Township of Concord, PA Personnel Policies

[Added 2-4-1997 by Ord. No. 208]

Policy objectives. The township has a desire to provide a safe workplace for its employees and efficient service to the public. The township's objective in adopting this Drug and Alcohol Policy is to comply with applicable state and federal law and to help ensure that the workplace is free from the adverse effects of drug and alcohol use and that employees are fit to perform their job duties and report for work regularly and on time.

Regulations concerning testing. The United States Department of Transportation (DOT) has established mandatory drug and alcohol testing regulations that affect certain of the township's drivers and driver applicants. The township is committed to complying with these federal regulations and to applying certain of such federal regulations to all township employees and employment applicants. Accordingly, the following requirements shall apply to all employees who are required to have a commercial driver's license (CDL) and to applicants for CDL positions and, where indicated, to all township employees and applicants for employment.

(1)

Preemployment testing. All applicants for employment with the township shall be tested for controlled substances before beginning employment with the township. An applicant who tests positive for controlled substances shall not be hired by the township.

(2)

Random testing. If the township does its own testing, then each year CDL drivers holding a minimum of 25% of the average number of CDL driver positions shall undergo random alcohol testing and CDL drivers holding at least 50% of the average number of CDL driver positions shall undergo random controlled substances testing. If the township joins a testing consortium, then those minimum percentages shall apply to the total pool of CDL drivers whose employers are part of the consortium. The CDL driver may be tested at any time during working hours, before, during or after performing job duties, and the test will be unannounced.

(3)

Reasonable-suspicion testing.

(a)

The township shall require an employee to submit to an alcohol and/or controlled substances test when the township has reasonable suspicion to believe that the employee is under the influence of alcohol and/or controlled substances or has otherwise violated the regulations set forth in this Drug and Alcohol Policy. When the township has reasonable suspicion to believe that the employee is under the influence of alcohol and/or controlled substances or has otherwise violated this policy, the township shall be permitted to search the vehicle and personal property of such employee during working hours or whenever the employee is on the township's property or is at his or her designated workplace. Reasonable suspicion must be based on specific observations concerning the appearance, behavior, speech or body odors of the employee. Township supervisors or officials will be trained to recognize the indicators of probable controlled substances or alcohol misuse. The person who makes the determination that reasonable suspicion exists shall not conduct the drug or alcohol test.

(b)

Within two hours after the determination of reasonable suspicion is made, the employee shall be tested for alcohol and/or controlled substances. If the alcohol and/or controlled substances test is not administered within two hours after the determination of reasonable suspicion is made, then the township shall record why the test was not promptly administered. Under no circumstances shall the employee be tested for alcohol later than eight hours after the determination of reasonable suspicion is made or for controlled substances later than 32 hours after the determination of reasonable suspicion is made.

(c)

A written record shall be made of the observations leading to an alcohol and/or controlled substances reasonable suspicion test and shall be signed by the supervisor or township official who made the observations within 24 hours of the observed behavior or before the results of the alcohol or controlled substances test are released, whichever is earlier.

(d)

The township will not permit any employee to perform any safety-sensitive duties after a reasonable suspicion determination has been made and prior to receipt by the township of final test results confirming that the employee is not under the influence of controlled substances or alcohol as established by the DOT regulations or other applicable law. Depending on the availability of work, the township will determine whether to reassign the employee to non-safety-sensitive work or to place the employee on leave without pay. If the test results are negative for controlled substances and/or alcohol as established by the DOT regulations or other applicable law and if the employee had been placed on leave without pay, then the employee will be paid for the time he would have worked pending receipt of the test results.

(4)

Mandatory postaccident testing.

(a)

Within two hours after an accident, as defined herein, an employee shall be tested for alcohol and controlled substances. If an alcohol and controlled substances test is not administered within two hours after the accident, the township shall record why the test was not promptly administered. Under no circumstances shall an employee be tested for alcohol later than eight hours after the accident or for controlled substances later than 32 hours after the accident.

(b)

An accident is defined as involving:

[1]

A fatality.

[2]

The employee receiving a citation under state or local law for a moving violation, which violation occurs during working hours.

[3]

Bodily injury that requires a person to be transported away from the scene for medical treatment.

[4]

Damage to any vehicle that requires the vehicle to be towed away from the scene by a tow truck or another vehicle, or other substantial damage to any property.

[5]

Any job-related incident involving the apparent violation of a safety rule or standard, which did or could have resulted in serious injury or property damage.

