[Adopted 4-14-1997 by Ord. No. 6-1997]
As used in this article, the following terms
shall have the following meanings, unless the context clearly indicates
that a different meaning is intended:
The intoxicating agent in beverage alcohol, ethyl alcohol
or other low-molecular-weight alcohols, including methyl and isopropyl
alcohol.
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.
The consumption of any beverage, mixture or preparation,
including medication, containing alcohol.
The City of East Orange.
The primary contact person designated by the City to receive
all information and/or reports from the Medical Review Officer, the
Breath Alcohol Technician, the Substance Abuse Professional and the
laboratories. The CDR is also the designated contact person for inquiries
regarding this article.
Any of those substances listed under the New Jersey Controlled
Dangerous Substances Act (N.J.S.A. 24:21-1 et seq.).
All City of East Orange employees.
Any substance recognized as a drug in the official
United States pharmacopoeia and national formulary or official homeopathic
pharmacopoeia of the United States or any supplement to either of
them;
Any substance intended for use in the diagnosis,
cure, mitigation, treatment or prevention of disease or other conditions
in persons or other animals;
Any substance other than a device or food intended
to affect the structure or any function of the body of persons or
other animals; or
A method for determining the presence of drugs/controlled
substances in a urine sample or blood sampling using a scientifically
reliable method.
An alcohol and/or drugs/controlled substances test administered
to a covered employee who has violated the prohibitions of this article
and who has been permitted to return to duty after passing a return-to-duty
alcohol and/or drugs/controlled substances test.
Drugs for which the possession, use, sale or distribution
is unlawful pursuant to the laws of the State of New Jersey or any
federal law or regulation. Illegal drugs, for the purpose of this
article, include drugs which are not legally obtainable and drugs
which are legally obtainable but have been obtained illegally.
Any substance which produces changes in one's physical, mental
or emotional state or behavior, including but not limited to glue,
paint thinner, etc.
Having controlled substances which are not obtained either
directly from a doctor or pharmacist using a valid prescription, or
having controlled substances the possession or use of which is unlawful
pursuant to the laws of the State of New Jersey or any federal law
or regulation.
An alcohol and/or drugs/controlled substances test administered
to a covered employee as a result of a trained supervisor's or trained
City official's reasonable belief that the covered employee has violated
the drug, alcohol or controlled substances prohibitions of this article.
A reasonable suspicion determination must be based on specific, contemporaneous,
articulable observations concerning the appearance, behavior, speech
or body odors of the covered employee. The observations may include
indications of the chronic and/or withdrawal effects of drugs/controlled
substances or alcohol and any of the following:
Documentation of unsatisfactory work performance
or on-the-job behavior.
Evidence of the manufacture, distribution, dispensing,
possession or use of drugs/controlled substances, alcohol or other
prohibited substances.
Occurrence of a serious or potentially serious
accident that may have been caused by human error.
Fights (physical contact), assaults and flagrant
disregard or violations of established safety, security or other work
rules.
A covered employee fails to provide an adequate
amount of breath during testing without a valid medical explanation
after he or she has received notice of the requirement for breath
testing.
A covered employee fails to provide adequate
urine for drugs/controlled substances testing without a valid medical
explanation after he or she has received notice of the requirement
for urine testing.
A covered employee engages in conduct that obstructs
or interferes with the testing process.
A covered employee fails to be readily available
for post-accident testing.
A covered employee fails to report to and undergo
alcohol and drugs/controlled substances testing at a collection site
as required.
Any personal injury or property damage involving a City employee
that occurs on or off City-owned property during assigned work hours
or any time an employee is using a City-owned vehicle or wearing a
City uniform.
An alcohol and/or drugs/controlled substances test administered
prior to a covered employee being permitted to return to duty, when
the covered employee has violated this article.
In alcohol testing, a screening test means an
analytical procedure to determine whether a covered employee may have
a prohibited concentration of alcohol in his or her system.
In drugs/controlled substances testing, a screening
test means an immunoassay screen (or other DHHS-approved test) to
eliminate negative urine specimens from further consideration.
A management or supervisory employee of the City of East
Orange.
Any City supervisor or any City management employee who has
received the requisite training in identifying the signs and symptoms
of alcohol abuse and/or drugs/controlled substances abuse.
