Town of Eden, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Eden 12-27-1995. Amendments noted where applicable.]
A. 
On September 15, 1986, President Reagan issued an Executive order mandating a drug-free federal workplace with the intent that the federal workforce would serve as a model for all American business.
B. 
On October 28, 1991, President Bush signed the Omnibus Transportation Employee Testing Act (OTETA) of 1991. The Act required the Federal Department of Transportation (DOT) to develop additional regulations that required drug and alcohol testing of additional safety-sensitive employees in the aviation, highway, rail and transit industries. Specific regulations which impact the Town of Eden are:
(1) 
Title 49 of the Code of Federal Regulations (CFR), Part 40. Specifies procedures which must be followed by the town when conducting drug and/or alcohol testing pursuant to federal regulations.
(2) 
Title 49 of the Code of Federal Regulations (CFR), Part 382 - Controlled Substance and Alcohol Uses and Testing. Requires employers to test their employees who maintain a commercial drivers license (CDL) in the performance of their duties for prohibited drugs and alcohol use under the following work-related conditions:
(a) 
Preemployment/preassignment.
(b) 
Post-accident.
(c) 
Random selection testing.
(d) 
Reasonable cause/suspicion.
(e) 
Return-to-duty.
(f) 
Follow-up.
The Town of Eden recognizes that the use and/or abuse of alcohol or controlled substances by drivers of commercial vehicles or employees in safety-sensitive positions present a serious threat to the safety and health of employees and the general public. It is the policy of the Town of Eden that its drivers and safety-sensitive support personnel should be free of drugs and alcohol in compliance with the Omnibus Transportation Employee Testing Act of 1991. The town has implemented a drug and alcohol testing program which is designed to help reduce and avoid traffic accidents and injuries to our employees and the public, to discourage substance and alcohol abuse and to reduce other drug- and alcohol-related problems.
For purposes of this policy, the town strictly prohibits the use of alcohol and/or controlled substances by its employees who are performing, ready to perform or ceasing to perform the following safety-sensitive job functions: operation of commercial motor vehicles and those who are subject to the Commercial Driver License Law pursuant to 49 CFR 383.
A. 
General. The town shall test employees for drug and alcohol use in accordance with the Federal Highway Administration regulations, 49 CFR Parts 40, 382, 391, 392, 395, that pertain to employees who operate commercial motor vehicles and are subject to the Commercial Driver License Law pursuant to 49 CFR 383. The town testing program shall exceed what is mandated by the federal regulations in that it will conduct a baseline test in addition to the mandated program. The program and its procedures shall be implemented for the town employees effective January 1, 1996.
B. 
Random testing. The town shall select a qualified consultant to identify employees for random drug and/or alcohol testing in accordance with the federal regulations.
C. 
Reasonable suspicion testing. The town has the right to test an employee in the event that it has a reasonable suspicion that an employee may be under the influence of drugs or alcohol. If disciplinary action is probable, the Town Highway Superintendent will inform the employee of his/her right to consult with legal counsel. However, failure to provide that information will not preclude the town from taking appropriate disciplinary action. The employee may consult with legal counsel as long as counsel can respond without causing a delay in the testing process.
D. 
Post-accident testing. When a post-accident test is required, the employee may consult with legal counsel as long as counsel can respond without causing a delay in the testing process.
If a test result of the primary specimen is positive, the town shall immediately request that a qualified medical review officer direct that the split specimen be tested in accordance with the procedures set forth in 49 CFR 40, Sections 25(f)(10)(ii), 29(b)(2)(3) and 33(f). An employee may contact the medical review office prior to analysis of the split specimen.
The town shall pay the employee for the time required to comply with post-accident, random selection, reasonable cause/suspicion and return-to-duty testing. Such testing shall include, but not be limited to, providing a breath sample and a urine sample, and shall include travel time to and from the test site. However, all follow-up testing shall be at the expense of the employee.