(c)

An employee who is subject to postaccident testing shall remain readily available for such testing or else may be deemed by the township to have refused to submit to testing. Refusal to submit to controlled substances testing will be considered an act of insubordination, with disciplinary and employment consequences. However, this availability requirement does not require the employee to delay necessary medical attention for himself, herself or others or to delay obtaining assistance as needed due to the accident. If, as a consequence of an accident, an employee is seriously injured and cannot provide a specimen at the time of the accident, the employee must provide the necessary authorization for obtaining hospital records and other documents that will indicate whether there were any controlled substances or alcohol in his or her system at the time of the accident. After an accident, an employee may not consume alcohol or any controlled substances before being tested.

(5)

Return-to-duty testing. Before an employee may, if at all, return to duty after testing positive for alcohol or controlled substances, the employee shall undergo a return-to-duty alcohol test which indicates an alcohol concentration of less than 0.02 and a return-to-duty controlled substances test which verifies a negative result for controlled substances as set forth in the DOT regulations or other applicable law.

(6)

Follow-up testing. An employee who returns to duty after testing positive for the use of alcohol and/or controlled substances shall be subject to unannounced follow-up testing for up to 60 months from the date of the employee's return to duty. The employee shall be subject to a minimum of six unannounced alcohol and/or controlled substances tests during the first 12 months following his or her return to duty. Follow-up tests may be conducted at any time during working hours, before, during or after performing job duties.

(7)

Testing procedures. Tests and testing procedures for alcohol and/or controlled substances, including but not limited to blood and urine testing, evidentiary breath testing and blood alcohol testing, shall comply with applicable DOT regulations and other applicable law. Controlled substances include but are not limited to cocaine, marijuana, opiates (including heroin), amphetamines, phencyclidine (PCP) and prescription drugs that adversely affect the driver's ability to safely operate a commercial motor vehicle and any other substance defined as a controlled substance under applicable law. Blood alcohol testing may be used in reasonable suspicion and postaccident testing where an evidentiary breath test (EBT) is not readily available. Blood alcohol testing may also be performed if the employee is unable to provide sufficient breath for a breath test.

Administration and recordkeeping.

(1)

Notification of test results. The township will notify each employment applicant (upon request) and each employee of the results of alcohol and/or controlled substances tests of the applicant or employee conducted pursuant to the DOT regulations and other applicable law. Employees who test positive will also be advised specifically as to what drug or the amount of alcohol that was discovered.

(2)

Recordkeeping. The township shall comply with the DOT's recordkeeping regulations. All of the records relating to the administration and results of the township's alcohol and controlled substances testing program for its employees shall be maintained for a minimum period of five years, except that individual negative test results shall be maintained for a minimum of one year. At its discretion, the township may delegate the recordkeeping and reporting requirements to an outside agency or testing consortium.

(3)

Medical Review Officer. The township will utilize a Medical Review Officer who is a licensed doctor of medicine or osteopathy with knowledge of drug abuse disorders to review drug test results. The Medical Review Officer shall retain the reports of individual test results for a minimum of five years.

(4)

Access to test results and findings. No person may obtain the individual test results retained by the township and the township's designated Medical Review Officer, and neither the township nor any Medical Review Officer shall release the individual test results of any employee to any person, except to the tested individual, to agents of the township, to persons to whom disclosure is necessary for the orderly imposition of appropriate sanctions and as required or permitted by law, without first obtaining written authorization from the tested individual.

General regulations concerning use, possession and sale of alcohol or controlled substances on the township's property.

(1)

All employees shall be subject to discipline pursuant to this policy, including but not limited to termination, for any of the following actions, which are hereby prohibited:

(a)

Testing positive for controlled substances as set forth in the DOT regulations or other applicable law;

(b)

Testing positive for alcohol in a concentration equal to or above the level of legal intoxication established by DOT regulations or other applicable law;

(c)

Using, possessing, selling or being under the influence of controlled substances or alcohol while on duty;

(d)

Refusing to submit to a test for controlled substances or alcohol as permitted by the DOT regulations or other applicable law or this policy;

(e)

Using controlled substances or alcohol within four hours before performing safety-sensitive functions;

(f)

Using alcohol or controlled substances before the postaccident tests are administered;

(g)

Performing or allowing an employee to perform a safety-sensitive function with the knowledge that the employee is under the influence of alcohol or controlled substances or has used alcohol or controlled substances within four hours before performing the safety-sensitive function;

(h)

Refusing to consent to the township's request, upon reasonable suspicion, to search the vehicle or personal property of any employee during working hours or while the employee is on the township's property or designated workplace;

(i)

Failing to keep prescription drugs in their original container identifying the drug, dosage, date of prescription and physician;

(j)

Failing to notify one's supervisor of any therapeutic drug use prior to driving or performing a safety-sensitive duty that could impair the employee's working ability or alertness; or

(k)

Otherwise violating this policy, the DOT regulations or other applicable law.

