[1]
Editor's note — Prior history: AO No. 98-5(S), 2-10-1998; AO No. 99-143, 11-23-1999; AO No. 2005-78, 6-28-2005; AO No. 2006-100, 7-25-2006; AO No. 2019-42, 4-23-2019; AO No. 2020-24, 3-10-2020; AO No. 2023-111(S), 11-7-2023.
As used in this Rule 19, the following words and phrases shall have the meanings indicated unless the context clearly indicates otherwise:
"Alcohol"
means ethyl alcohol (ethanol) in a beverage or medication.
"Breath alcohol technician (BAT)"
means a municipal supervisor or collection site technician trained and certified in the use of a DOT approved evidential breath testing device.
"DOT"
means the U.S. Federal Department of Transportation.
"Employee"
means any person in the employ of the municipality whose activities are directed by the municipality. Within this definition:
1. 
"Covered employee"
means only those classes of employee:
a. 
Subject to drug testing as required by Titles 14 and 49 Code of Federal Regulations;
b. 
Subject to reporting and regulation under the Alaska Police Standards Council; and
c. 
Subject to any other mandatory Federal or State drug testing requirement.
2. 
"Non-covered employee"
means all other classes of employee not explicitly defined as "covered."
"Prohibited drugs"
means substances listed Schedule I or Schedule II of the Controlled Substances Act 21 U.S.C. 801 et seq. and published at 21 CFR 1308.11 and 21 CFR 1308.12.
"Substance misuse"
means use of prohibited drugs or inappropriate consumption of alcohol, prescription drugs, and/or over-the-counter medication.
"Substance misuse test"
means a breath alcohol test or a saliva, blood, or urinalysis drug test.
"Work-related accident"
means an accident either occurring in the workplace or in the course of an employee performing work within the scope of their employment on behalf of the municipality.
(AO No. 2023-101(S), § 1, 11-9-2023)
A. 
It is the policy of the Municipality of Anchorage to provide a drug free workplace to its employees and to eliminate substance misuse within its workforce; as such, the use, manufacture, distribution, and possession of alcohol and drugs are prohibited at the municipal workplace, and, to the greatest extent possible, education and substance use disorder treatment shall be prioritized over termination to address employee substance misuse.
B. 
Testing. The municipality shall use substance misuse testing of employees or applicants for employment only to the extent required by federal and state laws or regulations. The human resources department shall publish and publicly post a Policy/Procedure outlining:
1. 
The substances for which employees or applicants may be tested;
2. 
The specific circumstances under which an employee or applicant may be tested for substance misuse; and
3. 
The procedures that will be used to test for substance misuse, protect the employee or applicant and the integrity of the drug and alcohol testing process, safeguard the validity of the test results, ensure the test results are attributed to the correct employee or applicant, and protect the privacy of the employee to the greatest extent possible.
C. 
Self-reporting. Employees who voluntarily self-report their substance misuse or their enrollment in a rehabilitative program prior to testing positive for substance misuse may not be disciplined or terminated on the basis of their report. A self-report is only considered voluntary if made prior to an event putting the employee on notice that they will be asked to submit to a drug test under section 3.30.193. The department of human resources shall establish procedures to provide self-referring employees necessary assistance to address their substance misuse while maintaining a drug and alcohol free workplace.
D. 
Precedence of law. In the event of any inconsistency between state or federal regulations and these provisions, the applicable state or federal law or regulation shall govern.
(AO No. 2023-101(S), § 1, 11-9-2023)
A. 
Alcohol.
1. 
Alcohol level breath testing shall be performed by a BAT. An employee's direct supervisor may not perform as a BAT except in circumstances where there is no other BAT readily available.
2. 
Covered employees shall be tested on an evidential breath testing device, according to 49 CFR, Part 655.
B. 
Prohibited Drugs.
1. 
Employees may only be tested for the misuse of prohibited drugs listed in 49 CFR Part 655 and only under the provisions of section 3.30.193. Use of prohibited drugs shall not be considered a violation of the substance misuse policy when properly used pursuant to a valid prescription or otherwise authorized by state or federal law.
a. 
Non-covered employees. For the purposes of this subsection, AS 17.38 and Anchorage Municipal Code Chapter 10.80 shall be deemed appropriate legal authorization for non-covered employees to consume marijuana, provided they do not possess, consume, or are under the influence of marijuana at their workplace or while performing duties on behalf of the municipality.
b. 
Covered employees. For the purposes of this subsection, AS 17.38 and Anchorage Municipal Code Chapter 10.80 shall not be deemed appropriate legal authorization for covered employees to consume marijuana, and marijuana shall continue to be considered a prohibited substance under section 3.30.192B.1.
2. 
Unless provided otherwise in this rule, when testing for use of prohibited drugs, the most current applicable cutoff levels established by the DOT shall be used to determine a positive result.
