[HISTORY: Adopted by the Town Board of the Town of Fenton 2-7-1996.
Amendments noted where applicable.]
GENERAL REFERENCES
Grievance procedures — See Ch. 22.
Personnel policies — See Ch. 30.
A.
The U.S. Department of Transportation (DOT) has issued
regulations (49 CFR Parts 40, 382, 391, 392 and 395) ("the Regulations") pursuant
to the Omnibus Transportation Employee Testing Act of 1991,) P.L. 102-143
("the Omnibus Act"), which govern the use of drugs and alcohol by commercial
motor vehicle drivers, and which also require the Town of Fenton to conduct
mandatory drug and alcohol testing of covered drivers. The Regulations require
testing to begin on January 1, 1996.
B.
It is the town's intention to comply fully with
the Omnibus Act and DOT's Regulations governing drug and alcohol use
and testing, and the requirements of the DOT's Regulations are hereby
incorporated into this policy. In the event that DOT's Regulations are
amended, this policy and the applicable term(s), conditions and/or requirement(s)
of this policy shall be deemed to have been amended automatically at that
time, without the need for redrafting, in order to reflect and be consistent
with the DOT's Regulations. In such case the town reserves the right
to apply the amended requirements immediately, and without giving prior notice
to drivers and/or applicants, unless such notice is required by DOT or another
applicable law. The town also intends to comply with the applicable requirements
of the Drug-Free Workplace Act of 1988, the Drug Free Schools and Communities
Act, the Americans with Disabilities Act, the Family and Medical Leave Act,
the Rehabilitation Act 504 and the New York State Human Rights Law.
The Medical Review Officer for the town shall be Dr. Prindle.
The Town Supervisor shall arrange for training of all supervisors who
may be called upon to determine whether reasonable suspicion exists to test
a driver for alcohol misuse or controlled substance use.
Any violation of this policy, the drug and alcohol testing educational
material, the Omnibus Act or DOT Regulations by a covered employee shall be
grounds for disciplinary action, up to and including discharge, in a manner
consistent with the town's preexisting policies and practices.
The Town Supervisor shall also provide for an informal administrative
appeal process whereby a covered employee may appeal a positive alcohol test
and/or controlled substance test. Said process shall not interfere with the
DOT-mandated actions (e.g., removal from safety-sensitive functions).
The U.S. Department of Transportation (herein referred to as "the DOT")
has issued regulations (49 CFR Parts 40, 382, 391, 392 and 395) (herein referred
to as "the Regulations") pursuant to the Omnibus Transportation Employee Testing
Act of 1991, (P.L. 102-143, herein referred to as "the Omnibus Act") which
govern the use of drugs and alcohol by commercial motor vehicle drivers and
which require the Town of Fenton to conduct mandatory drug and alcohol testing
of covered drivers at the times and under the conditions described in this
article. The Regulations require testing to begin on January 1, 1996. The
purpose of this article is to comply with these requirements.
A.
Under the town's policy, drug and alcohol testing
will be conducted on any current driver who may be required to operate a commercial
motor vehicle (as these terms are defined in this article. The town will also
obtain assurance once every six months, from its independent contractors that
provide covered drivers for town work, that such drivers are participating
in an alcohol and drug testing program consistent with the Regulations.
B.
All applicants for positions with the town as a driver
of a commercial motor vehicle (regardless of whether they are new applicants
or transfers) will be notified of the town's drug and alcohol use and
testing policy at the time they apply for a covered driver position with the
town and that any offer of employment as such a driver will be conditioned
on compliance therewith.
As used in this article, the following terms shall have the meanings
indicated:
Any occurrence involving a commercial motor vehicle operating on
a public road which results in:
A fatality; or
The driver being cited for a moving traffic violation, and a person
is injured because of the accident and the injuries require immediate medical
treatment of the person away from the accident scene; or one or more motor
vehicles involved in the accident incurred disabling damage and must be transported
away from the accident scene by a tow truck or another vehicle.
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, as indicated by an evidential breath test under the
town's policy and administrative regulations as described herein.
The consumption of any beverage, mixture or preparation, including
any medication, containing alcohol.
A motor vehicle or combination of motor vehicles used to transport
passengers or property if the motor vehicle:
Has a gross combination weight rating of 26,001 or more pounds inclusive
of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;
or
Has a gross vehicle weight rating of 26,001 or more pounds; or
Is designed to transport 16 or more passengers, including the driver;
or
Is of any size and is used in the transportation of materials found
to be hazardous for the purposes of the Hazardous Materials Transportation
Act and which require the motor vehicle to be placarded under the Hazardous
Materials Regulations (49 CFR Part 172, Subpart F).
