Town of Van Buren, NY
Onondaga County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Van Buren as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Investment policy — See Ch. 36
Procurement policy — See Ch. 50.
[Adopted 8-25-1993]
A. 
All employees are required to report to work in appropriate mental and physical condition. Reporting to work, or working, under the influence of a controlled substance (without a physician's prescription) is prohibited.
B. 
The criminal use, manufacture or distribution of a controlled substance on either company or client property is prohibited.
C. 
Employees are required to report any drug-related criminal conviction in accordance with the law. A written report of conviction must be made to the Town Supervisor within five days of the conviction.
Employees who violate this policy are subject to the following disciplinary action:
A. 
The manufacture or distribution of controlled substances at the offices or on the property of the town will result in termination.
B. 
The use of a controlled substance at any workplace of the Town of Van Buren or on town property (or while conducting town business) is grounds for disciplinary action which may include suspension or termination.
C. 
The failure to report any drug-related criminal conviction as outlined in § 45-1C above will result in termination.
[Adopted 1-1-1996]
To establish a town-based alcohol and drug testing program to help prevent accidents and injuries resulting from the misuse of alcohol and drugs by covered drivers of commercial motor vehicles in compliance with the Department of Transportation Regulations codified at 49 CFR Part 40, and 49 CFR Part 382, and pursuant to the Omnibus Transportation Employee Testing Act of 1991, enacted October 28, 1991.
This article applies to all town employees who operate commercial motor vehicles and who are subject to the commercial drivers license (CDL) requirements established by the DOT.
The objectives of this article are to:
A. 
Establish rules and procedures to deter all illegal drug use, and deter on-duty, pre-duty and post-accident alcohol use, as well as on-duty alcohol impairment stemming from pre-duty use, for all covered drivers who perform safety sensitive functions.
B. 
Detect and eliminate the possibility that town covered drivers will perform safety-sensitive functions after testing positive for alcohol or drugs.
C. 
Comply with applicable federal and state laws, including the Omnibus Transportation Employee Testing Act of 1991.
D. 
Provide reasonable measures for the early detection of personnel not fit to perform activities within the scope of this article.
E. 
Maintain a workplace free of drugs and alcohol.
F. 
Inform employees through education, in service training and other appropriate forums, about illegal drugs and alcohol abuse, their use, possession, distribution and the effects of such substances.
There are several occasions when an individual will be subject to drug and alcohol screening tests pursuant to this article. Prior to the administration of the following tests, the town or its testing agent will notify the covered driver that the test is required under the Code of Federal Regulations. The testing occasions shall include:
A. 
Pre-duty testing. Pre-duty testing is testing for drugs and, independent of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, testing for alcohol and which the town will administer after a conditional offer of employment has been extended and prior to any covered driver's performance of a safety-sensitive function. The town will not allow any covered driver to commence the performance of any safety-sensitive function unless the alcohol testing reveals an alcohol concentration of less than 0.04 and the drug testing reveals a verified negative test result. If the pre-duty alcohol test reveals an alcohol concentration of 0.02 or greater but less than 0.04, the covered driver will not be allowed to perform safety sensitive functions for 24 hours following the administration of the test. In addition, independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, if the pre-duty alcohol test reveals an alcohol concentration of 0.02 or greater, it will result in a revocation of the conditional offer of employment. Also, independent of the Omnibus Transportation Employee Testing Act of 1991 and the regulations thereunder, if the pre-duty drug testing reveals a presence of drugs, it will result in the revocation of the conditional offer of employment. If the pre-duty tests of an existing employee of the town, not previously subject to testing under these regulations, reveals an alcohol concentration of 0.02 or greater, or a positive test result for drugs, it will result in the revocation of the conditional offer of employment and subject the employee to disciplinary action by the town as set forth in these regulations. The town may, in its sole discretion, forgo pre-duty testing where the exceptions promulgated at DOT 49 CFR 382.301(b) or (c), relating to drug and alcohol testing of covered drivers by their previous employers, are satisfied.
B. 
Reasonable suspicion testing.
(1) 
Reasonable suspicion testing is alcohol and drug testing that the town will conduct when it has reasonable suspicion to believe that a covered driver has engaged in conduct prohibited by this article. (Reasonable suspicion testing will not be conducted based upon the suspicion that a covered driver has violated the provision of this article prohibiting covered drivers from being on-duty or operating commercial motor vehicles while the driver possesses unmanifested alcohol.) Reasonable suspicion must be based upon specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of a covered driver by a Town Supervisor who is specially trained to recognize alcohol misuse or drug use.