At the time an employee is called to report to duty, the employee shall acknowledge the use of alcohol, any drug or other substance which might impair the employee's ability to perform job duties. In such cases the employee will not be required to report to work. This section, however, shall not in any manner reduce, eliminate or otherwise affect any existing duty of employees to be reasonably available and capable of reporting to work without any drug or alcohol impairment.
A. 
Any cost involving an initial evaluation by the substance abuse professional selected by the town shall be borne by the town. All follow-up testing directed by the substance abuse professional shall be paid for by the employee and will be on the employee's time. The expense of such follow-up testing may be submitted to insurance providers if the employee so chooses and if covered. This in no way is a guaranty by the town that such claim will be paid by the insurance providers. When a follow-up test is to be performed, the employee may consult with legal counsel, as long as counsel can respond without causing a delay in the testing process.
B. 
Unless the employee is terminated, an unpaid leave of absence will be allowed for follow-up testing and treatment on an inpatient or outpatient basis, provided that the employee may use accumulated sick leave, vacation and/or personal time in accordance with the current personal and sick leave policies. This provision shall in no way preclude the right of the town to prefer appropriate charges and bring disciplinary proceedings against an employee with the full range of potential penalties.
C. 
Reinstatement to the employee's position or an equivalent position may only occur upon certification that the employee has satisfactorily completed evaluation and followed the recommended program and that the program recommends return to regular assignment. Department heads shall retain the right to assign and manage personnel to best serve the department needs.
In the event of a conflict, the federal regulations and this Memorandum of Policy shall supersede previous policies and procedures pertaining to drugs and alcohol.
The town shall provide each affected employee with a copy of this Memorandum of Policy.
If any provision of this Memorandum of Policy conflicts with a statutory or regulatory provision or is declared inoperative by a court of competent jurisdiction, the remaining provisions of this Memorandum of Policy shall remain in full force. The parties shall thereafter meet within 90 days to renegotiate said negated clause.
[Added 4-10-1996]
A. 
First positive test result. Any of the following occurrences will count as a first positive:
(1) 
A positive test result for breath alcohol of 0.02 to 0.039 requires mandatory unpaid absence from work for 24 hours and a return-to-duty negative test result.
(2) 
A breath alcohol test of 0.04 or greater or a positive test for drugs would require an unpaid absence from work for a minimum of 24 hours. A positive test would also require an evaluation by a substance abuse professional (SAP) and subsequent follow-up as prescribed by the SAP. A negative result on a return-to-duty test is required.
(3) 
Refusal to submit to drug or alcohol testing will be documented and will be treated as a positive breath alcohol test of 0.04 or greater or a positive drug test.
(4) 
Note: A breath alcohol test result of less than 0.02 shall be considered a negative result.
B. 
Second positive test result. Any of the following occurrences will count as a second positive:
(1) 
A positive test result for breath alcohol of 0.02 to 0.039 requires mandatory unpaid absence from work for five business days. A positive test would also require an evaluation by a substance abuse professional (SAP) and subsequent follow-up as prescribed by the SAP. A negative result on a return-to-duty test is required.
(2) 
A breath alcohol test of 0.04 or greater or a positive test for drugs requires a mandatory unpaid absence from work for five business days. A positive test would also require an evaluation by a substance abuse professional (SAP) and subsequent follow-up as prescribed by the SAP. A negative result on a return-to-duty test is required.
(3) 
Refusal to submit to drug or alcohol testing will be documented and will be treated as a positive breath alcohol test of 0.04 or greater or a positive drug test.
(4) 
Note: A breath alcohol test result of less than 0.02 shall be considered a negative result.
C. 
Third positive test result (within five-year period).
(1) 
Any of the following occurrences will count as a third positive:
(a) 
Refusal to submit to drug or alcohol testing will be documented and will be treated as a positive breath alcohol test of 0.04 or greater or a positive drug test.
(b) 
If it has been more than five years since the second positive test result, any positive result will be treated as a second positive test.
(2) 
A third positive test result within a five-year period will result in termination.
(3) 
Note: A breath alcohol test result of less than 0.02 shall be considered a negative result.