For alcohol testing — A second test, following a screening
test with a result of 0.02 or greater, that provides quantitative data of
alcohol concentration.
For controlled substances testing — A second analytical
procedure to identify the presence of a specific drug or metabolite which
is independent of the screen test and which uses a different technique and
chemical principle from that of the screen test in order to ensure reliability
and accuracy. (Gas chromatography/mass spectrometry [GC/MS] is the only authorized
confirmation method for cocaine, marijuana, opiates, amphetamines and phencyclidine.
Any substance listed on Schedule I of Appendix D to Subchapter B of
Title 49 of the Code of Federal Regulations or other substance identified
in Schedule I;
An amphetamine or any formulation thereof (including, but not limited
to "pep pills" and "bennies");
A narcotic drug or any derivative thereof; or
Any other substance, to a degree which renders the driver incapable
of safely operating a motor vehicle.
The Department of Health and Human Services or any designee of the
Secretary of the Department of Health and Human Services.
Any employee who operates a commercial motor vehicle. This includes,
but is not limited to, full-time, regularly employed drivers and casual, intermittent
or occasional drivers who operate a commercial motor vehicle at the direction
of or with the consent of the town.
A licensed physician responsible for receiving laboratory results
generated by an employer's drug testing program who has knowledge of
substance abuse disorders and has appropriate medical training to interpret
and evaluate an individual's confirmed positive test result together
with his or her medical history and any other relevant biomedical information.
All time from the time a driver begins to work or is required to
be an readiness to work until the time he/she is relieved from work and all
responsibility for performing work. On-duty time shall also include all time
spent travelling to and participating in either a drug or alcohol test when
it is pursuant to a random, reasonable suspicion, post-accident or followup
test as directed by or on behalf of the town.
A driver is considered to be performing a safety-sensitive function
during any period in which he or she is actually performing, ready to perform,
or immediately available to perform any safety-sensitive functions.
That a driver:
Fails to provide adequate breath for testing without a valid medical
explanation after he or she has received notice of the requirement for breath
testing in accordance with the provisions of the town's policy and administrative
regulations;
Fails to provide adequate urine for controlled substance testing without
a medical explanation after he or she has received notice of the requirement
for urine testing in accordance with the provisions of the district's
policy and administrative regulations; or
Engages in conduct that clearly obstructs the testing process.
Includes:
All time at or on town property, or on any public property, waiting
to be dispatched, unless the driver has been relieved from duty by the town.
All time inspecting equipment as required by 49 CFR 392.7 and 392.8
or otherwise inspecting, servicing or conditioning any commercial motor vehicle
at any time.
All time spent driving a commercial motor vehicle.
All time, other than driving time, in or upon any commercial motor vehicle.
All time loading or unloading a vehicle, supervising or assisting in
the loading or unloading, attending a vehicle being loaded or unloaded, remaining
in readiness to operate the vehicle.
All time spent performing the driver requirements of 49 CFR 392.40 and
392.41 relating to accidents.
All time repairing, obtaining assistance or remaining in attendance
upon a disabled vehicle.
A licensed physician (medical doctor or doctor of osteopathy) or
a licensed or certified psychologist, social worker, employee assistance professional,
or addiction counselor (certified by the National Association of Alcoholism
and Drug Abuse Counselors Certification Commission) with knowledge and/or
clinical experience in the diagnosis and treatment of alcohol-related and
controlled-substance-related disorders.
A.
The Regulations expressly prohibit drivers from:
(1)
Reporting to duty or remaining on duty requiring the
performance of safety-sensitive functions while the driver has an alcohol
concentration of 0.04 or greater.
(2)
Possessing any amount of alcohol (including alcohol found
in medications, food or other alcohol-containing products) while on duty or
operating a commercial vehicle.
(3)
Using alcohol at any time while performing any safety-sensitive
function.
(4)
Using alcohol within four hours prior to performing any
safety-sensitive function.
(5)
Using alcohol for eight hours following an accident (as
defined in this article) or until he or she undergoes a post-accident alcohol
test, whichever occurs first.
(6)
Refusing to submit to an alcohol or controlled substance
test (as defined in this article).
(7)
Reporting for duty or remaining on duty requiring the
performance of safety-sensitive functions when the driver uses any controlled
substances, except when use is pursuant to the instructions of a physician
who has advised the driver that the substance does not adversely affect the
driver's ability to safely operate a commercial motor vehicle.
(8)
Failing to inform the town that he/she is using any therapeutic
drug.
(9)
Reporting for duty, remaining on duty or performing safety-sensitive
functions when the driver tests positive for controlled substance.
