[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:
(1) 
Marijuana (cannabinoids).
(2) 
Cocaine.
(3) 
Opium or opiates.
(4) 
Phencyclidine (PCP).
(5) 
Amphetamines or methamphetamine.
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) 
All drivers of Town's vehicles.
(b) 
Dispatcher.
(c) 
Vehicle maintenance work of any kind.
(d) 
Driver development and safety personnel.
(e) 
Employees holding CDL's.
(f) 
"Safety-sensitive functions" as defined by the FHWA and the FTA.
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.
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).
B. 
An employee placed on rehabilitation leave as provided in Subsection A of this section must satisfy the provisions of Subsections A(1), (2) and (3) not later than (12) weeks from his commencement of this personal leave. An employee failing to do shall deemed to have abandoned his/her job.
[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.
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.