For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
Applicant.
Any individual tentatively selected for employment with the city.
City property.
All property used by employees such as vehicles, lockers, desks, closets, offices, buildings, etc.
Controlled substance.
Any substance listed in schedules I–V of section 202 of the Controlled Substance Act (21 USC section 812), as amended. Copies are maintained for employee review by personnel and health services.
Drug.
Any chemical substance that produces physical, mental, emotional or behavioral change in the user.
Drug paraphernalia.
A product, material or equipment that is used or intended for use in concealing an illegal drug or for use in injecting, ingesting, inhaling or otherwise introducing into the human body an illegal drug or controlled substance.
Employees in sensitive positions.
(1) 
Employees in positions designated by the city as special sensitive;
(2) 
Other positions that the city determines involve law enforcement, security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.
Fitness for duty.
To work in a manner suitable for the job. To determine “fitness,” a medical evaluation may include drug and/or alcohol testing.
Illegal drug.
Any drug or derivative thereof which the use, possession, sale, transfer, attempted sale or transfer, manufacture or storage of is illegal or regulated under any federal, state, or local law or regulation; any other drug, including (but not limited to) a prescription drug, used for any reason other than a legitimate medical reason; and inhalants used illegally. Included is marijuana or cannabis in all forms.
Random testing.
A system of drug testing imposed without individualized suspicion that a particular individual is using illegal drugs. Random testing may either be:
(1) 
An uninformed/unannounced testing of randomly selected employees occupying a specified area, element or position; or
(2) 
A statistically random sampling of employees based on a neutral criterion, such as social security numbers.
Reasonable cause/reasonable suspicion.
Support by evidence strong enough to establish that a policy violation has occurred.
Supervisor.
An employee having authority to hire, direct, assign, promote, reward, transfer, furlough, lay off, recall, suspend, discipline or remove other employees, to adjust their grievances or to effectively recommend such action if the exercise of the authority is not merely routine or clerical in nature, but requires the consistent exercise of independent judgment.
Testing designated positions (TDPs).
Employment positions within the city which have been designated for random testing under section 9.02.003(b)(1)(A), below.
Under the influence.
A state of having a blood alcohol concentration of 0.07 or more, where “alcohol concentration” has the meaning assigned to it in Tex. Rev. Civ. Stat. art. 67011-1; or the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage or a controlled substance.
Verified positive test result.
A test result that was positive on an initial FDA-approved immuno-assay test confirmed by a gas chromatography/mass spectrometry assay (or other confirmatory tests approved by the city).
Workplace premises.
All premises within the city to which the work of the employee requires access.
(2002 Code, sec. 31.20)
(a) 
The city has a compelling obligation to eliminate illegal drug use from its workplace. City personnel are involved in providing services which directly pertain to issues of health, safety and human welfare. The citizens of this community are entitled to have those services provided in a manner that does not increase the exposure to risk, an unavoidable result where drugs are present in the workplace. The objective of this article is to implement a drug- and alcohol-free workplace which will help ensure a safe and productive workplace and to provide education and treatment to the city’s employees. In order to further this endeavor, the following rules regarding alcohol and illegal drugs in the workplace have been established:
(1) 
The manufacture, distribution, dispensing, possession, sale, purchase or use of a controlled substance on city property is prohibited.
(2) 
Being under the influence of alcohol or illegal drugs on city property is prohibited.
(3) 
The unauthorized use, possession, or sale of prescription drugs or over-the-counter drugs on city property is prohibited.
(4) 
Employees who violate these prohibitions are subject to immediate termination. These regulations apply to all employees, volunteers, advisory board members and elected officials of the city regardless of rank or position and including temporary and part-time employees.
(b) 
Any of the following actions constitutes a violation of regulations contained in this article and may subject an employee to disciplinary action, including immediate termination:
(1) 
Using, selling, purchasing, transferring, possessing, manufacturing or storing an illegal drug or drug paraphernalia, or attempting or assisting another to do so, while in the course of employment or engaged in a city-sponsored activity, on premises, in owned, leased or rented vehicles or on business.
(2) 
Working or reporting to work, conducting city business or being on premises or in a city-owned, city-leased or city-rented vehicle while under the influence of an illegal drug or alcohol or in an impaired condition.
(3) 
Using, possessing or selling unauthorized prescription or over-the-counter drugs on city property.
(4) 
Refusing to take a test for drug consumption as directed or failing to appear for a test without a deferral. Attempts to alter or substitute the specimen provided will be deemed a refusal to take the drug test when required.
(c) 
No applicant who refuses to be tested shall be extended an offer of employment.
(d) 
These regulations apply to all employees, volunteers, advisory board members and elected officials of the city regardless of rank or position and including temporary and part-time employees.