(2) 
The town shall not administer a reasonable suspicion alcohol test more than eight hours following a determination that reasonable suspicion exists to believe that the alcohol prohibitions of this article have been violated. Notwithstanding the absence of a reasonable suspicion alcohol test, the town will not permit any covered driver to report for duty or remain on duty requiring the performance of a safety-sensitive function while the driver is under the influence of or impaired by alcohol as shown by the behavioral, speech and performance indicators of alcohol misuse, until an alcohol test is administered and the driver's alcohol concentration measures less than 0.02 or 24 hours have elapsed following a determination that reasonable suspicion exists to believe that the alcohol prohibitions of this article have been violated. Notwithstanding the existence of reasonable suspicion of a violation of these regulations, in no event shall a covered driver be suspended from employment without pay except upon and until the occurrence of a positive alcohol or drug test as provided in § 45-12 of this article.
(3) 
A written record shall be made of observations leading to reasonable suspicion, signed by the supervisor or person who made the observations, within 24 hours of the observed behavior or before the results of drug test are released, whichever is earlier.
(4) 
Covered drivers are subject to reasonable suspicion alcohol testing as follows: immediately prior to performing safety sensitive functions, while performing safety sensitive functions or immediately following the performance of safety sensitive functions. Reasonable suspicion drug testing may be conducted at any time the covered driver is on duty for the town.
C. 
Random testing. Random testing is unannounced testing for alcohol and drugs administered in a statistically random manner throughout the year to covered drivers employed by the town in ratios as required by the DOT regulations, so that all covered drivers have an equal probability of selection each time a random test is administered. Covered drivers are subject to random alcohol testing as follows: immediately prior to performing safety sensitive functions or while performing safety sensitive functions or immediately following the performance of safety sensitive functions. Random drug testing may be conducted at any time the covered driver is on duty for the town.
D. 
Post-accident testing.
(1) 
A post-accident test is a test for alcohol and drugs administered following an accident involving a commercial motor vehicle to each surviving covered driver:
(a) 
Who was performing safety sensitive functions with respect to the vehicle, if the accident involved the loss of human life.
(b) 
Who receives a citation under state or local law for a moving violation arising from the accident, if the accident resulted in bodily injury to a person who as a result of the injury immediately receives medical treatment away from the scene of the accident.
(c) 
Who receives a citation under state or local law for a moving violation arising from the accident, if the accident resulted in one or more motor vehicles incurring disabling damages as a result of the accident requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle.
(2) 
The town will not administer a post-accident alcohol test more than eight hours following the accident and will not administer a post-accident drug test more than 32 hours following the accident. A covered driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the town to have refused to submit to testing. This shall not be construed to require the delay of necessary medical attention for injured individuals following an accident or to prohibit a covered driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care. The results of a breath or blood test for the use of alcohol or a urine test for the use of drugs, conducted by federal, state or local officials having independent authority for the test, shall be considered to meet the requirements of this article concerning post-accident testing, provided that such tests conform to applicable federal, state or local requirements and that the results of the test are obtained by the town.
E. 
Return-to-duty testing. Return-to-duty testing is alcohol and drug testing conducted after a covered driver has engaged in prohibited conduct under this article, completed counseling prescribed by a substance abuse professional, if any, and prior to his return to the performance of a safety-sensitive function. Before a covered driver may return to the performance of safety sensitive functions, he/she must undergo return-to-duty testing with an alcohol test result indicating an alcohol concentration of less than 0.02 and/or a drug test indicating a verified negative result for illegal drugs. All costs associated with return-to-duty testing will be the responsibility of the covered driver (subject to the financial limitation specified hereafter in Subsection F).
F. 