B.
Drivers are also prohibited from failing to inform the
town, consistent with existing town rules that may require such notification,
that the driver is using drugs other than therapeutic drugs.
C.
Any violation of the Omnibus Act, the Regulations, the
town's policy regarding controlled substance and alcohol testing, this
article and the town's drug and alcohol testing educational material
is also considered prohibited conduct.
D.
Drivers (excluding applicants for covered driving positions)
who violate these prohibitions will be subject to the actions mandated by
the DOT as described in this article. Drivers who violate these prohibitions
may also be subject to disciplinary action by the town, up to and including
discharge, in a manner consistent with the DOT Regulations, the town's
preexisting policies and practices and any applicable laws.
The town is required by DOT to conduct tests under the following conditions
or times:
A.
Following certain accidents (post-accident testing) as
described in 49 CFR 382.303.
B.
On a random basis as described in 49 CFR 382.305.
C.
For reasonable suspicion as described in 49 CFR 382.307.
D.
Return-to-duty testing after engaging in prohibited conduct as outlined in § 15-10A of this article, as described in 49 CFR 382.309.
E.
Follow-up testing as described in 49 CFR 382.311 for
individuals in need of assistance in resolving problems associated with alcohol
misuses and/or use of controlled substances.
A.
To ensure the integrity and accuracy of each test, all
specimen collection, analysis, and laboratory procedures shall be conducted
in accordance with DOT's procedural protocols and safeguards, as set
forth in Part 40 of Title 49 of the Code of Federal Regulations. This includes,
among other things:
(1)
Procedures to ensure the correct identity of each driver
at the time of testing.
(2)
A chain-of-custody procedure to ensure that the driver's
specimen is not tampered with.
(3)
The use of a trained breath alcohol technician (BAT)
and DOT-approved testing devices for conduction of alcohol tests.
(4)
The use of a DHHS-certified laboratory.
(5)
The confirmation of an initial positive drug screen by
a second analysis using gas chromatography/mass spectrometry (GCMS).
(6)
The confirmation of an initial positive alcohol screen
by a second analyses.
(7)
The town's appointment of a qualified Medical Review
Officer (MRO) to review the drug test results before they are reported to
the town's designated representative.
B.
To further facilitate the integrity and accuracy of each
test, the town will provide drivers with written and/or oral instructions
regarding conduct of the specific test before each testing event. The town
considers all such instructions to be a part of the town's policy and
the town's administrative regulations. Drivers who refuse or otherwise
fail to comply with all such instructions will be subject to disciplinary
action, up to and including discharge, in a manner consistent with the town's
preexisting policies and practices and any other applicable laws.
A.
For drug tests.
(1)
Before a driver's test result will be confirmed
positive for drugs, the driver will be given the opportunity to speak with
the town's MRO and demonstrate that there was a legitimate medical explanation
for the positive test result. If the MRO determines that a legitimate medical
reason does exist, the test result will be reported to the town as "negative."
If the MRO determines that a legitimate medical reason does not exist, the
test result will be reported to the town as a "confirmed positive."
(2)
In the event that the test result of a driver's
primary specimen is confirmed positive, the driver will be notified by the
town and advised that he/she has 72 hours to request that the MRO send his/her
secondary specimen to a second DHHS-approved laboratory for analysis. Pending
the outcome of this additional analysis, the driver will be prohibited from
performing any safety-sensitive functions and, when appropriate, be given
a temporary alternative assignment.
B.
For alcohol tests.
(1)
In the event that the driver provides an adequate breath
specimen and the initial test registers an alcohol concentration level that
is less than 0.02, the test result will be reported as "negative" and no additional
test will be required at that time.
(2)
In the event that the driver provides an adequate breath
specimen and the initial test registers an alcohol concentration level of
0.02 or greater, a second, confirmatory test will be performed. In the event
that the driver provides an adequate breath specimen and the confirmatory
test registers less than 0.02, the test result will be reported to the town
as "negative."
(3)
Any driver whose confirmatory test registers 0.02 or
more but less than 0.04 will be prohibited from performing any safety-sensitive
function until the driver's next regularly-scheduled duty period, but
for no less than 24 hours after the test is given. Such a driver may also
be subject to additional disciplinary action by the town, up to and including
discharge, in a manner consistent with the town's preexisting policies
and practices and any applicable laws.
(4)
A driver who, after providing an adequate breath specimen,
has a confirmatory test which registers 0.04 or greater will, at a minimum,
be suspended from performing safety-sensitive functions until the next requirement
of 49 CFR 382.605 are met and will be subject to additional disciplinary action
by the town, up to and including discharge, in a manner consistent with the
town's preexisting policies and practices and any applicable laws.
