[HISTORY: Adopted by the Board of Trustees
of the Village of New Hyde Park 5-23-1996. Amendments noted where applicable.]
A.
The United States Department of Transportation (DOT)
has issued 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 and which also require the Village
to conduct mandatory drug and alcohol testing of covered drivers.
The regulations require testing to begin on January 1, 1996. It is
the Village's intention to comply fully with the law and with DOT's
regulations governing drug and alcohol use and testing. In the event
that DOT's regulations are amended, the Village reserves the right
to apply the amended requirements immediately.
B.
The Superintendent of Public Works or a designee shall:
(1)
Adopt any work rules necessary to implement this policy
and comply with the Act and DOT regulations;
(2)
Also develop drug and alcohol testing educational
material that complies with federal regulations for distribution to
covered employees;
(3)
Provide written notice to the union of any change
in this policy;
(4)
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; and
(5)
Provide for an informal appeal process, whereby an
employee may appeal a positive test.
C.
Any violation of this policy, the law or DOT regulations
by an employee shall be grounds for disciplinary action, up to and
including discharge in a manner consistent with the negotiated labor
agreement.
A.
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 DOT.
B.
All applicants for a position as a driver of a commercial
motor vehicle, regardless of whether they are new applicants or current
employees, will be notified of the Village's drug and alcohol testing
policy at the time they apply for a covered driver position with the
Village and that any offer of employment as such driver will be conditioned
on their compliance with it.
As used in this chapter, the following terms
shall have the meanings indicated:
The intoxicating agent in beverage alcohol, ethyl alcohol
or other low-molecular weight alcohols, including methyl and isopropyl
alcohol.
The alcohol in a volume of breath expressed in terms of grams
of alcohol per 210 liters of breath as indicated by an evidential
breath test.
The consumption of any beverage, mixture or preparation,
including any medication, containing alcohol.
Commercial driver's license.
A motor vehicle or combination of motor vehicles
that operates at normal highway speeds and has:
For alcohol testing, a second test, following a screening
test with a result of 0.02% or greater, that provides quantitative
data of alcohol concentration. For urine testing, a "confirmation
test" means a second analytical procedure to identify the presence
of a specific drug or metabolite which is independent of the initial
test. Such a test is one ordered and paid for by the employee by contacting
the lab which performed the initial test and requesting that a urine
sample be sent to a lab sought by the employee.
For the purpose of this policy, "covered employee" means
any person who is retained by the Village to drive a commercial or
other motor vehicle or operate mechanical equipment under the direction
and/or supervision of the Village for compensation paid by the Village.
Such compensation may be salary paycheck issued by the Village or
by voucher submitted to the Village for payment. The term "covered
employee" as used in this policy shall be synonymous with the term
"employee" as used in this chapter.
[Added 2-3-2015 by L.L. No. 1-2015]
Any employee required by federal law and regulation to possess
a CDL in order to operate a commercial vehicle as defined by federal
law and regulation. For the purposes of preemployment/preduty testing
only, the term "driver" includes a person applying to the Village
to drive a commercial motor vehicle.
These activities by an employee who holds a
federally required CDL:
Any substance currently or hereafter listed on Schedule I
of Appendix D to Subchapter B of Title 49 of the Code of Federal Regulations
or other substance identified in Schedule I.
A licensed physician responsible for receiving laboratory
results generated by the Village's drug testing program, who has knowledge
of substance abuse disorders and has appropriate medical training
to interpret and evaluate an individual's confirmed positive test
result, together with his or her medical history and any other relevant
biomedical information.
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, postaccident or followup test as directed by or on behalf
of the Village.
That a driver:
Fails to provide adequate breath for testing
without a valid medical explanation after the driver has received
notice of the requirement for breath testing in accordance with the
provisions of this policy;
Fails to provide adequate urine for testing
without a valid medical explanation after he or she has received notice
of the requirement for urine testing, in accordance with the provisions
of this policy; or
Engages in conduct that clearly obstructs the
testing process.
