[Adopted 3-11-1996]
A.
The United States Department of Transportation (D.O.T.)
has issued regulations (49 CFR 40, 382, 391, and 395) pursuant to
the Omnibus Transportation Employee Testing Act of 1991 (P.L. 102-143)
(Omnibus Act) which govern the use of drugs and alcohol by commercial
motor vehicle drivers and safety sensitive employees and which also
requires the Town of Milan to conduct mandatory drug and alcohol testing
of covered employees. The regulations required the testing to begin
on January 1, 1996.
B.
It is the Town of Milan intention to comply fully
with the Omnibus Act and the D.O.T.'s regulations governing drug and
alcohol use and testing, and the requirements of the D.O.T.'s regulations
are hereby incorporated into this policy. In the event that D.O.T.'s
regulations are amended, this policy and the applicable term(s) condition(s)
and/or requirement(s) of this policy shall be deemed to have been
amended automatically at that time, without the need of redrafting,
in order to reflect and be consistent with D.O.T.'s regulations. In
such case, the Town of Milan reserves the right to apply the amended
requirements immediately, and without giving prior notice to affected
employees, unless such notice is required by D.O.T. or other applicable
law.
C.
The Town of Milan shall arrange for training of all
supervisors who may be called upon to determine whether reasonable
suspicion exists to test a driver for alcohol misuse or controlled
substance abuse.
D.
Any violation of this policy, the Drug and Alcohol
Testing Educational Material Act or D.O.T. regulations by a covered
employee shall be grounds for disciplinary action, up to including
discharge, in a manner consistent with the Town of Milan preexisting
policies, practices and any other collective bargaining agreement.
E.
The Town of Milan shall also provide for an informal
administrative appeal process whereby a covered employee may appeal
a positive alcohol test and/or control substance test. Said process
shall not interfere with D.O.T. - mandated actions (e.g., removal
from safety-sensitive functions).
A.
Controlled substances. The presence, as evidence by
the results of an initial screen, and subsequent confirmatory test,
of the following substances is prohibited for any employee:
B.
Alcohol testing. Any employee who performs safety-sensitive
functions as defined below or who is required to obtain a CDL will
be subject to discipline, up to and including discharge, and the Town
or its contractors may risk losing its federal funding, if he/she;
(1)
Uses alcohol on the job;
(2)
Uses alcohol during the four hours before performing
a safety-sensitive function even if the alcohol is contained in prescription
medication. (If a driver is called to duty by the Town less than four
hours before their regular sign on time, they must indicate they are
unable to perform a safety-sensitive function, and no disciplinary
action shall result.)
(3)
Has prohibited concentrations of alcohol in his/her
system while performing safety-sensitive functions, as evidenced by
the results of an initial test and subsequent confirmation test, through
the use of testing devices as approved by the National Highway Traffic
Safety Administration.
(4)
Uses alcohol during the eight hours following an accident
if the employee's involvement has not been discounted as a contributing
factor in the accident or until the employees has been tested; or
(5)
Refuses to submit to a required alcohol test.
C.
Definitions.
(1)
FHWA. For purpose of alcohol testing for drivers required
to obtain CDL'S, the FHWA defines the term "safety sensitive " to
include all time in which the driver begins to work or is required
to be in readiness to work until that driver is relieved from all
work and responsibility, including:
(a)
All time spent at the terminal, facility or other
public property waiting to be dispatched, unless the driver has been
relieved from duty.
(b)
All time inspecting equipment or otherwise servicing
and/or commissioning any commercial vehicle at any time.
(c)
All driving time.
(d)
All time, other than driving time, in any commercial
motor vehicle.
(e)
All time spent performing post accident procedures.
(f)
All time repairing, obtaining assistance or remaining
in attendance upon disabled vehicle.
(2)
FTA. For purpose of alcohol testing for employees
who perform safety-sensitive functions where the Town of its contracts
receive federal funding under §§ 3, 9 or 18 of the
Federal Transit Act of 23 U.S.C., § 103(e)(4), the FTA defines
the term "safety-sensitive function" to include:
(a)
Operating a revenue service vehicle, including when
not in revenue service.