(2)

Alcohol concentration of 0.02 to 0.039. An employee whose test result shows a blood alcohol concentration of 0.02 to 0.039 shall be removed immediately from safety-sensitive functions for 24 hours. The township may suspend such employee without pay for this time and may terminate the employee for any subsequent violation of this policy. Any other employee whose test result shows a blood alcohol concentration of 0.02 to 0.039 may be suspended without pay for 24 hours.

(3)

Violations of policy; disciplinary action.

(a)

An employee will be deemed to have violated this policy whenever, among other things, the employee tests positive for alcohol or drugs, regardless of whether a supervisor or anyone else determines that the employee is impaired or that the employee's job performance was adversely affected.

(b)

An employee who tests positive will immediately be sent to a substance abuse professional (SAP) for an examination. The employee shall not be permitted to return to work until authorized to do so by the SAP. During this time period, the township may consider the employee to be suspended without pay.

(c)

An employee who tests positive must:

[1]

Be examined by a SAP acceptable to the township;

[2]

Comply with all recommendations of the SAP;

[3]

Periodically submit reports from any person or group designated by the SAP, confirming that the employee is complying with any after care recommendations;

[4]

Pass a return-to-work controlled substance and alcohol test;

[5]

Sign an agreement releasing all medical information relating to controlled substances or alcohol use to the township so that the township can determine whether the employee can perform the job safely and providing for follow-up testing upon demand for a period of 60 months and, further, providing that the employee may be immediately discharged for a second violation of this policy.

(d)

Any employee deemed to have violated this policy a second time may be discharged.

(e)

Anything in this policy to the contrary, notwithstanding if any employee tests positive during postaccident testing or violates Subsection D(5) or (6) of this policy, the township shall have the option of immediately discharging the employee.

(4)

Training program.

(a)

The township will establish a training program for all employees, which will address alcohol and controlled substance issues and review the requirements under this policy and the DOT regulations.

(b)

The township will establish a training program for supervisors, which will consist of at least 60 minutes of training on alcohol misuse and at least an additional 60 minutes of training on drug use.

(5)

Off-duty conduct. Employees are expected to refrain from engaging in any off-duty or off-premises controlled substances or alcohol-related use and/or conduct which may affect their work performance or which may cause adverse publicity to the township. The township may discipline employees, up to and including termination, for such off-duty conduct.

(6)

Leave of absence.

(a)

A permanent employee with at least one year of service shall be permitted to take a leave of absence for the purpose of undergoing treatment pursuant to an approved program for alcoholism or drug abuse. The leave of absence must be requested before the Commission of any acts subject to disciplinary action.

(b)

If relapse occurs and the employee (with at least one year of service) comes forward voluntarily before the Commission with any acts subject to disciplinary action, the employee will be referred to a substance abuse professional for evaluation, and the township will make any employment decisions on a case-by-case basis in conjunction with the township's obligations under the Americans with Disabilities Act, Family and Medical Leave Act and other applicable law.

(c)

Employees requesting to return to work from any leave of absence for controlled substance or alcohol abuse shall be required to submit to testing as provided herein. Failure to do so will subject the employee to discharge without the receipt of a prior warning letter.

Outside contractors.

(1)

Any outside contractor working for the township who uses CDL drivers to perform work for the township shall provide to the township, prior to doing any work, a notarized affidavit certifying that the contractor's employees covered by the DOT CDL regulations are participating in a valid drug and alcohol testing program and shall submit to the township a copy of the contractor's most recent DOT reporting form setting forth test results.

(2)

Third-party or contractor employees, while on the township's property, will also be subject to this policy, with violations resulting in removal from the premises.

Miscellaneous.

(1)

The township reserves the right to add to, change or modify any portion or all of this policy in its sole discretion and to terminate any employee at any time, except as those rights are restricted by law. The township accepts no liability in the event of an alleged breach of any of the policies or procedures set forth in this policy.

(2)

This policy will be limited by any applicable federal or state law or municipal ordinance. Any portion of this policy which directly conflicts with such a law or ordinance will not be implemented but shall be severable and shall not affect the validity and enforcement of the remainder of the policy.

(3)

This policy (and any accompanying document executed or delivered pursuant to or in connection with the policy) is not intended to and shall not confer any contractual or other rights or claims in favor of the township's employees.

(4)

Any failure to implement the policy or any part thereof and any variation, addition or omission to the procedures set forth in the policy shall not confer any contractual or other rights or claims in favor of the employee not otherwise conferred by law. The employee remains employed at will.