In alcohol testing, an analytical procedure to determine
whether a driver may have a prohibited concentration of alcohol in
his or her system. In urine testing, it means a screening to eliminate
negative urine specimens from further consideration.
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.
[Amended 12-17-2020 by L.L. No. 5-2020]
A.
The Village
is required to conduct drug and alcohol tests:
(1)
Preemployment
and preassignment (drug tests only);
(2)
Following
certain accidents: Any individual involved in a motor vehicle accident
while operating any Village vehicle shall be required to submit to
alcohol and drug testing, by urine, blood or other commonly accepted
practice, at a facility designated by the Village immediately following
(or as soon as practicable thereafter, as determined by the Village)
any such vehicular accident;
(3)
On a
random basis;
(4)
Upon
a reasonable suspicion;
(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
followup testing for individuals engaging in conduct that is illegal
under the Act or under regulations issued pursuant to it.
B.
Any applicant,
required to be tested under federal law, who refuses or fails to submit
to a test as directed will not be considered for employment with the
Village. A current worker who applies for a driver position and who
refuses or fails to submit to a drug test as directed or whose result
is positive for the drug test may be subject to discipline up to and
including discharge.
To ensure the integrity and accuracy of each
test, all specimen collection, analysis and laboratory procedures
shall be conducted in accordance with DOT rules. This includes, among
other things:
A.
Procedures to ensure the correct identity of each
driver at the time of testing;
B.
A chain-of-custody procedure to protect a driver's
urine specimen;
C.
The use of split urine samples to allow for a verification
of an initial positive test;
D.
The use of a trained breath alcohol technician (BAT)
and DOT-approved testing devices for conducting alcohol tests;
E.
The use of a federally approved lab as selected by
the Village or by a contractor that may be retained by the Village
to perform testing;
F.
The confirmation of an initial positive urine test
by a second test;
G.
The confirmation of an initial positive breath test
by a second test; and
H.
The Village's appointment of a qualified MRO to review
urine test results.
A.
For alcohol tests:
(1)
In the event that an initial breath test registers
an alcohol concentration level that is less than 0.02%, the test will
be reported as a negative and no additional test will be required
at that time.
(2)
In the event that an initial breath test yields a
result of 0.02% or greater, a second confirmatory test will be performed.
In the event that the confirmatory test registers less than 0.02%,
the test result will be reported to the Village as negative. Any driver
whose confirmatory test registers 0.02% or more but less than 0.04%
will be prohibited from driving until the next regularly scheduled
duty period but for no less than 24 hours after the test is given.
Such a driver may also be subject to additional disciplinary action
by the Village.
(3)
A driver who has a confirmatory test which registers 0.04% or greater 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 a disciplinary penalty as provided for in § 13-9, entitled "Penalties for offenses," in this statement of policy.
B.
For drug tests: Before a urine test result will be
confirmed to the Village as positive for illegal drugs, the driver
will be contacted by the Village's MRO and will be given the opportunity
to 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
Village as negative. If the MRO determines that a legitimate medical
reason for a positive result does not exist, the test result will
be reported to the Village as a positive. A driver who is informed
by the MRO that a positive has resulted 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.
A.
A driver for the Village will not:
(1)
Report for duty or remain on duty requiring the performance
of driving functions while the driver has an alcohol concentration
of 0.04% or greater;
(2)
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;
(3)
Use alcohol at any time while performing any driving
function;
(4)
Use alcohol within four hours prior to performing
any driving function;
(5)
Use alcohol for eight hours following an accident
or until the driver undergoes a postaccident alcohol test, whichever
occurs first;
(6)
Refuse to submit to an alcohol or urine test;
(7)
Consume alcohol when notified of or informed of being
on call;
(8)
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 commercial motor vehicle; or
(9)
Report for duty, remain on duty or perform driving
functions when testing positive for drug.
B.
