation, the Town of Concord
is required to act upon a positive drug test result in the following
manner:
(a)
Remove the employee from the safety-sensitive
position. This removal will only take place after the employee has
been allowed to meet or speak with a medical review officer (MRO)
in order to determine that the positive drug test did not result from
the authorized use of a controlled substance.
(b)
Refer the employee to the EAP for assessment
and subsequent compliance with recommended rehabilitation after a
determination of a drug problem has been made.
(c)
Employee must be evaluated by a substance abuse
professional (SAP) or MRO and determined to be fit to return to work
prior to their release of the employee.
(d)
Employee must have a negative result on the
return-to-duty drug test. Follow-up testing to monitor the employee's
continued abstinence from drug use may be required.
A.
Before performing work-related duties, employees must
notify their supervisor if they are taking any legally prescribed
medication, therapeutic drug or any nonprescription drug which carries
a warning label that indicates the employee's mental functioning,
motor skills or judgment may be adversely affected by the use of this
medication. A written report of this notification is to be filed by
the supervisor with the Human Resources Department. It is the responsibility
of the employee to inform his/her physician of the type of safety-sensitive
function that the employee performs in order that the physician may
determine if the prescribed substance could interfere with the safe
and effective performance of the employee's duties or operation of
Town equipment. However, as required by the federal regulations, any
employee who tests positive for alcohol will be removed from his/her
position, even though the reason for the positive alcohol test is
the fact that the employee's prescription medication contains alcohol.[1]
B.
A legally prescribed drug is one where the employee
has a prescription or other written approval from a physician for
the use of the drug in the course of medical treatment. The prescription
must include the patient's name, the name of the substance, quantity/amount
to be taken and the period of authorization. The misuse or abuse of
legal drugs while performing Town of Concord business is prohibited.
A.
The Town of Concord respects the confidentiality and
privacy rights of all of its employees. Accordingly, the results of
any test administered under this policy and the identity of any employee
participating in the EAP or other assessment or treatment program
will not be revealed to anyone except as required by law. The Town
of Concord will release an employee's records as directed by the express
written consent of the employee authorizing release to an identified
person. In addition, the Town of Concord will ensure that any lab
or agency used to conduct testing under this policy will maintain
the confidentiality of employee test records. However, the lab or
testing agency will disclose information related to a positive drug
or alcohol test of an individual to the individual being tested; the
Town of Concord; the decisionmaker in a lawsuit, grievance or other
proceeding by or on behalf of the individual which arises from any
action taken in response to a positive drug or alcohol test; or as
required by law, including court order or subpoenas.
B.
The medical review officer (MRO) will not reveal individual
test results to anyone except the Town of Concord, unless the MRO
has been presented with a written authorization from the tested employee.
The MRO may reveal to the Town of Concord, without an authorization,
relevant information as to whether the employee is qualified to perform
safety-sensitive functions or whether the employee has tested positive
for alcohol or a controlled substance, The Town of Concord will not
release the information on the employee's qualifications to perform
safety-sensitive functions to a third party without first obtaining
the tested employee's written authorization and consent, except to
the decisionmaker in a lawsuit, grievance or other proceeding by or
on behalf of the individual which arises from any action taken in
response to a positive drug or alcohol test; or as required by law,
including court orders or subpoenas.
C.
All records related to drug and alcohol tests of individual
employees will be maintained in individual files separate from the
employee's personnel file.
Any employee having questions with respect to
the scope of this policy and its contents may contact the Town Supervisor's
office.
