Town of Maine, NY Drug and Alcohol Testing

[HISTORY: Adopted by the Town Board of the Town of Maine 12-9-2003. Amendments noted where applicable.]

The U.S. Department of Transportation (USDOT) has issued revised regulations pursuant to the Omnibus Transportation Employee Testing Act of 1991 (the "Act"), which govern the use of drugs and alcohol by commercial motor vehicle drivers, that require the Town of Maine (the "Town") to conduct mandatory drug and alcohol testing on covered drivers. It is the Town's intention to comply fully with the law and with USDOT's regulations governing drug and alcohol use and testing. In the event USDOT's regulations are further amended, the Town reserves the right to apply the amended requirements immediately.

The Town Highway Superintendent or a designee:

(1)

Shall adopt any work rules necessary to implement this policy and comply with the Act and USDOT regulations;

(2)

Shall provide drug and alcohol testing educational material that complies with federal regulations for distribution to covered employees;

(3)

Shall provide written notice to Town employees covered by this policy of any change in policy;

(4)

Shall arrange for training of all supervisors to allow them to determine whether reasonable suspicion exists to test an employee for alcohol misuse or illegal drugs;

(5)

Shall provide for an informal appeal process whereby an employee may appeal a positive test; and

(6)

Shall serve as the designated employer representative ("DER") as defined in the USDOT regulations. Any violation of this policy, the law, or USDOT regulations by an employee shall be grounds for disciplinary action up to and including discharge in a manner consistent with law.

§ 36-2 Applicability and prohibitions.

Drug and alcohol testing will be conducted on any current and/or prospective driver who may be required to operate a commercial motor vehicle, as defined by the USDOT.

All applicants for positions with the Town as a driver of a commercial motor vehicle, regardless of whether they are a new applicant or a current employee, will be notified of the Town's drug and alcohol testing policy at the time they apply for a covered driver position with the Town and will be notified that any offer of employment as such a driver will be conditioned on their compliance with it.

No Town Highway Department driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. If the Town has actual knowledge that a driver has an alcohol concentration of 0.04 or greater, the Town shall not permit such driver to perform or continue to perform safety-sensitive functions.

No Town Highway Department driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner as defined in applicable federal regulations, who has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle. If the Town has actual knowledge that a driver has used a controlled substance, the Town shall not permit such driver to perform or continue to perform a safety-sensitive function. If requested by the Town Highway Superintendent, a driver must inform said Highway Superintendent of any therapeutic drug use.

§ 36-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ACCIDENT

Any occurrence involving a commercial motor vehicle operating on a public road during working hours which results in:

A fatality; or

A Town driver being cited for a moving traffic violation.

ALCOHOL

The intoxicating agent in beverage alcohol, ethyl alcohol, or other low-molecular-weight alcohol including methyl and isopropyl alcohol.

DRUG

Any substance listed on Schedule 1 of Appendix D to Subchapter B of Title 49 of the Code of Federal Regulations or other substance identified in Schedule 1;

An amphetamine or any formulation thereof;

A narcotic drug or any derivative thereof; or

Any other substance, to a degree that renders the driver incapable of safely operating a motor vehicle.

ALCOHOL CONCENTRATION OR CONTENT

The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by any evidential breath test.

ALCOHOL USE

The drinking or swallowing of any beverage, liquid mixture, or preparation, including any medication containing alcohol.

CDL

Commercial driver's license.

COMMERCIAL MOTOR VEHICLE

A motor vehicle or combination of motor vehicles that operates at normal highway speeds and:

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.

CONFIRMATION TEST

For alcohol, a subsequent test using an evidential breath-testing device, following a screening test with a result of greater than 0.00, that provides quantitative data about the alcohol concentration.

For drugs, a second analytical procedure, following the initial urine testing performed on a urine specimen, to identify and quantify the presence of a specific drug or drug metabolite.

Such test is to be ordered and paid for by the employee by contacting the lab that performed the initial test.

DESIGNATED EMPLOYER REPRESENTATIVE (DER)

The Town Highway Superintendent, who is authorized by the Town to take immediate action(s) to remove employees from driving duties or cause employees to be removed from driving duties and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the Town, consistent with USDOT regulations.

DRIVER

Any employee required by federal law and regulation to possess a CDL in order to operate a commercial motor vehicle as defined by federal law and regulation. For the purposes of pre-employment/pre-duty testing only, the term "driver" includes a person applying to the Town to drive a commercial motor vehicle.

DRIVING

These activities by an employee who holds a federally required CDL:

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 Highway Superintendent;

All time inspecting equipment as required by federal regulations or otherwise inspecting, servicing or conditioning any commercial motor vehicles at any time;

All time spent driving a federally defined 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 under federal regulations relating to accidents; and

All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.