Follow-up testing. Follow-up tests are given following a determination by the substance abuse professional (SAP) that a driver is in need of assistance in resolving problems associated with misuses of alcohol and/or drugs. This is an unannounced test, given at least six times within 12 months with the actual frequency and number of tests determined by the substance abuse professional (SAP), but in no event may the follow-up testing continue for a period beyond 60 months from the covered driver's return to duty. The substance abuse professional may terminate the requirement of follow-up testing at any time after the first six tests have been administered if (s)he determines that follow-up testing is no longer necessary. Covered drivers are subject to follow-up alcohol testing as follows: immediately prior to performing safety sensitive functions, or while performing safety sensitive functions, or immediately following the performance of safety sensitive functions. Follow-up drug testing may be conducted at any time the covered driver is on duty for the town. All costs associated with follow-up testing up to the amount of $350, including the cost of return-to-duty testing, will be the covered driver's responsibility and any time spent with regards to follow-up testing will be without pay. After the covered driver's combined expenditures for return-to-duty testing and follow-up testing have reached $350, the town shall then be responsible for the cost of further follow-up testing. If a covered driver has leave accruals, the covered driver may elect to use the leave accruals for all time spent submitting to follow-up testing.
As used in this article, the following terms shall have the meanings indicated:
ALCOHOL
The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl and isopropyl alcohol.
ALCOHOL USE
The consumption of any beverage, mixture or preparation, including any medication containing alcohol.
BREATH ALCOHOL CONCENTRATION (SAC) OR ALCOHOL CONCENTRATION
The amount of alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath indicated by an evidential breath test.
BREATH ALCOHOL TECHNICIAN (BAT)
An individual who operates a evidential breath-testing device and instructs and assists individuals in the alcohol testing process.
COMMERCIAL MOTOR VEHICLE
A motor vehicle or a combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
A. 
Has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;
B. 
Has a gross vehicle weight rating of 26,001 or more pounds;
C. 
Is designed to transport 16 or more passengers, including the driver; or
D. 
Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Material Regulations (49 CFR Part 72, Subpart F).
CONFIRMATION TEST
In drug testing, a second analytical procedure to identify the presence of a specific drug or metabolite that is independent of the screening test and that uses a different technique and chemical principle from that of a screening test in order to ensure reliability and accuracy. Gas chromatography/mass spectrometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines and phencyclidine. In alcohol testing, a second test following a screening test with a result of 0.02 or greater that provides quantitative data of alcohol concentration.
COVERED DRIVER
Any person who operates a commercial motor vehicle for the town. This includes, but is not limited to: full-time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent, owner-operator contractors who are either directly employed by or under lease to the town or who operate a commercial motor vehicle at the direction of or with the consent of the town. For the purposes of pre-duty testing only, the term "covered driver" includes an individual applying for a position with the town requiring the applicant to drive a commercial motor vehicle.
DRUG AND ALCOHOL COORDINATOR
The OCM BOCES Drug and Alcohol Coordinator, Mr. Peter A. Colucci, who shall be located at 6820 Thompson Road, Syracuse, New York 13221, and may be reached at (315) 433-2629.
EVIDENTIAL BREATH TESTING DEVICE (EBT)
A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHTSA's conforming product's list of evidential breath measurement devices (CPL).
MEDICAL REVIEW OFFICER (MRO)
A licensed physician responsible for receiving laboratory results generated by the town's drug test program, who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his or her medical history and any other relevant biomedical information.
A. 
A covered driver who:
(1) 
Fails to provide adequate breath for testing without a valid medical explanation after he or she has received a notice of the requirement for the breath testing;
(2) 
Fails to provide adequate urine for drug testing without a valid medical explanation after he or she has received notice of the requirement for urine testing;
(3) 
Engages in conduct that clearly obstructs the testing process; or
(4) 
Otherwise refuses to submit, will be classified as having refused to submit to an alcohol or drug test.
B. 
A refusal to submit to either an alcohol or drug test will carry the same consequences as a failure of a required test.
SAFELY SENSITIVE FUNCTION
Any of those on-duty functions (promulgated at 49 CFR 395.2 On-Duty time) as listed below:
A. 
All time at a carrier or shipper plant, terminal, facility or other property, waiting to be dispatched, unless the driver had been relieved from duty by the town.
B. 
All time inspecting equipment as required by the Federal Motor Carrier Safety Regulations (FMCSR'S), or otherwise inspecting, servicing or conditioning any commercial motor vehicle at any time.
C. 
All time spent at the driving controls of a commercial motor vehicle in operation.
D. 
All time, other than driving time, spent on or in a commercial motor vehicle (except for time spent resting in the sleeper berth).
E. 
All time spent loading or unloading a commercial motor vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded.
F. 
All time spent performing the driver's requirements associated with an accident promulgated at 49 CFR 392.40 and 392.41.
G. 
All time repairing, obtaining assistance or remaining in attendance upon a disabled vehicle.
