[HISTORY: Adopted by the Town Council of
the Town of Bethany Beach 5-17-1996 byOrd. No. 306 (Ch. 11 of the 1992 Code).
Amendments noted where applicable.]
GENERAL REFERENCES
Alcoholic beverages — See Ch. 217.
A.
The Town Council has found and determined that the
use and abuse of illegal drugs and/or alcohol is a prevalent and growing
problem from which no segment of our society, including employees
or potential employees of the Town of Bethany Beach, is immune. The
Town Council has also determined that the possession, use, consumption
or distribution of illegal drugs or alcohol by Town employees, while
on duty, poses as a serious threat to the public health, safety, morals
and general welfare and to the morale of all Town employees.
B.
It is therefore declared to be the policy of the Town
of Bethany Beach that Town employees are expected to be free of the
influence of drugs and/or alcohol while on duty. This policy is being
established in accordance with the Omnibus Transportation Employee
Testing Act of 1991, as it may from time to time be amended, to ensure
a safe and efficient workplace that is free of drugs and alcohol.
This chapter, and the policy it implements, is adopted pursuant to
the power and authority delegated to the Town by the Town Charter
and by the Town's general police powers.
All Town employees are prohibited from the following
activities:
A.
Possessing or consuming any illegal drugs or controlled
substances while on duty.
B.
Placing, carrying or allowing the placement of any
unauthorized alcoholic beverage, or any illegal drug or controlled
substance, in any Town vehicle or equipment.
C.
Reporting to work under the influence of illegal drugs
or controlled substances.
D.
Reporting to work under the influence of alcohol;
a blood alcohol concentration of 0.05% or greater shall be conclusive
evidence of a violation hereof, but shall not preclude other evidence
of being under the influence.
E.
Being under the influence of alcohol and/or illegal
drugs or controlled substances while being paid to be on-call for
work.
F.
Operating any Town vehicle, heavy equipment or potentially
dangerous machinery while under the influence of any illegal drugs
or controlled substances and/or while under the influence of alcohol.
G.
Consuming any alcoholic beverages while on duty.
H.
Selling or distributing, or arranging the sale or
distribution, of any illegal drug or controlled substance to any person
while on duty.
I.
Operating any Town vehicle in violation of the Omnibus
Transportation Testing Act of 1991, as it may from time to time be
amended.
J.
Refusing to submit to an alcohol and/or drug test
as required by this chapter and/or as required by any governing state
or federal law or regulation.
Any employee who engages in any of the activities prohibited by § 21-2 above shall be prohibited from operating any Town vehicle, heavy equipment or potentially dangerous machinery. Any such employee shall also be subject to disciplinary action up to and including dismissal.
A.
Preemployment testing. No candidate who is selected
for full-time employment and no candidate who is selected for temporary
or seasonal employment as a police officer or lifeguard shall become
an employee of the Town until such candidate completes and passes
a test for drug and alcohol abuse, such test to be established by
the Town Manager and paid for by the Town. The results of said test
shall be maintained as confidential information, available only to
the prospective employee and to those Town employees and officials
directly involved in the hiring process. The Town Manager shall reject
any applicant who does not pass such drug and/or alcohol test.
B.
Random testing. Each employee who is assigned to a
position which requires the possession of a commercial driver's license,
any police officer or any lifeguard may be tested for alcohol content
and/or for the use of illegal drugs and controlled substances. Such
tests shall be conducted on a random, unannounced basis in accordance
with the Omnibus Transportation Employee Testing Act of 1991, as it
may from time to time be amended, or in accordance with any future
corresponding governing law or regulation.
C.
Incident-driven testing.
(1)
Post accident. Each employee who operates a Town vehicle
when it is involved in a traffic accident shall be tested for alcohol
content and/or for the use of illegal drugs and controlled substances
unless it is clear that the accident was caused by some other person.
(2)
Reasonable suspicion.
(a)
Any employee shall be tested for blood alcohol
content and/or for the use of illegal drugs and controlled substances
if the employee's supervisor, the Town Manager or, in the case of
the Town Manager, the Mayor or any Council member has reasonable suspicion
that the employee is under the influence of alcohol and/or illegal
drugs or controlled substances.