C. 
Marijuana.
1. 
Covered employees. Covered employees are subject to testing for marijuana under applicable DOT or state standards, and therefore shall be tested under the provisions of section 3.30.192B.2.
2. 
Non-covered employees. While at the workplace or performing duties for the municipality, the use, possession, or being under the influence of marijuana shall be considered substance misuse by non-covered employees. Non-covered employees may not perform duties on behalf of the municipality within eight hours of consuming marijuana. For testing of non-covered employees under this subsection:
a. 
Testing for the presence of marijuana shall be through collection of saliva; and
b. 
The cutoff level for determining a positive result shall be equal to or greater than 25 ng/ml of Delta 9 Tetrahydrocannabinol.
(AO No. 2023-101(S), § 1, 11-9-2023)
Substance testing shall only be conducted under the provisions of this section through procedures established by the department of human resources in a published Policy/Procedure. With the exception of marijuana testing of non-covered employees, the procedures shall conform to the requirements 49 CFR Part 40.
A. 
Testing. All employees shall be subject to testing under this subsection.
1. 
Reasonable suspicion. Reasonable suspicion testing shall be conducted when there are reasonable and specific grounds to believe that the poor performance or unsafe acts of an employee are due to substance misuse.
a. 
The determination shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee.
b. 
The human resources department shall be responsible for publication of a "Reasonable Suspicion Observation Checklist" which shall be utilized to assist in making reasonable suspicion determinations.
2. 
Post-accident. Following a work-related accident, each employee directly involved in or contributing to the accident shall be tested for alcohol and drugs when the accident involved:
a. 
The loss of human life;
b. 
Bodily injury to any person who, as a result of the injury, immediately requires medical treatment away from the scene of the accident; or
c. 
One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
3. 
Return-to-duty and follow-up testing.
a. 
Testing under this section may be conducted:
i. 
When an employee voluntarily self-reports a substance misuse problem under the provisions of section 3.30.191C and enters an educational or treatment program;
ii. 
When an employee has violated Municipal Policy/Procedure or Rule 19 and as a condition of continued employment agrees to a return-to-duty process; or
iii. 
After an employee has notified their supervisor of the employee's participation in a substance misuse treatment program.
b. 
Testing of covered employees under this subsection shall be governed by the provisions of 49 CFR 40.
c. 
Testing of non-covered employees under this subsection shall be governed by the provisions of a policy/procedure established by human resources.
B. 
Testing specific to covered employees. Only those employees classified as covered employees shall be subject to testing under the provisions of this subsection.
1. 
Pre-employment. Pre-employment drug and alcohol testing shall be conducted at the most cost-effective time in the selection process for covered employee positions.
a. 
A non-covered employee who transfers, is promoted, demoted, rehired, or is reinstated, to a covered employee position shall be required to complete a pre-employment drug test.
b. 
Failure to take and successfully pass the substance misuse test shall disqualify the applicant.
2. 
Random. Random testing shall only be applicable to those employees required by federal or state government regulations and will be administered in accordance with the applicable federal or state regulations.
(AO No. 2023-101(S), § 1, 11-9-2023)
A. 
Education, treatment and discipline. The human resources department shall publish a comprehensive substance misuse policy which prioritizes education and treatment over separation for employees testing positive for alcohol or prohibited drugs. Subject to the limitations within this section, the policy shall outline processes for provision of education, referral to treatment, and progressive discipline, up to and including termination and/or disqualification from employment consideration, on a case-by-case basis, in accordance with AMC Section 3.30.092.
B. 
Negative dilute test results. In the event of a negative dilute test result, the provisions of 49 CFR Part 40 shall govern. Unless required by federal or state regulation, a negative dilute shall not be construed as a positive test or test refusal.
C. 
Positive test results.
1. 
A positive test may be considered grounds for disqualification from employment for either an applicant or an employee. The ultimate decision for employment, discipline, or termination, shall be at the discretion of the municipal manager.
2. 
In the event of a confirmed positive test, an employee shall be removed from duty immediately. Upon determination of the municipal manager, the employee may be subject to progressive discipline which may include, but is not limited to, required participation in a substance use disorder educational or treatment program, up to and including termination, or any other action required by state or federal regulation, depending on the severity of the incident.
3. 
Notwithstanding the terms of any imposed discipline or return-to-duty agreement, a negative test shall be required before an employee may return to duty.
D. 
Reapplication after a positive substance misuse test. An applicant who is disqualified or an employee who is terminated under this policy because of a positive substance misuse test result may not reapply for employment for at least six months after the disqualification or termination took place. Consideration for re-employment shall be at the discretion of the head of the supervising department or designee after consulting with the human resources director.
(AO No. 2023-101(S), § 1, 11-9-2023)