(b)
Operating a nonrevenue service vehicle to be operated
by a holder of a CDL.
(c)
Controlling the dispatch or movement of a revenue
service vehicle.
(d)
Maintaining a revenue service vehicle or equipment
used in revenue service, unless the the Town or its contractor is
operating under § 18 of the Federal Transit Act and contracts
out such services.
(3)
In addition to the FHWA's and FTA's definition of
the term "safety-sensitive function," the Town defines "safety-sensitive
function" to include the following position:
A.
Preemployment. Any applicant or current employee being
considered for a safety-sensitive function or a position requiring
a CDL or transfer into such position shall be required to pass a drug/alcohol
screens as defined in Federal D.O.T. regulations prior to being hired
into that position or performing any functions of the position. The
Town policy dictates that an alcohol concentration of less than 0.02
is required to pass the preemployment test.
B.
Reasonable cause.
(1)
Post accident.
(a)
Control substances.
[1]
Defined by Federal D.O.T. regulations as the
involvement by an employee in a motor vehicle accident while operating
a Town-owned or operated vehicle when such accident results in a fatality
and/or his/her performance contributed to the accident as evidenced
by the issuance of a citation. It is required that such post-accident
controlled substance testing take place no later than 32 hours after
the incident.
[2]
In the event that a driver is seriously injured
and cannot provide a urine specimen at the time of the accident, the
driver must provide the necessary authorization to obtain hospital
reports or documents that would indicate whether there was a controlled
substance in the driver's system.
(b)
Alcohol testing.
[1]
The Town policy is that an alcohol test will
be conducted as soon as practicable after an accident involving disabling
damage to a Town vehicle or when there is a fatality or bodily injury
requiring medical treatment away from the scene of the accident. The
Town will test every employee whose performance could have contributed
to the accident.
[2]
A driver who leaves the scene of an accident
or otherwise fails to remain readily available for testing will be
deemed to have refused to submit to an alcohol test and will be discharged.
Neither the Town's policy nor federal regulation prohibits an employee
from leaving the scene of an accident to secure emergency medical
care or obtain assistance in responding to the accident.
(2)
Reasonable suspicion.
(a)
Defined as the observed conduct of an employee on
the Town time or property which the Town determines to be suspicious
or extraordinary for that employee based on the appearance, behavior,
speech or body odors (e.g. physical symptoms, including but not limited
to slurred or other abnormal speech, irregular or unsteady gait, flushed
or agitated appearance, bloodshot eyes, dilated pupils, nonsensical
or irrational behavior or the smell of alcohol or marijuana). Only
management personnel trained in detecting the signs and symptoms of
prohibited substance use and/or alcohol abuse, who have actually observed
a driver's behavior, shall make such determinations.
(b)
For alcohol testing purposes only, reasonable suspicion
testing is only justified where a trained supervisor's observations
are made during, just before or after a time when a driver has performed
a safety-sensitive function.
(c)
A supervisor who makes an observation leading to a
reasonable suspicion alcohol test shall make and sign a written record
of his or her observation within 24 hours of making the observations,
or before the result of the test is released, whichever is earlier.
The actual alcohol test cannot be administered by the same supervisor
who made the determination of reasonable suspicion, even if that supervisor
is an otherwise qualified breath alcohol technician. If the required
alcohol test is not administered within two hours of the observation,
the supervisor must document why the test was not performed. A reasonable
suspicion alcohol test cannot be administered more than eight hours
after a determination of reasonable suspicion, and the reason for
the failure to test must be documented.
C.
Random screening.