(2002 Code, sec. 31.21)
(a) 
Procedures.
(1) 
The city’s drug testing component shall have professionally trained collection personnel, quality assurance requirements for urinalysis procedures and strict confidentiality requirements.
(2) 
Any individual subject to testing under this policy shall be permitted to provide urine specimens in private and in a restroom stall or similar enclosure so that the employee is not observed while providing the sample.
(3) 
Collection site personnel of the same gender as the individual tested may observe the individual provide the urine specimen when such personnel have reason to believe the individual may alter or substitute the specimen to be provided.
(4) 
Collection site personnel may have reason to believe that a particular individual may alter or substitute the specimen to be provided when:
(A) 
Facts and circumstances suggest that the individual:
(i) 
Is an illegal drug user;
(ii) 
Appears to be under the influence of drugs at the time of the test; or
(iii) 
Has equipment or implements capable of tampering with or altering urine samples; or
(B) 
The specimen:
(i) 
Has a temperature outside the range of 32.5 to 37.7 degrees C (90.5 to 99.8 degrees F); or
(ii) 
Shows signs of contaminants.
(5) 
The cost of all testing will be paid by the individual tested. The city will reimburse the individual at the end of six months of successful employment.
(b) 
Types of testing.
(1) 
Random-based testing.
(A) 
The executive order permits random testing for employees in sensitive positions subject to the city’s criteria. Among the factors the city shall consider in designating a testing designated position are the extent to which the city:
(i) 
Considers its mission inconsistent with illegal drug use;
(ii) 
Must foster public trust by preserving employee reputation for integrity, honesty and responsibility;
(iii) 
Has financial security responsibilities;
(iv) 
Has drug interdiction responsibilities; or
(v) 
Has positions which:
a. 
Authorize employees to carry firearms;
b. 
Give employees access to sensitive information;
c. 
Authorize employees to engage in law enforcement;
d. 
Require employees as a condition of employment to obtain a security clearance; or
e. 
Require employees to engage in activities affecting public health or safety.
(B) 
Applicants or candidates for a testing designated position shall be advised in writing that the position is subject to random drug testing and that a positive test result will subject them to disciplinary action up to and including dismissal. They will be asked to acknowledge that they have received this information by completing the employee acknowledgment form (see section 9.02.010).
(C) 
The city reserves the right to add or delete positions determined to be testing designated positions pursuant to the criteria established in subsection (b)(1)(A) above. The city has determined that all positions which have been or will be designated as testing designated positions under this article are “sensitive positions.”
(D) 
In implementing random testing, the drug program coordinator shall:
(i) 
Ensure that the means of random selection remains confidential; and
(ii) 
Evaluate periodically whether the numbers of employees tested and the frequency with which those tests are administered satisfy the city’s duty to achieve a drug-free work force.
(E) 
An individual selected for random testing and the individual’s first-line supervisor shall be notified the same day the test is scheduled, preferably within two hours of the scheduled testing. The supervisor shall explain to the employee that the employee is under no suspicion of taking drugs and that the employee’s name was selected randomly.
(2) 
Reasonable suspicion-based testing.
(A) 
Reasonable suspicion testing may be based upon, among other things:
(i) 
Observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;
(ii) 
A pattern of abnormal conduct or erratic behavior;
(iii) 
Arrest or conviction for a drug-related offense or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use or trafficking;
(iv) 
Information provided either by reliable and credible sources or independently corroborated; or
(v) 
Newly discovered evidence that the employee has tampered with a previous drug test.
(B) 
If an employee is suspected of using illegal drugs, the appropriate supervisor will gather all information, facts and circumstances leading to and supporting this suspicion.
(C) 
When higher-level concurrence of a reasonable suspicion determination has been made, the appropriate supervisor will promptly prepare a written report detailing the circumstances which formed the basis to warrant the testing. This report should include the appropriate dates and times of reported drug-related incidents, reliable/credible sources of information, rationale leading to the test and the action taken.
(D) 
The employee may be asked to provide the urine sample under observation in accordance with the criteria in subsection (a) above.
(3) 
At-work behavior-based testing.
Employees involved in on-the-job accidents or who engage in unsafe on-duty job-related activities that pose a danger to others or the overall operation of the city may be subject to testing based on the circumstances of the accident or unsafe act.
(4) 
Pre-employment testing.
(A) 
Every vacancy announcement for positions designated for applicant testing shall state: “Any applicant tentatively selected for this position will be required to submit to testing to screen for illegal drug use prior to employment. The cost of the test will be paid by the applicant, to be reimbursed by the city after six (6) consecutive months of satisfactory service.” Failure of the vacancy announcement to contain this statement notice will not preclude applicant testing if advance written notice is provided to applicants in some other manner.