(b)
By way of illustration and not in limitation,
the following shall constitute examples of incidents which would give
rise to reasonable suspicion:
[1]
Observable phenomena such as direct observation
of drug use or possession of drugs and/or drug paraphernalia and/or
the physical symptoms of being under the influence of a drug while
on- or off-duty.
[2]
A pattern of abnormal conduct or erratic behavior.
[3]
Arrest or conviction of a drug-related offense
or the identification of an employee as the focus of a criminal investigation
into illegal drug possession, use or trafficking. (The term "trafficking"
shall also mean distribution.)
[4]
Information provided either by reliable credible
sources or independently corroborated.
[5]
Newly discovered evidence that the employee
tampered with a previous drug test.
[6]
Observable phenomena of being under the influence
of alcohol while on duty or while being paid to be on call, such as
the strong odor of alcohol, bloodshot eyes, slurred speech and/or
unsteady gait.
[7]
A medical emergency which appears to be alcohol
and/or drug related.
[8]
The observance of open containers of alcoholic
beverages or the observation of drugs or drug paraphernalia at the
employee's desk, work station, locker or Town vehicle.
(c)
Although reasonable suspicion testing does not
require certainty, mere hunches are not sufficient to meet the standard.
All testing required by this chapter shall be
conducted in accordance with any governing state and/or federal laws
or regulations. In the absence of any such governing laws or regulations,
such testing shall be conducted in accordance with commonly recognized
procedures utilized by other governmental agencies and shall involve
balancing the employee's reasonable expectation of privacy and the
promotion of the Town's legitimate governmental interests.
An employee who refuses to submit to a drug
and/or alcohol test as defined by this chapter shall be an employee
who:
A.
Fails to provide an adequate breath sample without
a valid medical explanation after the employee has received notice
of the requirement for breath testing.
B.
Fails to provide an adequate urine sample for controlled
substances testing without a valid medical explanation after the employee
has received notice of the requirement for urine testing.
C.
Fails to provide an adequate blood sample for testing
without valid medical explanation after the employee has received
notice of the requirement for blood testing.
D.
Engages in conduct that clearly obstructs the testing
process, as mandated by this chapter.
A.
The Town shall pay the cost of testing for alcohol
and controlled substances except as herein provided.
B.
The employee shall pay the cost of any test requested
by the employee to confirm the use of a controlled substance if the
results of the confirmation test are positive. If the results of the
confirmation tests are negative, the Town shall pay the cost of the
confirmation test.
C.
The Town shall not pay the cost of evaluating, counseling
or rehabilitation which may be required by the Omnibus Transportation
Employee Testing Act of 1991 or any amendment thereto. However, the
Town shall encourage those who use drugs or abuse alcohol to seek
help in overcoming their problems. In this way, fully rehabilitated
abusers who remain drug-free may have the opportunity to return to
work as employees in good standing.
A.
Each employee whose random confirmation test indicates
the use of a controlled substance shall immediately be prohibited
from operating Town vehicles and shall be suspended from work without
pay for a period of two weeks.
B.
Each employee who has been tested positive on a random
basis for a controlled substance shall undergo a return-to-duty test
with a negative result prior to being allowed to operate Town vehicles.
C.
Each employee who has been tested positive on a random
basis for a controlled substance shall be subject to follow-up testing
as directed by a substance abuse professional.
D.
Each employee whose follow-up test reveals the presence
of a controlled substance shall be terminated from employment.
Each employee whose random test indicates a
blood-alcohol concentration of greater than 0.02% but less than 0.05%
shall be prohibited from operating Town vehicles for a period of 24
hours. Such employee shall be disciplined as follows:
A.
For the first occurrence, a suspension of eight hours.
Each employee may contact the Town Manager for
further information about this chapter. The Town Manager shall maintain
a list of agencies that offer drug and/or alcohol counseling and/or
Alcoholics Anonymous meetings in Sussex County, Delaware.