(1)
Any employee assigned to a classification involving
the operation of passenger vehicles, including drivers, all holders
of CDL licenses, and all the Town employees performing "safety-sensitive"
functions, as defined by federal regulation or the Town, will be required
to submit to a drug and/or alcohol screen pursuant to a DOT approval
random method selection. The total number of random tests conducted
each year will be equal to at least 50% of the number covered employees
for drugs and 25% of the number covered employees for alcohol, or
as may be further required by Federal Highway Administration [FWHA
of the Federal Transit Authority (FTA)]. Some drivers may be tested
more than once each year, and some may not be tested at all depending
on random selection. The random method of selection shall be conducted
by an organization outside the Town, preferably the organization performing
the drug and/or alcohol screen.
(2)
For the purpose of alcohol testing only, a random
test will be conducted just before, during or just after all employee's
performance of safety-sensitive duties.
D.
Return-to-duty/Follow-up testing. Drivers who have
previously failed an alcohol test with a positive result of 0.02 -
0.039, or who have taken medical leave for voluntary rehabilitation,
must undergo a return-to-duty test before they are permitted to perform
any safety-sensitive functions. Pursuant to the Town policy, a driver
whose retest requires a positive result of 0.02 or greater will be
discharged.
A.
An employee required by the Town to submit to a drug
and/or alcohol screen must proceed immediately to the designated facility
to accomplish the urine specimen collection and/or alcohol test. Current
employees shall be paid for all time in submitting to screening.
B.
An employee who refuses to submit to any substance abuse test as provided in § 59-5 will be discharged.
C.
If an employee or applicant claims that he or she
is unable to provide a sufficient breath sample for an alcohol test,
then that employee must obtain a physician's statement confirming
the employee's inability to provide sufficient breath sample.
The normal screening methodology for drug screens
will be urinalysis. For alcohol testing, devices approved by the NHTSA
will be used and which may include saliva sampling and will include
Evidential Breath Testing (EBT) for confirmation of initial testing.
Employees and applicants shall be required to
comply with the procedures of the collection facility unless such
procedures violate the DOT testing laws and regulations.
An employee or applicant required to submit
to a drug and/or alcohol screen may request that another employee
be allowed to accompany him/her throughout the process, except when
a urine specimen is being provided. Such time spent by the witnesses
shall not be paid by the Town.
The Town shall designate the medical facility
to be used for the collection of the urine specimen and/or the alcohol
test; provided, however, that the designated facility shall possess
all required licenses and permits and shall have written procedures
for ensuring employees/applicant privacy, health and safety and the
security and chain-of-possession of samples. Such written procedures
shall be available to an affected employee or applicant, and the Town
shall discontinue use of any facility it learns has material violated
its written procedures so that an employee's or applicant's health
is threatened or the accuracy of the screening is compromised.
[1]
Editor's Note: The name and location of the
current designated collection facility is on file in the office of
the Town Clerk.
The Town shall designate the laboratory for
drug and/or alcohol tests; provided, however, that such designated
laboratory shall possess any required relevant licenses and permits
and shall have a written procedure for ensuring the security and chain-of-possession
of samples, the accuracy of its work and for the confidentiality of
its records and results. Further, such designated screening laboratory
must be approved by the Department of Health and Human Services (DHHS).
[1]
Editor's Note: The name and location of the
current designated screening laboratory is on file in the office of
the Town Clerk.
A.
Controlled substances.
(1)
All positive results of initial screening for controlled
substances shall be subjected to a GC/MS confirmatory test.
(2)
For controlled substances testing, each urine specimen
(45ml.) is subdivided into two bottles labeled as "primary" (30ml.)
and "split" (15ml.) specimen. If the analysis of the primary specimen
confirms the presence of illegal controlled substances, the employee
has 72 hours to request the split specimen be sent to another DHHS
certified laboratory for analysis, at the employee's expense.
B.
Alcohol testing.
(1)
All initial alcohol testing showing an alcohol concentration
of 0.02 or greater will be subject to a second confirmatory test using
an EBT device approved by NHTSA. The Town will record the results
between 0.00 and 0.019 but no confirmation test will be conducted.
(2)
Only a result which is positive (i.e. 0.02 or greater)
following both the initial and confirmatory analysis shall be reported
to the Town as a positive result.
A.