SCREENING TEST
In alcohol testing, means an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system. In drug testing, an immunoassay procedure to eliminate "negative" urine specimens from further consideration.
SUBSTANCE ABUSE PROFESSIONAL
A licensed physician (medical doctor or doctor of osteopathy) or 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 of and clinical experience in the diagnosis and treatment of alcohol and drugs-related disorders.
Alcohol testing will be administered by a breath alcohol technician (BAT) who has completed the equivalent of the DOT's model course, as determined by the National Highway and Traffic Administration, and who is trained in utilizing an evidential breath testing device (EBT) that conforms to the DOT requirements. The EBT used for testing shall meet the standards promulgated by the DOT and have a quality assurance plan (QAP) developed by the manufacturer to insure proper calibration. Testing will be conducted in a location that affords visual and aural privacy to individuals being tested. If the initial test reveals an alcohol concentration of 0.02 or greater, a confirmatory test must be performed. The confirmatory test result is the final test result for the purposes of this article. If the final test result reveals an alcohol concentration greater than 0.02 but less than 0.04, the covered driver will be suspended from performing safety-sensitive functions for 24 hours. If the alcohol concentration is 0.04 or greater, the covered driver will be suspended from the performance of safety sensitive functions for an indefinite period (for an in-depth explanation of the alcohol testing procedures please refer to Appendix A; for an in-depth explanation of the consequences of positive alcohol test results, see § 45-12 of this article).
A. 
Drugs.
(1) 
A Department of Health and Human Services certified laboratory will perform drug testing on urine samples provided by covered drivers. The drugs for which tests will be conducted are:
(a) 
Marijuana (THC).
(b) 
Cocaine.
(c) 
Phencyclidine (PCP).
(d) 
Opiates.
(e) 
Amphetamines.
(2) 
The cutoff levels for these drugs will be those set forth in the DOT regulation.
(3) 
The town will contract with the certified laboratory to ensure that the collection, shipment, testing and chain of custody procedures ensure the integrity of the testing process in accordance with the procedures set forth in the regulations.
(4) 
The split sample urine collection method will be utilized. This method requires that the urine specimen be divided into two samples providing one sample for preliminary screening and initial confirmation and a second sample for the second test if needed at a later date. Independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, the town requires that the cost for testing this split sample will be the covered driver's responsibility if the covered driver elects to have the second sample tested. If the result of the split sample test invalidates the original positive result, the covered driver will be reimbursed for the cost of the split sample test.
(5) 
The MRO will conduct a final review of all positive test results to assess possible alternative medical explanations for the positive test results (for an in depth explanation of the drug testing procedures, please refer to Appendix A).
B. 
Alcohol and drugs.
(1) 
The town will ensure that alcohol and drug test information is maintained in a confidential manner in conformity with the Department of Transportation Rule 49 CFR Part 40.
(2) 
The town will ensure that all contracts between the town and any other entity involved in the alcohol and drug testing program will comply with the procedures set forth in the Department of Transportation Rule 49 CFR Part 40.
(3) 
The town will conform to the requirements in the Department of Transportation Rule 49 CFR Part 40 in all aspects.
C. 
Uncompleted testing. If a screening or confirmation test cannot be completed or if an event occurs that would invalidate the test, the BAT shall, if practicable, begin a new screening or confirmation test, as applicable, e.g., using a new breath alcohol testing form with a new sequential test number [in the case of a screening test conducted on an EBT that meets the requirements of 49 CFR 40.53(b) or in the case of a confirmation test].
A covered driver shall not refuse to submit to a post-accident alcohol or drugs test required under this article, a random alcohol or drug test required under this article, a reasonable suspicion alcohol or drug test required under this article or a follow-up alcohol or drug test required under this article. The town will not permit any covered driver to perform safety sensitive functions subsequent to a refusal to submit to a test required under the DOT regulations until the individual is evaluated by a substance abuse professional and completes a substance abuse program designed by a substance abuse professional, if any, and undergoes a return-to-duty alcohol test revealing an alcohol concentration of less than .02 and a drug test with a verified negative result. In other words, a refusal to submit to testing is the equivalent of an alcohol test revealing an alcohol concentration of 0.04 or greater or a drug test with a positive result. A refusal to be tested shall be defined as a refusal by an employee to complete and sign the breath alcohol testing form, to complete the drug screening chain of custody form, to provide breath, to provide an adequate amount of breath, to provide an adequate amount of urine or otherwise to cooperate with the testing process in a way that prevents the completion of the test. The BAT or collector shall record such refusal in the remarks section of the form. The testing process shall then be terminated, and the BAT or collector shall immediately notify the town.