A driver, other than applicants for covered driving positions, who violates any of these prohibitions will be subject to the actions mandated by the DOT and will also be subject to disciplinary action, up to and including discharge. Any action taken by the Village which is mandated by federal law or regulation shall not in any way be deemed to be disciplinary in nature. For those employees who need a CDL in order to perform work duties, the Village considers the CDL to be a qualification for employment. In the event that an employee is relieved of work duties as a result of a violation of federal regulations or this policy, the employee will not be assigned other work during a mandated absence. Appropriate accrued paid leave, if any, may be taken to permit an employee who is removed from work duties to remain in a full-pay status. An employee who tests positive for drugs a second time will be will be subject to a disciplinary penalty as provided for under § 13-9, entitled "Penalties for offenses," in this statement of policy.
A.
Any driver engaging in conduct prohibited under the
Act or under regulations issued pursuant to it shall not drive. Any
driver with a positive urine test or a breath alcohol test of 0.04%
or greater must satisfy any return-to-duty requirements and referral,
evaluation and treatment program prescribed by a SAP 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.
B.
Any driver engaging in conduct prohibited by federal law or regulation or this policy will be subject to disciplinary action by the Village, such penalties to be as provided for in § 13-9, entitled "Penalties for offenses," in this statement of policy. A driver whose urine test result is positive will also be subject to civil and criminal penalties imposed by DOT.
C.
Each driver who tests positive shall be advised by
the Village 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 SAP's and counseling and treatment programs. In some instances,
such programs may be available from the individual's health insurance
provider.
A.
First offense.
(1)
Federal statute states that the employee is prevented
from working until he tests negative.
(2)
The employee must enroll in a rehabilitation program,
at the employee's own expense.
(3)
The employee will be given a warning letter.
(4)
The employee will receive no compensation from the
employer. Accumulated sick time may be used and paid at his prevailing
rate. No vacation nor personal time may be used.
B.
Second offense.
C.
Third offense. The penalty shall be immediate dismissal.
A.
Upon testing positive, a driver may file an appeal
with the Superintendent or other individual as may be designated by
the Village by submitting written notice of the grounds for an appeal
within five calendar days after the employee receives notice of the
test result from the MRO. Following receipt of an employee's notice
of appeal, the Superintendent 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 Village is required to take under federal law or regulation
shall not be deemed to be discipline.
B.
The Superintendent shall provide the employee with
a written decision. In deciding an appeal from a positive breath or
urine test result, the Superintendent 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 Village
may provide. In deciding an appeal from a positive drug test result,
the Superintendent shall also take into account any test results pertaining
to the split sample.
An employee tested for drugs must contact the
Superintendent daily while awaiting the results of the test and must
also advise the Superintendent of his or her whereabouts and provide
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
Superintendent will be considered insubordinate and subject to disciplinary
action.
A.
Each employee will be provided with educational material
and information concerning:
In the event of a false positive error, the
Village shall follow the procedures mandated by federal regulations.
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.
[Amended 2-3-2015 by L.L. No. 2-2015]
The contact list shall be as follows:
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For Questions Regarding
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Contact
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Drug and alcohol testing requirements
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Tom Gannon, Superintendent
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Department of Public Works
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Incorporated Village of New Hyde Park
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498 Stewart Avenue
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New Hyde Park, NY 11040
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(516) 354-0064
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Village policy or educational material
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Cathryn Hillmann, Village Clerk-Treasurer
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Incorporated Village of New Hyde Park
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1420 Jericho Turnpike
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New Hyde Park, NY 11040
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(516) 354-0022
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Testing laboratories
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Comply Corporation
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105 Maxess Road, Suite 124
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Melville, NY 11747
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(631) 643-0500
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MRO services
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Comply Corporation
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105 Maxess Road, Suite 124
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Melville, NY 11747
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(631) 643-0500
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Drug and alcohol counseling
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National Association of Alcoholism and Drug Abuse Counselors
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1 (800) 548-0497
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