An employee who is required to submit to a drug and/or alcohol screen as provided in § 59-5A, Preemployment, and § 59-5B(1), Post-accident, of this policy shall not be assigned to operate any Town vehicle and/or perform safety-sensitive functions pending the outcome of such screening. The Town may, at its option, assign such employee to available nonsafety-sensitive duties or place him/her on temporary suspension.
B.
An employee whose drug and/or alcohol screen produces
a negative result shall be promptly returned to his/her former work.
Under no circumstances will an employee be made whole for any lost
wages on a negative result if he/she is suspended for any additional
purpose.
C.
An employee whose drug and/or alcohol screen produces
a positive result (0.02 or greater) shall not be made whole for any
wages lost while assigned as provided in this section and will be
subject to discipline, up to and including discharge.
An employee required to submit to a drug and/or
alcohol screen as provided in this policy and whose screening results
are negative (i.e., less than 0.02) shall have his/her personnel file
documented to reflect the negative result.
An employee who is required to undergo a drug screen and whose screening produces a positive result for prohibited substance as defined in § 59-4 of this policy will be discharged.
A.
Pursuant to the Town policy, an employee whose confirmation
alcohol test registers a positive result of 0.02-0.039 will be removed
from duty at least 24 hours or until his/her next regularly scheduled
shift, whichever is longer. Any employee who tests positive on more
than one occasion between 0.02 and 0.039 will be discharged.
B.
Pursuant to the Town policy, an employee whose confirmation
alcohol test result is equal to 0.04 or greater will be discharged.
An employee who voluntarily (not in response
to the Town request to take a drug/alcohol test or the positive result
of a drug/alcohol test) admits to management he/she has a drug/alcohol
problem and who wishes to submit to a rehabilitation program, must
sign Appendix A of this policy[1] and will be subject to the following:
A.
The employee shall be placed on unpaid medical leave
until:
(1)
He/she presents evidence of having enrolled in and
successfully completed at his/her own expense a rehabilitation approved
by the the Town;
(2)
He/she submits to return-to-duty drug and alcohol
screening at his/her own expense which produces a negative result;
and
(3)
He/she signs the Town's post-rehabilitation return-to-work
agreement which is attached to and expressly made part of this policy
(Appendix A).
[1]
Editor's Note: Appendix A is included at the
end of this Article.
An employee who has returned to work as provided in § 59-17 of this policy and who fails to comply with any terms of the post-rehabilitation return-to-work agreement will be discharged.
(See Appendix A[1] for usable format of the return-to-work agreement.)
[1]
Editor's Note: Appendix A is included at the
end of this Article.
All employees shall sign a receipt signifying
acceptance of the Town's Substance Abuse Testing Policy.
The Town must, pursuant to federal regulation,
retain its alcohol testing records in a secure location with controlled
access to such information. Records of positive test results of 0.02
and greater, refusals to submit to testing, annual testing summaries,
driver evaluations and referrals must be maintained for a minimum
of five years. Records relating to the testing collection process
(except calibration) and training must be maintained for a minimum
of two years. Records of negative test results and results less than
0.02 must be maintained for a minimum of one year.
A.
The Town is prohibited, by federal regulation, from
releasing a driver's alcohol testing records unless required by law
or otherwise authorized by federal regulations. Under federal regulations,
drivers are entitled to copies of their alcohol testing records and
may consent to a third party.
B.
The Town must obtain, pursuant to a driver's consent,
information on the driver's positive alcohol test results with a positive
result of 0.04 or greater and refusals to be tested within the previous
two years. As a result of this requirement, the Town must condition
an offer of employment on an applicant's release of his or her prior
records from a previous employer.
C.
If the Town receives information regarding impermissible
alcohol levels or refusals to be tested, then the Town cannot permit
that driver to perform a safety-sensitive function until that driver
has been certified as qualified by a substance abuse professional
and passes a preemployment alcohol test.[1]
[1]
Editor’s Note: Former Art. IV, Clerical Employees, adopted
6-12-2000, which immediately followed this subsection, was repealed
5-21-2012 by L.L. No. 2-2012.