A.
Any driver engaging in conduct prohibited by § 15-10A of this article shall be prohibited from performing any safety-sensitive functions. In addition, such drivers will be evaluated by a disinterested SAP, who shall determine what assistance, if any, the driver needs in resolving problems associated with alcohol and/or controlled substance use.
B.
Any driver engaging in conduct prohibited by § 15-10A of this article must satisfy any return-to-duty testing requirements and referral, evaluation and treatment program prescribed by a SAP as outlined in 49 CFR Part 382, Subpart F, before he/she may be permitted to perform safety-sensitive functions.
C.
Any driver engaging in conduct prohibited by § 15-10A of this article will be subject to disciplinary action by the town, up to and including discharge, in a manner consistent with the town's preexisting policies and practices and any applicable laws. In addition, a driver whose test result is confirmed positive will be subject to civil and criminal penalties imposed by DOT.
D.
Each driver who has engaged in conduct prohibited by § 15-10A shall be advised by the town of the resources available to the driver in evaluating and resolving problems with alcohol and controlled substance use, including the names, addresses and telephone numbers of SAP's and counseling and treatment programs.
A.
Upon a positive alcohol test and/or controlled substance
test, a driver may file an appeal with the Town of Fenton Supervisor (or other
designated hearing officer) by submitting written notice of the grounds for
said appeal within five days after the employee receives notice of the first
test results.
B.
Pending the resolution of the appeal, no disciplinary
action shall be taken; provided, however, that DOT-mandated actions (e.g.,
removal from safety-sensitive functions) shall not be deemed to be disciplinary
action within the meaning of this rule; provided further that this rule shall
not require the town to hold disciplinary action in abeyance beyond any applicable
statute of limitations, as set forth in the law, unless the employee waive
the said statute of limitations, in writing.
C.
Following receipt of an employee's notice of appeal,
the Town Supervisor shall offer the employee an opportunity to be heard regarding
the same. The employee may be accompanied by an attorney or representative
to this meeting. The said meeting is intended to be informal in nature, rather
than a trial-like evidentiary hearing.
D.
The Town Supervisor shall provide the employee and any
representative who may appear on his behalf with a written decision deciding
the appeal. In deciding an appeal from a positive alcohol or controlled substance
test result, the Supervisor shall take into account the original test result(s),
any retesting done by the employee at the employee's expense, and any
other pertinent information that the employee or town may provide. In deciding
an appeal from a positive controlled substance test result, the Town Superintendent
shall also take into account the test results pertaining to the split sample.
A.
Drivers who are tested for drugs are required to contact
the town and the town's MRO daily while awaiting the results of their
tests. Drivers are also required to advise the town of their whereabouts and
the telephone number where they can be reached during this time.
B.
A driver who refuses or fails to contact the town and
the town's MRO will be considered insubordinate and subject to disciplinary
action, up to and including discharge, in a manner consistent with the town's
preexisting policies and practices. In addition, a driver who fails to contact
the town and town's MRO may waive his/her right, under this article,
to speak with the town's MRO before a test is confirmed positive.
A.
Each driver will be provided with the town's drug
and alcohol testing educational material and information concerning the effects
of drugs and alcohol on an individual's health, work and personal life;
the signs and symptoms of a drug or alcohol problem; and the available methods
of intervention and treatment when a problem does exist.
B.
All questions concerning the educational materials provided
by the town, or the town's policy or administrative regulations, should
be directed to the appropriate person identified on the Program Contacts list
which accompanies these administrative regulations.[1]
[1]
Editor's Note: The Program Contracts list is on file in the town
offices.
A.
As provided in 49 CFR Part 40, the town will submit three
blind performance test specimens for each 100 employee specimens it submits,
up to a maximum of 100 blind performance test specimens per quarter. These
specimens will be either blank samples (containing no drugs) or two separately
labeled portions of a specimen from the same noncovered employee.
B.
In the event of a false positive error, the town shall
follow the procedures mandated by 49 CFR 40.31.
A.
The results of all individual drug and alcohol tests
will be kept in a secure location with controlled access.
B.
All individual test results will be confidential. The
release of an individual driver's test result will be given in accordance
with an individual driver's written authorization, or as is otherwise
required by DOT's Regulations or by applicable federal or state law.
C.
The town shall maintain records of its alcohol misuse
and controlled substance use prevention programs; prepare, maintain and report
a summary of the results of its testing programs; and ensure that access to
such records may be obtained through the methods outlined in the Regulations,
as provided in 49 CFR Part 382, Subpart D.