MEDICAL REVIEW OFFICER (MRO)

A licensed physician responsible for receiving and reviewing laboratory results generated by the Town's drug testing program and evaluating medical explanations for certain drug test results.

ON-DUTY TIME

All time from the time a driver begins to work or is required to be in readiness to work until the time he or she is relieved from work and all responsibility for performing work. On-duty time shall also include all time spent traveling to and participating in either a drug or alcohol test when it is pursuant to a random, reasonable suspicion, post-accident or follow-up test as directed by or on behalf of the Town.

REFUSE TO SUBMIT

To an alcohol or urine test means that a driver:

(1)

For alcohol,

(a)

Fails to appear for any test (except a pre-employment test) within a reasonable time, as determined by the Town, after being directed to do so by the Town or a third-party administrator;

(b)

Fails to remain at the testing site until the testing process is complete (but an applicant who leaves the testing site before the testing process commences for a pre-employment test has not refused to a test);

(c)

Fails to provide an adequate amount of saliva or breath for any required alcohol test (but an applicant who does not provide an adequate amount of saliva or breath because the applicant has left the testing site before the testing process commences for a pre-employment test has not refused to a test);

(d)

Fails to provide a sufficient breath specimen, and the physician has determined, through a required medical evaluation, that there was no adequate medical explanation for the failure;

(e)

Fails to undergo a medical examination or evaluation, as directed by the Town as part of the insufficient breath procedures;

(f)

Fails to sign the certification at Step 2 of the Alcohol Testing Form;

(g)

Fails to cooperate with any part of the testing process.

(2)

For drugs,

(a)

Fails to appear for any test (except a pre-employment test) within a reasonable time, as determined by the Town, after being directed to do so by the Town or a third-party administrator;

(b)

(c)

Fails to provide a urine specimen for any required drug test (but an applicant who does not provide a urine specimen because the applicant has left the testing site before the testing process commences for a pre-employment test has not refused to test);

(d)

In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the provision of a specimen;

(e)

Fails to provide a sufficient amount of urine when directed, and it has been determined, through medical evaluation, that there was no adequate medical explanation for failure;

(f)

Fails or declines to take a second test the Town or collector has directed to be taken;

(g)

Fails to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process or as directed by the DER. In the case of a pre-employment drug test, the applicant is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment;

(h)

Fails to cooperate with any part of the testing process (for example, refuses to empty pockets when so directed by the collector, behaves in confrontational way that disrupts the collection process); or

(i)

Provides a verified adulterated or substituted urine specimen.

A refusal to take or submit to a drug or alcohol test will be treated as a positive result and incurs the same consequences as a violation of USDOT regulations.

SCREENING TEST

Also known as the initial test, means:

In alcohol testing, an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system (in a breath or saliva specimen); and

In drug testing, the test used to differentiate a negative specimen from one that requires further testing for drugs or drug metabolites.

SUBSTANCE ABUSE PROFESSIONAL

A licensed physician, 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- and drug-related disorders and who evaluates employees who have violated a USDOT regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

§ 36-4 Required testing.

The Town is required to and shall conduct drug and alcohol tests:

(1)

Pre-employment and pre-duty;

(2)

Following an accident as defined in § 36-3, Definitions;

(3)

On a random basis (annually 50% of employees subject to drug testing; annually 25% of employees subject to alcohol testing);

(4)

Upon a reasonable suspicion as ascertained by the Town Highway Superintendent who has completed related training;

(5)

Upon a return to duty after engaging in conduct that is illegal under the Act or under regulations issued pursuant to it; and

(6)

Periodic follow-up testing for individuals who have engaged in conduct that is illegal under the Act or under regulations issued pursuant to it.

Any applicant or Town Highway Department employee required to be tested under federal law, who refuses or fails to submit to a pre-employment or pre-duty drug and alcohol test as directed, or whose result is positive for the drug and alcohol test, will not be considered for employment with the Town. A current Town Highway Department employee who applies for a driver position or who already holds a position as a driver and who refuses or fails to submit to a drug and alcohol test as directed, or whose result is positive for the drug and alcohol test, may be subject to discipline, up to and including discharge, consistent with New York State civil service regulations.

Any applicant or current worker who applies for a driver position, who was employed by a DOT-regulated employer during any period during the two years before the date of the application or transfer, must provide the Town with written consent to permit the Town to request from DOT-regulated employers:

(1)

Alcohol tests with a result of 0.04 or higher alcohol concentration;

(2)

Verified positive drug tests;

(3)

Refusals to be tested (including verified adulterated or substituted drug test results);

(4)

Other violations of DOT agency drug and alcohol testing regulations; and

(5)

With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee's successful completion of DOT return-to-duty requirements (including follow-up tests).