A. 
Alcohol.
(1) 
No covered 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. The town shall not permit a covered driver to perform or continue to perform safety-sensitive functions if it has actual knowledge that a driver has an alcohol concentration of 0.04 or greater.
(2) 
A covered driver shall not be on duty or operate a commercial motor vehicle while the covered driver possesses alcohol, unless the alcohol is manifested and transported as part of a shipment. The town shall not permit a covered driver to drive or continue to drive a commercial motor vehicle if it has actual knowledge that a driver possesses unmanifested alcohol.
(3) 
A covered driver shall not use alcohol while performing safety sensitive functions. The town shall not permit a driver to perform or continue to perform safety-sensitive functions if it has actual knowledge that a driver is using alcohol while performing safety-sensitive functions.
(4) 
No covered driver shall perform safety-sensitive functions within four hours after using alcohol. The town shall not permit a driver to perform or continue to perform safety-sensitive functions if it has actual knowledge that a driver has used alcohol within four hours. [NOTE: The New York Vehicle and Traffic Law § 509-I, Subdivision 1-a, provides that "No person shall consume a drug, controlled substance, or an intoxicating liquor, regardless of its alcoholic content, or be under the influence of an intoxicating liquor or drug, within six hours before going on duty or operating, or having physical control of a bus." This article does not allow covered drivers to consume alcoholic beverages in violation of the requirements of New York law, which are stricter than the DOT regulations in this particular instance and should not be construed to authorize such conduct.]
(5) 
A covered driver required to take a post accident alcohol test shall not use alcohol for eight hours following the accident or until he/she undergoes a post-accident alcohol test, whichever is first.
B. 
Drugs.
(1) 
A covered driver shall not report for duty or remain on duty requiring the performance of safety sensitive functions when the driver is using drugs, except when the use is pursuant to the instructions of a physician who has advised the driver that the drug does not affect the driver's ability to safely operate a commercial motor vehicle. The town shall not permit a covered driver to report for duty or remain on duty requiring the performance of safety-sensitive functions if the town has actual knowledge that the driver is using drugs, except when the use is pursuant to the instructions of a physician who has advised the driver that the drug does not affect the driver's ability to safely operate a commercial motor vehicle.
(2) 
Independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder, the covered driver must notify the town that he/she is using controlled substances pursuant to the instructions of the physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a commercial motor vehicle.
A. 
The town shall make available to the covered driver information regarding the resources available for evaluating and resolving problems associated with the misuse of alcohol and use of drugs, including the names, addresses and telephone numbers of substance abuse professionals and counseling and treatment programs.
B. 
The town requires that each covered driver who engages in conduct prohibited by this article shall be evaluated by a substance abuse professional who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and drug use. The costs associated with this evaluation outside of those costs covered by the health insurance plan to which the covered driver is enrolled shall be the responsibility of the covered driver.
C. 
Before a covered driver returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by this article, the covered driver shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02 if the conduct involved alcohol or a drug test with a verified negative result if the conduct involved drugs.
D. 
Each covered driver identified as needing assistance in resolving problems associated with alcohol misuse or drug use shall:
(1) 
Be evaluated by a substance abuse professional to determine if the covered driver has properly followed any rehabilitation program prescribed under Subsection B.
(2) 
Be subjected to unannounced follow-up alcohol and drug tests administered by the town following the covered driver's return to duty. The number and frequency of the follow-up tests shall be as directed by the substance abuse professional and consist of at least six test in the first 12 months following the covered driver's return to duty. The town may direct the covered driver to undergo return-to-duty and follow-up testing for both alcohol and drugs, if the substance abuse professional determines that return-to-duty and follow-up testing for both alcohol and drugs is necessary for that particular covered driver. Such testing shall be in conformance with this article and the DOT regulations. Follow-up testing shall not exceed 60 months from the date of the covered driver's return to duty. The substance abuse professional may terminate the requirement at any time after the first six tests have been administered, if the substance abuse professional determines that such testing is no longer necessary.
(3) 
The evaluation and rehabilitation shall be provided by a substance abuse professional selected from the list of drug abuse and alcoholism treatment facilities attached to these regulations.[1] This list may be reviewed annually, and upon the consent of the town, treatment facilities may be added to or deleted from this list. The choice of a substance abuse professional shall be that of the town, and costs affiliated with evaluation and treatment outside of those costs covered by the health insurance plan to which the covered driver is enrolled shall be the responsibility of the covered driver.