As a result of the consumption of alcohol, an employee's
(or applicant's) ability to perform his or her job is impaired to
an appreciable degree. For the purposes of this definition, a blood
alcohol level of 0.10% alcohol in the blood by weight shall be considered
to be sufficient to establish said condition. An employee with a blood
alcohol level of less than 0.10% alcohol in the blood by weight may
also be considered to be under the influence of alcohol if job performance
is impaired to any appreciable degree.
As a result of the consumption, inhalation or injection or
any combination of alcohol, drug or any other intoxicating substance
or any combination of substances, an employee's job performance is
impaired to any appreciable degree.
To implement this article, the following rules
are established as conditions of employment with the City:
A.
The City will not hire any applicant who tests positive
on a detection test for illegal drugs or alcohol. Those individuals
will be prohibited from employment with the City for one year, unless
they provide certified documentation of successful completion of a
substance abuse rehabilitation program. Applicants who have completed
a rehabilitation program will be subject to drug screening prior to
being employed.
B.
Any City employee who is involved in a reportable
incident (see definitions) that results in injury to persons or property
shall be subject to an investigation. Employees will be directed to
undergo a drug or alcohol detection test to aid in determining fitness
for duty if there is reasonable suspicion that the employee was under
the influence of drugs or alcohol at the time of the incident.
C.
An employee who refuses to participate in a required
drug or alcohol detection test will be subject to disciplinary action,
up to and including termination.
D.
Based on the results of the investigation and drug
or alcohol detection testing, the employee may be subject to mandatory
participation in a rehabilitation program through the Employee Assistance
Program and disciplinary action in accordance with departmental or
City guidelines and established practices for various infractions.
E.
An employee's fitness to continue in his or her current
position while enrolled in any such rehabilitation program will be
determined on a case-by-case basis. Employees who have completed a
rehabilitation program will be subject to random drug screening for
the next year and will sign a waiver consenting to the same.
F.
Any City employee at any level who reports for work
on City-owned property or work sites will be directed to undergo a
drug or alcohol detection test to aid in determining fitness for duty
if there is reasonable suspicion that the employee is under the influence
of drugs or alcohol. An employee who refuses to participate in such
testing will be subject to disciplinary action, up to and including
termination of employment.
G.
All illegal drugs (see definitions) discovered during
an investigation will be given to the appropriate law enforcement
agency and may result in criminal prosecution. Drug or alcohol test
results will be used for administrative purposes only and will be
kept confidential, unless subpoenaed because of legal action.
H.
The use, sale, possession or distribution of a narcotic,
an intoxicating substance or any illegal drug or alcohol while at
work will subject an employee to disciplinary action, up to and including
termination.
I.
Supervisors shall take appropriate action to protect
City personnel and City property by removing from the work premises
or site any individual not in condition to perform assigned work in
a normal and safe manner. An employee who appears to be under the
influence of drugs or alcohol shall be taken to an authorized facility
for drug and alcohol testing. Employees shall not be allowed to drive
any vehicle, if it appears that they are under the influence of drugs
or alcohol.
J.
If any employee has reasonable suspicion that a supervisor
is under the influence of drugs or alcohol, his or her observations
shall be reported to the supervisor's immediate superior. If the employee
feels that reporting these observations in this manner would adversely
affect his or her working conditions, the report may be made to the
Personnel Department.
The use of a legally controlled substance as
part of a prescribed medical treatment by a licensed physician will
not subject an employee to disciplinary action or denial of employment
if that treatment does not adversely affect job performance. Prescribed
use may be substantiated by a physician's report or statement. If
the use of prescribed drugs adversely affects an employee's job performance
or is detrimental to the public trust or safety of other employees
or citizens, it is in the best interest of the employee and the City
for the employee to be placed on a leave of absence without pay. Leaves
of absence will be used in accordance with current policies.
In keeping with the City's goal to establish
and maintain a work environment free from the effects of drugs and
intoxicating substances and to ensure the safety of citizens, the
workplace and the work force, the following procedures are established:
A.
For all positions, applicants who have received an
offer of employment may be required to complete a drug and alcohol
detection test in addition to successful completion of any other physical
examination requirements. A positive finding of alcohol or illegal
drugs will result in denial of employment with the City.
B.
Applicants for positions who do not submit to screening
at the appointed time will be denied employment.
C.
Department heads, with input from the immediate supervisor,
shall initiate drug or alcohol screening of employees involved in
reportable incidents (see definitions) that result in injury to person
or property, if there is reasonable suspicion of substance abuse.
D.
Drug or alcohol testing of employees may be initiated
by department heads, when there is a reasonable suspicion that substance
abuse is occurring. The City Administrator shall be consulted, if
possible, before ordering a test.