If the previous employer does not have information about the return-to-duty process, an applicant or current worker must submit to the Town any and all information he or she possesses or has knowledge of about the return-to-duty process. Any applicant who fails to provide such written consent to return-to-duty information will not be considered for employment with the Town. Any current worker who fails to provide such written consent or return-to-duty information may be subject to discipline, up to and including discharge, consistent with New York State civil service regulations.

§ 36-5 Method of testing.

To ensure the integrity and accuracy of each test, all breath and specimen collection, analysis and laboratory procedures shall be conducted in accordance with USDOT rules. This includes, among other things:

Procedures to ensure the correct identity of each driver at the time of testing;

A chain of custody procedure to protect a driver's urine specimen;

The use of "split" urine samples to allow for a verification of an initial positive test;

The use of a trained breath alcohol technician (BAT) and USDOT-approved testing devices for conducting alcohol tests;

The use of federally approved labs as selected by the Town or by a contractor that may be retained by the Town to perform testing;

The confirmation of an initial positive urine test by a second test;

The confirmation of an initial positive breath test by a second test; and

The Town's appointment of a qualified MRO to review urine test results.

§ 36-6 Test results.

For alcohol tests: In the event that an initial breath test registers an alcohol concentration level that is 0.00, the test results will be reported as a "negative," and no additional test will be required at that time.

(1)

In the event that an initial breath test yields a result of greater than 0.00, a second confirmation test will be performed. In the event that the confirmation test registers 0.00, the test result will be reported to the Town as "negative."

(2)

A driver who has a confirmation test which registers greater than 0.00 will, at a minimum, be suspended from all driving functions until federal regulations are satisfied so as to allow a return to work and will be subject to additional disciplinary action by the Town.

For drug tests:

(1)

Before a urine test result will be confirmed as positive for illegal 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 a "negative." If the MRO determines that a legitimate medical reason for a positive test does not exist, the test result will be reported to the Town as a "positive." The driver will be notified by the Town's MRO and will have 72 hours to request that the MRO send the split sample to a second approved lab. The cost of the second test shall be paid by the driver. Pending the outcome of the second test, the driver will be prohibited from driving.

(2)

If a specimen is invalid and the MRO reports to the Town that there was not an adequate medical explanation for the result or if an original positive, adulterated, or substituted test result had to be canceled because the test of the split specimen could not be performed, then an applicant will be required to be retested under direct observation with no advance notice in accordance with USDOT regulations.

§ 36-7 Prohibited activities.

A driver for the Town shall not:

Report for duty or remain on duty requiring the performance of driving functions while the driver has an alcohol concentration of greater than 0.04;

Possess any amount of alcohol (including alcohol found in medications, food, or other alcohol-containing products) while on duty or operating a commercial motor vehicle;

Use alcohol at any time while performing any driving function;

Have a concentration of alcohol greater than 0.04 prior to performing any driving function;

Use alcohol for eight hours following an accident or until the driver undergoes a post-accident alcohol test, whichever occurs first;

Refuse to submit to an alcohol or urine test;

Consume alcohol when notified of or informed of being on call;

Fail to inform the DER of therapeutic drug use;

Report for duty or remain on duty when required to drive when the driver uses any drug, except when the use is pursuant to the instructions of a physician who has advised the driver that the drug does not adversely affect the driver's ability to safely operate a commercial motor vehicle;

Report for duty, remain on duty, or perform driving functions when testing positive for drugs or alcohol; or

Fail to inform the DER of nontherapeutic drug use.

§ 36-8 Consequences of engaging in prohibited activities.

A driver, excluding applicants for covered driving positions, who violates the above prohibitions:

(1)

Shall not drive;

(2)

Will be put on leave of absence;

(3)

Will be subject to the actions mandated by USDOT;

(4)

Will be subject to disciplinary action, up to and including discharge, in a manner consistent with New York State civil service regulations.

Any action taken by the Town which is mandated by federal law or regulation shall not in any way be deemed to be disciplinary in nature and may only be challenged or appealed by filing an appeal with the Town pursuant to § 36-9 of this chapter or by filing a complaint with the appropriate federal agency.

For those employees who need a CDL in order to perform work duties, the Town considers the CDL to be a qualification for employment.

In the event an employee is relieved of work duties as a result of a violation of federal law or regulation or this policy, the employee will not be assigned other work during a mandated absence. Accrued paid leave, if any, may be taken to permit an employee who is removed from work duties to remain on full pay status.