(B) 
Notification of the city’s drug-free workplace policy, and the relevance of that policy to the specific position involved, shall be made available to each individual during the pre-employment process.
(C) 
Each candidate for a testing designated position shall be asked to acknowledge in writing that the he or she has received and read the notice which states that the position has been designated for random drug testing and that refusal to submit to testing will result in initiation of disciplinary action, up to and including dismissal.
(D) 
Each job applicant will be notified that employment in the position will be contingent upon a negative drug test result.
(E) 
The city shall direct applicants to an appropriate collection facility. The drug test must be undertaken as soon after notification as possible and no later than 48 hours after notice to the applicant.
(F) 
Upon notification that an individual has been tentatively selected for employment, the city manager shall ensure that a drug test has been conducted on that individual and determine whether the test result is a verified positive result.
(c) 
Confidentiality of test results.
(1) 
The laboratory may disclose test results only to the city manager.
(2) 
The results of a drug test of a city employee may not be disclosed without the prior written consent of such employee unless the disclosure is:
(A) 
To the city manager;
(B) 
To any supervisory or management official within the city having authority to take adverse personnel action against such employee; or
(C) 
Pursuant to the order of a court of competent jurisdiction or where required by the U.S. government to defend against any challenge against any adverse personnel action.
For purposes of this subsection (c), “management official” shall mean any management, government, security or personnel official whose duties necessitate review of the test results in order to process adverse personnel action against the employee.
(3) 
Any employee who is the subject of a drug test shall, upon written request, have access to any records relating to:
(A) 
Such employee’s drug test; and
(B) 
The results of any relevant certification, review or revocation-of-certification proceedings.
(d) 
Maintenance of records.
The city’s recordkeeping system should capture sufficient documents to meet the operational and statistical needs of this article and include:
(1) 
Notices of verified positive test results referred by the city manager;
(2) 
Written materials justifying reasonable suspicion testing or evidence that an individual may have altered or tampered with a specimen;
(3) 
Anonymous statistical reports; and
(4) 
Other documents the drug program coordinator or the city manager deems necessary for efficient compliance with this article.
(2002 Code, sec. 31.22)
(a) 
An employee may be found to use illegal drugs on the basis of any appropriate evidence, including, but not limited to:
(1) 
Direct observation;
(2) 
Evidence obtained from an arrest or criminal conviction;
(3) 
A verified positive test result; or
(4) 
An employee’s voluntary admission.
(b) 
If an employee who occupies a sensitive position is found to use illegal drugs, that employee shall be immediately removed from that position without regard to whether it is a testing designated position.
(c) 
The city shall initiate disciplinary action against any employee found to use illegal drugs. Such disciplinary action may include any of the following measures:
(1) 
Reprimanding the employee in writing;
(2) 
Placing the employee in an enforced leave status;
(3) 
Suspending the employee for 14 days or less;
(4) 
Suspending the employee for 15 days or more; and
(5) 
Removing the employee from service by termination of employment.
(d) 
The city will decline to extend a final offer of employment to any applicant with a verified positive test result, and such applicant will not be considered for employment by the city for a period of one year. The personnel officer working on the applicant’s file shall be directed to object to the applicant on the basis of failure to pass the physical, a lack of personal characteristics necessary to relate to public employment or failure to support the goals of the city. The city shall inform such applicant that a confirmed presence of an illegal drug in the applicant’s urine precludes the city from hiring the applicant.
(e) 
When a confirmed positive result for an employee has been returned by the laboratory, the city manager may choose to conduct employee medical interviews, review employee medical history or review any other relevant biomedical factors.
(f) 
The city manager must review all medical records made available by the tested employee when a confirmed positive test could have resulted from legally prescribed medication. Evidence to justify a positive result may include, but is not limited to:
(1) 
A valid prescription; or
(2) 
A verification from the individual’s physician verifying a valid prescription.
(g) 
Individuals are not entitled to present evidence to the city manager in a trial-type administrative proceeding, although the city manager has the discretion to accept evidence in any manner the city manager deems most efficient or necessary.
(h) 
Any positive result which the city manager justifies by acceptable and appropriate medical or scientific documentation to account for the result as other than the intentional ingestion of an illegal drug will be treated as a negative test result and may not be released for purposes of identifying illegal drug use.
(2002 Code, sec. 31.23)
(a) 
Employees taking drugs prescribed by an attending physician must advise their direct supervisor in writing of the possible effects of such medication regarding their performance and physical/mental capabilities. This written information must be communicated to the direct supervisor prior to the employee commencing work. All medical information will be kept confidential. All prescription drugs must be kept in their original container.
(b) 
Applicants for employment shall be advised of the opportunity to submit medical documentation that may support a legitimate use for a specific drug.