E.
Drug or alcohol screening of applicants or employees
will include a urinalysis and may also include a breath analysis and
blood sample testing. The consent form to be used for each such test
is attached as Exhibit B,[1] and by this reference made a part hereof. Any positive
readings following urine testing will be confirmed by an alternate
testing method before any management action is taken. All positive
urine or blood samples will be retained by the laboratory for one
year or longer if an appeal or court action is in process.
[1]
Editor's Note: Exhibit B is on file in the
office of the City Clerk.
A.
Alcohol.
(1)
Covered employees are prohibited from reporting for
duty or remaining on duty when their ability to perform assigned functions
is adversely affected by alcohol or when their blood alcohol concentration
is 0.04 or greater. Covered employees are prohibited from possessing
or using alcohol while on duty. Covered employees are prohibited from
having used alcohol within four hours of reporting for duty. Employees
are cautioned that refraining from alcohol for four hours before reporting
for duty may not result in a negative test. Alcohol levels are affected
by the amount of alcohol consumed, physical characteristics of the
employee and the employee's rate of metabolizing alcohol which has
been consumed. Covered employees are prohibited from using alcohol
during the hours that they are on call. (Note: Covered employees are
cautioned that prescription drugs and over-the-counter medications
which contain alcohol may result in the employee having a positive
test.)
(2)
A covered employee is prohibited from being on duty
or operating a City motor vehicle while the employee possesses alcohol
unless the alcohol is being transported on City business.
(3)
A covered employee required to take a post-accident
alcohol test is prohibited from using alcohol for eight hours following
the accident or until he/she undergoes a post-accident test, whichever
occurs first.
(4)
A covered employee is prohibited from refusing to
submit to a post-accident, reasonable suspicion, return-to-duty or
follow-up alcohol test. A driver is prohibited from refusing to submit
to a preemployment, post-accident, random, reasonable suspicion, return-to-duty
or follow-up alcohol test.
B.
Controlled substance.
(1)
A covered employee is prohibited from reporting for
duty or remaining on duty when the covered employee uses any drugs/controlled
substances, except when the use is pursuant to the instructions of
a physician who has advised the employee that the substance does not
adversely affect his or her ability to safely perform his or her duties.
C.
Other prohibitions and requirements.
(1)
A covered employee is prohibited from failing to provide
access to City-owned vehicles, tool boxes, lockers, desks or other
City-supplied equipment after a determination of reasonable suspicion
that the covered employee is in violation of these provisions.
(2)
A covered employee is prohibited from obstructing
or interfering with the administration of any drug or alcohol testing.
(3)
A covered employee shall not engage in any other conduct
prohibited by this article.
(4)
City work rules not specifically cited in this article
remain in full force and effect.
(5)
Before performing work-related duties, covered employees
must notify their supervisor if they are taking any legally prescribed
medication or therapeutic drug or any nonprescription drug which contains
any amount of alcohol or 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 Personnel
Department. It is the responsibility of the employee to accurately
inform his/her physician 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 City equipment.
However, any employee who uses or possesses medication containing
alcohol while on duty or who tests positive for alcohol will be removed
from his/her position and subject to provisions of this policy, even
though the reason for the positive alcohol test is the fact that the
employee's prescription medication contains alcohol. 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 or container label must include
the patient's name, the name of the substance and the quantity/amount
to be taken. The misuse or abuse of legal drugs while performing City
business is prohibited by this article. (Note: In many instances physicians
may be able to prescribe nonalcohol alternatives.)
(6)
The unlawful manufacture, distribution, dispensing,
possession or use of a drug, controlled substance, alcohol or drug
paraphernalia is strictly prohibited for all covered employees in
the workplace.
Before performing any drug, alcohol or controlled
substances test under this article, employees other than drivers being
tested shall be notified that the alcohol and/or drugs/controlled
substances test is required by this article.
A.
A covered employee shall promptly submit to an alcohol
and/or drugs/controlled substances test whenever a trained supervisor
or trained City official has a reasonable suspicion to believe that
the covered employee has violated the drug, alcohol or controlled
substances prohibitions of this policy.
B.
The observations required by the subsection above
must be made during, just preceding or just after the period of the
workday that the covered employee is required to be in compliance
with this policy.
C.