Any driver with a positive urine test or a breath alcohol test of greater than 0.00 must satisfy any return-to-duty requirements and referral, evaluation and treatment program prescribed by a substance abuse professional as required by federal regulations before the driver may be permitted to drive. All costs associated with evaluation, treatment and repeat testing shall be borne by the driver.

A driver whose urine test result is positive will also be subject to civil and criminal penalties imposed by USDOT.

Each driver who tests positive shall be advised by the DER of the resources available to the driver in evaluating and resolving problems with alcohol or controlled substance use, as the case may be, including the names, addresses and telephone numbers of substance abuse professionals and counseling and treatment programs.

Any employee who test positive for drugs or alcohol a second time shall be terminated.

§ 36-9 Appeal procedure.

Upon testing positive, a driver may file an appeal with the DER or other individual as may be designated by the Town, by submitting written notice of the grounds for an appeal within five days after the employee receives notice of the test result. Following receipt of an employee's notice of appeal, the DER shall offer the employee an opportunity to be heard. The employee may be accompanied by a representative whose role in the hearing shall be solely to advise the employee as to his or her rights or responsibilities. Pending the resolution of the appeal, no disciplinary action shall be taken. However, actions which the Town is required to take under federal law or regulations shall not be deemed to be discipline.

The DER shall provide the employee and any representative who may appear on his behalf with a written decision. In deciding an appeal from a positive breath or urine test result, the DER shall take into account the original test result, 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 DER shall take into account the test results pertaining to the split sample. In deciding an appeal, the DER shall not take into account any evaluation performed by a second substance abuse professional.

§ 36-10 Town and MRO communications.

An employee tested for drugs must contact the DER and the Town's MRO daily while awaiting the results of the test and must also advise the DER of his or her whereabouts and a telephone number where he or she may be reached during time away from work. An employee who refuses to do so 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 accordance with New York State civil service regulations. In addition, an employee who fails to contact the DER and the Town's MRO shall waive his or her right to speak with the Town's MRO before a test is confirmed to the Town as positive.

§ 36-11 Information on drugs and alcohol.

Each employee will be provided with educational material and information concerning:

(1)

The effects of drugs and alcohol on an individual's health, work and personal life;

(2)

The signs and symptoms of a drug or alcohol problem; and

(3)

The available methods of intervention and treatment when a problem does exist.

All questions concerning the education material provided by the Town or about this policy shall be directed to the appropriate person identified on the contact list included as part of this chapter.

§ 36-12 Quality assurance/quality control.

As provided in federal regulations, the Town will submit three blind performance urine specimens for each 100 employee specimens it submits.

In the event of a false positive error, the Town shall follow the procedures mandated by federal regulations.

§ 36-13 Program confidentiality.

The results of all individual drug and alcohol tests will be kept in a secure location with controlled access. All individual test results are confidential. The release of an individual driver's results will only be given in accordance with the employee's written authorization, or as is otherwise required by federal law or regulation.

§ 36-14 Contact list.

For Questions Regarding	Contact
Drug/alcohol testing requirements	Town Highway Superintendent
Town policy or educational material	Town Supervisor
Test laboratories	Town Supervisor
MRO services	Town Supervisor
Drug/alcohol counseling and rehabilitation services	Town Supervisor
Designated employer representative	Town Highway Superintendent

§ 36-15 Miscellaneous.

All drug and alcohol testing will comply with, but not exceed, applicable United States and New York State statutes, codes, rules and regulations.

Should a Town Highway Department employee request a second test from a split sample and if the second test returns positive, the cost of the test will be paid by such employee. Initially, the cost will be paid by the Town. The actual cost the Town pays will be deducted from the employee's pay.

If an employee is required to be tested and there are no traffic violations or other reasons to believe that the driver acted improperly, and if such employee is not permitted to operate safety-sensitive equipment until the test results are returned, the driver will be placed on leave with pay or assigned duties that the driver can legally perform, pending the results.

All discipline resulting from drug and alcohol testing will be handled the same way as all other discipline governed by the written agreement between Town and the union.

All Town Highway Department employees who are experiencing drug or alcohol problems and have not been instructed to undergo a reasonable suspicion, post-accident or random drug or alcohol test under this chapter shall have the right to obtain a leave of absence for the purpose of participating in an authorized rehabilitation program. Such employee shall be entitled to use available unused sick leave, vacation time, and any other accrued benefits in accordance with the written agreement between Town and union and in accordance with the Town's personnel policy. To obtain such leave, the employee shall furnish to the Town Highway Superintendent evidence of participation in a certified drug or alcohol rehabilitation program. It is important for such employee to inform the Town Highway Superintendent of the drug and alcohol problem before being allowed to take time off.