[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.]
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.
B. 
For the second occurrence which occurs within five years of the first occurrence, a suspension of 40 hours.[1]
[1]
Editor's Note: Original Subsection C, which immediately followed this subsection and which pertained to a third occurrence within five years, was repealed 8-20-2004 by Ord. No. 386.
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.