[1]
Editor's Note: The list of treatment facilities is on file in the town offices.
(4) 
The town requires that a substance abuse professional who determines that a covered driver requires assistance in resolving problems with alcohol misuse or drug use does not refer the covered driver to the substance abuse professional's private practice or to a person or organization from which the substance abuse professional receives remuneration or in which the substance abuse professional has a financial interest.
(5) 
The requirements of this section with respect to referral, evaluation and rehabilitation do not apply to applicants who refuse to submit to a pre-duty alcohol or drug test or who have a pre-duty alcohol test with a result indicating an alcohol concentration of 0.04 or a drug test with a verified positive test result.
A covered driver shall not perform safety-sensitive functions, including driving a commercial motor vehicle, if the covered driver has engaged in conduct prohibited by this article or an alcohol or drug rule of any DOT agency. The town will not permit any driver to perform safety-sensitive functions, including driving a commercial motor vehicle, if said driver has tested positive for alcohol and/or drugs. The town will not permit any covered driver found to have an alcohol concentration of at least 0.02 and less than 0.04 to perform safety-sensitive functions for 24 hours following the administration of the test. A covered driver found to have an alcohol concentration of 0.02 or greater but less than 0.04 shall receive a twenty-four-hour suspension from the performance of safety-sensitive functions. Covered drivers who violate this article will be suspended from the performance of safety-sensitive functions and referred to a substance abuse professional. Before a covered driver may resume the performance of safety sensitive functions for the town, a substance abuse professional must certify that the covered driver has completed a prescribed substance abuse program, if any. In addition, the covered driver must pass an alcohol test with an alcohol concentration of less than 0.02 and/or a drug test prior to the return to the performance of safety-sensitive functions. Independent of the requirements of the Omnibus Transportation Employee Testing Act of 1991 and the regulations promulgated thereunder:
A. 
Covered drivers who have been found to have violated the prohibited conduct under this article will be immediately suspended from employment without pay. If the covered driver has leave accruals, the covered driver may elect to use the leave accruals for all periods of suspension under this article.
B. 
If the violation is for the illegal use of drugs in violation of this article, and after a review of all pertinent facts leading to the suspension and a review of the covered driver's work record to determine the appropriate disciplinary action, the covered driver shall be advised to seek assistance and/or counseling from a substance abuse professional comply with any recommended treatment and follow-up testing and complete a return to duty drug test with a negative result. If a covered driver is found to have violated this article a second time, the covered driver shall be subject to immediate termination.
C. 
If a covered driver refuses to submit to a post-accident drug test, a reasonable suspicion drug test, a random drug test or a follow-up drug test, the covered driver shall be subject to immediate termination.
D. 
If the covered driver's alcohol concentration, as measured by an alcohol test, is 0.02 or greater but less than 0.04, such an infraction shall result in a suspension without pay for 24 hours, and a review of the employee's work record for determination by the town of the appropriate disciplinary action. If a covered driver is found to have violated this article a second time, the covered driver shall be subject to immediate termination.
E. 
If the covered driver's alcohol concentration, as measured by an alcohol test, is 0.04 or greater, the covered driver shall be required to seek assistance and/or counseling from a substance abuse professional, comply with any treatment that may required, complete a return-to-duty test with an alcohol concentration of less than 0.02 and any follow-up testing that may be required. If the covered driver's alcohol concentration, as measured by an alcohol test, is 0.04 or greater, it shall result in a suspension without pay pending a review of the employee's work record for determination by the town of the appropriate disciplinary action. If a covered driver is found to have violated this article a second time, the covered driver shall be subject to immediate termination.
F. 
If the covered driver refuses to submit to a post-accident alcohol test, a reasonable suspicion alcohol test, a random alcohol test or a follow-up alcohol test, the covered driver shall be subject to immediate termination.
G. 
The above actions shall be taken in accordance with the provisions of the employee's collective bargaining agreement, or § 75 of the Civil Service Law, whichever is applicable.
The town shall provide a copy of this article to each covered driver and to his/her collective bargaining agent. Each covered driver is required to sign a statement certifying that (s)he has received this information. The town shall maintain the original signed certification for a minimum of two years. The town will provide a copy of the certification to the covered driver upon request.