[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:
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.