After determination of reasonable suspicion, the alcohol
test shall be administered within two hours unless the supervisor
or City official prepares and maintains on file a record stating the
reasons the test was not administered within that time. The test may
be conducted up to eight hours after the reasonable suspicion determination
is made. If the test is not administered within eight hours after
the determination, attempts to administer the test shall stop, and
the supervisor or City official shall record and maintain on file
the reasons why the test was not conducted.
D.
No covered employee shall be subject to reasonable
suspicion drug testing later than 24 hours following the determination
that reasonable suspicion exists to require the covered employee to
undergo such test. If the test is not administered within 24 hours
after the reasonable suspicion determination, attempts to administer
the test shall stop, and the supervisor or City official shall record
and maintain on file the reasons why the test was not conducted.
E.
A trained supervisor or trained City official who
makes the determination that reasonable suspicion exists to conduct
an alcohol test shall not conduct the alcohol test of the covered
employee.
F.
A written record shall be made of the observations
leading to a drugs/controlled substances reasonable suspicion test
and shall be signed by the trained supervisor or trained City official
who made the observations within 32 hours of the observed behavior
or before the results of the drugs/controlled substances test are
released, whichever is earlier.
G.
A written record shall be made of the observations
leading to an alcohol reasonable suspicion test and shall be signed
by the trained supervisor or trained City official who made the observations
within 24 hours of the observed behavior.
A.
A surviving covered employee shall be subject to post-accident
alcohol and drugs/controlled substances testing as soon as practicable
following the accident.
B.
A covered employee subject to post-accident testing
shall be subject to a breath alcohol test not later than eight hours
following the accident and to a drugs/controlled substances test no
later than 32 hours following the accident.
C.
If an alcohol test is not administered within two
hours following the accident, the trained supervisor or trained City
official shall prepare and maintain on file a record stating the reasons
the test was not administered. If an alcohol test is not administered
within eight hours following the accident, the trained supervisor
or trained City official shall cease attempts to administer an alcohol
test and shall prepare and maintain the same record. If a drugs/controlled
substances test is not administered within 32 hours following the
accident, the trained supervisor or City official shall cease attempts
to administer a drugs/controlled substances test and prepare and maintain
on file a record stating the reasons the test was not promptly administered.
D.
A covered employee who is subject to post-accident
testing shall remain readily available for such testing or shall be
deemed to have refused to submit to testing. Nothing herein shall
be construed to require the delay of necessary medical attention or
to prohibit the covered employee from leaving the scene of the accident
for the period of time necessary to obtain assistance in responding
to the accident, obtain necessary medical treatment for injured people
or to obtain materials necessary to secure the accident site.
A.
A covered employee who has undergone an alcohol test with a result of 0.04 or greater or who has a confirmed positive test for drugs/controlled substances shall, at the sole discretion of the City, be permitted to return to work subject to the following and the follow-up testing provisions in § 60-89 below.
B.
If an employee other than a driver has violated the
alcohol prohibitions above, he or she shall undergo a return-to-duty
alcohol test with a result indicating an alcohol concentration of
less than 0.04 before returning to duty. The covered employee shall
first have been evaluated by a substance abuse professional who shall
determine what assistance, if any, the covered employee needs in resolving
problems associated with alcohol misuse and drugs/controlled substances
use.
C.
Following a determination by a substance abuse professional
that the covered employee is in need of assistance in resolving problems
associated with alcohol misuse and/or use of drugs/controlled substances,
the covered employee shall comply with all initial requirements prescribed
by the SAP and shall remain in compliance with any and all prescribed
and recommended rehabilitation and/or treatment programs.
D.
If the covered employee has violated the drugs/controlled
substances prohibitions, he or she shall undergo a return-to-duty
drugs/controlled substances test with a result indicating a verified
negative result for drugs/controlled substances use before returning
to duty.
E.
The covered employee shall be subject to such return-to-duty
testing for both alcohol misuse and use of drugs/controlled substances
if the substance abuse professional recommends testing for both alcohol
and drugs/controlled substances.
A covered employee who has undergone an alcohol
test with a result of 0.04 or greater or who has tested confirmed
positive for drugs/controlled substances and who is subject to and
has complied with the return-to-duty testing provisions above shall,
at the City's discretion, be permitted to return to work subject to
the following:
A.
The covered employee has been evaluated by a substance
abuse professional who shall determine what assistance, if any, the
covered employee needs in resolving problems associated with alcohol
misuse and/or drugs/controlled substance use; and
B.
The covered employee shall be subject to unannounced
follow-up testing.