(c) 
An employee may file an administrative appeal and supporting information to the city manager challenging the designated testing status of his or her position within 15 days of the designation being applied. The city manager will review the appeal based on the criteria applied in designating the position as testing designated. The city manager’s decision on the appeal is final.
(2002 Code, sec. 31.24)
(a) 
The city shall provide training to assist supervisors and managers in recognizing and addressing illegal drug use by city employees. Supervisors will receive training regarding the drug and alcohol policy. Supervisory training shall be required of all supervisors and may be presented as a separate course or be included as part of an ongoing supervisory training program. Training shall be provided as soon as possible after a person assumes supervisory responsibility. Training courses shall include:
(1) 
Overall city policy;
(2) 
The prevalence of various employee problems with respect to drugs and alcohol;
(3) 
How to recognize employees with possible problems;
(4) 
Documentation of employee performance or behavior;
(5) 
Skills in confronting employees with possible problems;
(6) 
Disciplinary actions and removal from sensitive positions; and
(7) 
Written materials which the supervisor can use at the worksite.
(b) 
Supervisors will be trained regarding referral of employees for drug testing. Except as modified by the city to suit specific program responsibilities, first-line supervisors shall:
(1) 
Attend training sessions on illegal drug use in the workplace;
(2) 
Initiate a drug test based on reasonable suspicion as described in section 9.02.003(b)(2);
(3) 
Initiate appropriate disciplinary action upon a finding of illegal drug use; and
(4) 
In conjunction with personnel specialists, assist higher-level supervisors in evaluating employee performance and/or personnel problems that may be related to illegal drug use.
(c) 
The city manager shall be responsible for implementing supervisory training and shall develop a training package to ensure that all employees and supervisors are fully informed of the city’s drug-free workplace policy.
(d) 
All employees shall receive a copy of the drug and alcohol policy as part of a drug education program. Drug education shall include education and training to all levels of the city on:
(1) 
Types and effects of drugs;
(2) 
Symptoms of drug use and the effects on performance and conduct; and
(3) 
Other relevant treatment, rehabilitation and confidentiality issues.
(4) 
Drug education activities may include:
(A) 
Distribution of written materials;
(B) 
Videotapes;
(C) 
Lunchtime employee forums; and/or
(D) 
Employee drug awareness days.
(e) 
The city manager shall be responsible for implementing, directing, administering, and managing the drug program. In carrying out the responsibilities, he shall, among other duties:
(1) 
Arrange for all testing authorized under this program;
(2) 
Ensure that all employees subject to random testing receive individual notice as described in this article and that such employees return a signed acknowledgment of receipt form;
(3) 
Document through written reports all results of laboratory tests conducted;
(4) 
Publicize and disseminate drug program education materials and oversee training and education sessions regarding drug use and rehabilitation; and
(5) 
Coordinate all duties wherever possible to conserve resources and to efficiently and speedily accomplish reliable and accurate testing objectives.
(2002 Code, sec. 31.25)
The city will provide employees, including terminated employees, and their families with referral for assistance in resolving or accessing treatment for addiction to, dependence on or problems with alcohol, drugs or other personal problems adversely affecting their job performance. The cost of treatment, counseling or rehabilitation resulting from EAP referral will be the responsibility of the employee.
(2002 Code, sec. 31.26)
The sale, use, purchase, transfer or possession of an illegal drug or drug paraphernalia is a violation of the law. The city will report information concerning possession, distribution or use of any illegal drugs to law enforcement officials and will turn over to the custody of law enforcement officials any such substances found during a search of an individual or property. Searches will only be conducted of individuals based on reasonable cause; and only of their vehicles, lockers, desks, and closets when based on reasonable suspicion. The city will cooperate fully in the prosecution and/or conviction of any violation of the law. Violation of the law under this section shall be grounds for immediate termination of employment.
(2002 Code, sec. 31.27)
(a) 
The city reserves the right to interpret, change, suspend, cancel or dispute, with or without notice, all or any part of these regulations. Employees will be notified before implementation of any change.
(b) 
Although adherence to the regulations in this article is considered a condition of continued employment, nothing in this article alters an employee’s status, and this article shall not constitute nor be deemed a contract or promise of employment. Employees remain free to resign their employment at any time for any or no reason without notice, and the city retains the right to terminate any employee at any time for any or no reason without notice.
(2002 Code, sec. 31.28)
EMPLOYEE ACKNOWLEDGMENT
I acknowledge that I have received a copy of the Drug-Free Workplace Policy. I also acknowledge that the provisions of the policy are part of the terms and conditions of my employment and that I agree to abide by them.
Date:
Signature of Employee
Print Name
Employee Social Security Number
(2002 Code, sec. 31.29)