(1)
The covered employee shall be subject to such follow-up
testing for both alcohol misuse of drugs/controlled substances if
the substance abuse professional recommends testing for both alcohol
and drugs/controlled substances.
(2)
The number and frequency of such tests shall be determined
by the substance abuse professional and shall consist of at least
six tests in the first 12 months following the covered employee's
return to duty. Follow-up testing shall not exceed 60 months after
the covered employee's return to duty.
(3)
The substance abuse professional may terminate such
tests at any time after the first six tests have been administered
if he or she determines the tests are no longer necessary.
A.
Just cause for discipline up to and including discharge
shall be established when a covered employee engages in any conduct
in violation of the provisions of this article or City work rules.
B.
Failure to comply with any required evaluation by
a substance abuse professional or failure to comply and remain in
compliance with any and all prescribed or recommended rehabilitation
and/or treatment programs shall establish just cause for discipline
up to and including discharge.
A.
All records shall be maintained in a secure location
with controlled access.
B.
Except as required or permitted by law or expressly
authorized or required by Title 49, CFR Subtitle B, Chapter III, Section
382.405, the City shall not release information that is contained
in records.
C.
Records shall be made available to a subsequent employer
upon receipt of a written request from a covered employee. Disclosure
by the subsequent employer is permitted only as expressly authorized
by the terms of the covered employee's request.
D.
Upon written request, a covered employee is entitled
to copies of any records pertaining to the covered employee's use
of drugs/controlled substances or alcohol, including any records pertaining
to his or her drug, alcohol or drugs/controlled substances tests.
E.
All results of alcohol and/or drugs/controlled substances
testing conducted pursuant to this policy shall be made available,
upon request, to the Secretary of Transportation, any DOT agency or
any state or local officials with regulatory authority over the City
or any of its drivers.
A.
Reporting a drug conviction. The Drug-Free Workplace
Act, Public Law 100-690, Title V, Subtitle D, makes it a condition
of employment that all City employees notify the City (your immediate
supervisor or the Personnel Director) of any criminal statute conviction
for a violation occurring in the workplace no later than five days
after such conviction. Within 10 days of receiving such notice of
conviction, the City will notify the appropriate federal contracting
or granting agency, if any, as required. This is required by the federal
law. Within 30 days of notice of the workplace drug conviction, the
City will:
A.
Upon report of a positive test, the employee or applicant
will be notified of the test results. As part of that notification,
he or she will be provided an opportunity to explain any positive
results. An employee or applicant whose test results were positive
may, at the employee's or applicant's own expense, have a retest conducted
of the original sample at a laboratory of the employee's choice that
has been pre-approved by the City. An employee or applicant shall
request such retest within 30 days of being notified of the original
test results.
B.
The laboratory used for the retest shall have chain
of custody procedures to ensure proper identification, labeling and
handling of test samples and proper exchange with and return of the
samples to the original medical group or laboratory. Following review
of the appeal process, a final determination will be made by the appropriate
authority. Employees who have disciplinary action taken against them
as a result of a positive drug test may file a grievance or appeal
under the applicable grievance or appeal procedure.
A.
Substance abuse screening will be conducted by certified
operators of breath alcohol testing devices or by the medical group
or groups responsible for administering preemployment physical examinations.
The integrity of the urine or blood sample being tested or the breath
test record card will be ensured by an explicit chain-of-custody procedure
developed by the medical group or laboratory. Any testing, testing-related
documents and test results will be kept confidential and will only
be released to the employee or applicant, the Personnel Department
Head, a department administrator or a counselor of the Employee Assistant
Program. Further disclosure of such information is prohibited unless
written authorization is obtained from the employee or applicant.
Any breach of confidentiality will subject the employee responsible
to disciplinary action up to and including termination.
B.
The Personnel Department will assist supervisors in
policy implementation, day-to-day administration and with disciplinary
action arising from implementation of the article.
C.
A training program will be provided to assist supervisory
personnel in identifying drug and alcohol use among employees. The
training will be directed towards helping supervisors recognize the
conduct and behavior that give rise to a reasonable suspicion of drug
or alcohol use.
D.
The Personnel Manager will be responsible for scheduling
the screening of applicants and employees during normal working hours.
Department directors will assume responsibility for scheduling employees
for testing when the Personnel Manager is not available.
E.
This article is intended to be a unilateral expression
of the general policies, procedures and guidelines concerning substance
abuse and the City's contractual rights of employment, whether express
or implied, between the City and its employees. The City reserves
the right to change these provisions.
