[Adopted 5-20-1996]
The United States Department of Transportation
(DOT) has issued regulations pursuant to the Omnibus Transportation
Employee Testing Act of 1991 which govern the use of drugs and alcohol
by drivers of commercial motor vehicles and which also require Villages
to conduct mandatory drug and alcohol testing of covered drivers.
The regulations require testing to begin on January 1, 1996. It is
the intention of the Village of Sea Cliff to comply fully with the
law and with DOT's regulations governing drug and alcohol use and
testing. In the event DOT's regulations are amended, the Village reserves
the right to apply the amended requirements immediately.
A.
This policy shall apply to all career employees of
the Village who possess a New York State Commercial Drivers License
(CDL) and who may be required to drive a vehicle of a size or type
requiring a CDL, regardless of how frequently.
B.
This policy shall also apply to all applicants for
positions with the Village as a driver of a commercial motor vehicle,
regardless of whether they are a new applicant or a current employee.
All candidates 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 a driver
will be conditioned on their compliance with it.
C.
Members of the Volunteer Fire Department in their
capacity as fire apparatus drivers are excluded under this policy.
The following definitions apply to words, terms
and phrases used in the context of this policy:
Any occurrence involving a commercial motor vehicle operating
on a public road which results in a fatality or a driver being cited
for a moving traffic violation.
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 under this policy.
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/trailers
used to transport passengers or property that has a gross combination
weight rating of 26,001 or more pounds, inclusive of a towed unit
with a gross vehicle weight rating of more than 10,000 pounds or has
a gross vehicle weight rating of 26,001 or more pounds.
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 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.
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.
The following activities by an employee who holds a federally
required CDL:
All time at or on Village property, or on any
public property, waiting to be dispatched, unless the driver has been
relieved from duty by the general foreman;
All time inspecting equipment as required by
federal regulations or otherwise inspecting, servicing or conditioning
any commercial motor vehicle at any time;
All time spent driving a federally defined commercial
motor vehicle;
All time, other than driving time, in or upon
any commercial motor vehicle;
All time loading or unloading a vehicle, supervising
or assisting in the loading or unloading, attending a vehicle being
loaded or unloaded remaining in readiness to operate the vehicle;
All time spent performing the driver requirements
under federal regulations relating to accidents; or
All time repairing, obtaining assistance or
remaining in attendance upon a disabled vehicle.
Any of the following:
Any substance 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;
An amphetamine or any formulation thereof;
A narcotic drug or any derivative thereof; or
Any other substance to a degree which renders
the driver incapable of safely operating a motor vehicle.
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, post-accident or follow-up test as directed by or on behalf
of the Village.
Any of the following:
Fail 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;
Fail 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
Engage in conduct that clearly obstructs the
testing process.
Any of the following:
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.
A.
Supervisory responsibility.
(2)
The Superintendent of Public Works or a designee shall:
(a)
Adopt any work rules necessary to implement
this policy and comply with the Act and DOT regulations.
(b)
Distribute to covered employees drug and alcohol
testing educational material that complies with federal regulations.
(c)
Remain abreast of methods and procedures that
may be used to determine whether reasonable suspicion exists to test
an employee for alcohol misuse or illegal drugs.
(3)
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.
B.
Required testing.
(1)
The Village is required to conduct drug and alcohol
tests under the following circumstances:
(a)
Preemployment and preduty (drug tests only).
(b)
Following certain accidents.
(c)
On a random basis.
(d)
Upon a reasonable suspicion.
(e)
Upon a return to duty after engaging in conduct
that is illegal under the Act or under regulations issued pursuant
to it.
(f)
Periodic follow-up testing for individuals engaging
in conduct that is illegal under the Act or under regulations issued
pursuant to it.
(2)
Any applicant, required to be tested under federal
law, who refuses or fails to submit to a preemployment or preduty
drug and alcohol test as directed, or whose result is positive for
the drug test, 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 and alcohol test as directed, or whose
result is positive for the drug test, may be subject to discipline,
up to and including discharge, consistent with the labor agreement.
C.
Methods of testing. 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:
(1)
Procedures to ensure the correct identity of each
driver at the time of testing.
(2)
A chain of custody procedure to protect a driver's
urine specimen.
(3)
The use of "split" urine samples to allow for a verification
of an initial positive test.
(4)
The use of trained breath alcohol technician (BAT)
and DOT-approved testing devices for conducting alcohol tests.
(5)
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.
(6)
The confirmation of an initial positive urine test
by a second test.
(7)
The confirmation of an initial positive breath test
by a second test.
(8)
The Village's appointment of a qualified MRO to review
urine test results.
D.
Test results.
(1)
For alcohol tests.
(a)
In the event that an initial breath test registers
an alcohol concentration level that is less than 0.02, the test result
will be reported as a "negative," and no additional test will be required
at that time.
(b)
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.
(c)
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 additional disciplinary action
by the Village.
(2)
For drug tests. Before a urine test result will be
confirmed as positive for illegal drugs, the driver will be given
the opportunity to speak with the Village's MRO and 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. The driver will be notified by the Village and 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.
E.
Prohibited activities.
(1)
A driver for the Village shall not:
(a)
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.
(b)
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.
(c)
Use alcohol at any time while performing any
driving function.
(d)
Use alcohol within four hours prior to performing
any driving function.
(e)
Use alcohol for eight hours following an accident
or until the driver undergoes a post accident alcohol test, whichever
occurs first.
(f)
Refuse to submit to an alcohol or urine test.
(g)
Consume alcohol when notified of or informed
of being on call.
(h)
Fail to inform the Superintendent of Public
Works of therapeutic drug use.
(i)
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 a commercial motor vehicle.
(j)
Report for duty, remain on duty or perform driving
functions when testing positive for drugs.
(k)
Fail to inform the Superintendent of Public
Works of nontherapeutic drug use.
(2)
A driver, excluding applicants for covered driving
positions, who violates 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, in a manner consistent with
the labor agreement. 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 and may only be challenged or appealed by filing
a grievance under the labor agreement or by filing a complaint with
the appropriate federal agency. 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. 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 shall
be terminated.
F.
Consequences for engaging in prohibited activities.
(1)
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 an 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.
(2)
Any driver engaging in conduct prohibited by federal
law or regulation or this policy will be subject to disciplinary action
by the Village, up to and including discharge, consistent with the
negotiated labor agreement. A driver whose urine test result is positive
will also be subject to civil and criminal penalties imposed by DOT.
(3)
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.
(4)
Upon testing positive, a driver may file an appeal
with the Superintendent of Public Works, or other individual as may
be designated by the Village, by submitting written notice of the
grounds for an appeal within five days after the employee receives
notice of the test result. 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 disciplinary.
(5)
The Superintendent of Public Works shall provide the
employee and any representative who may appear on his/her behalf 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 controlled substance
test result, the Superintendent shall also take into account the test
results pertaining to the split sample. The union may appeal the decision
of the Superintendent by filing a Step 2 grievance.
G.
Village and MRO communications. An employee tested
for drugs must contact the Superintendent of Public Works and the
Village's MRO daily while awaiting the results of the test and must
also advise the Superintendent of their whereabouts and 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 Village and
the Village's MRO will be considered insubordinate and subject to
disciplinary action, up to and including discharge, in accordance
with the negotiated labor agreement. In addition, an employee who
fails to contact the Superintendent and the Village's MRO shall waive
his or her right to speak with the Village's MRO before a test is
confirmed to the Village as positive.
H.
Information on drugs and alcohol.
J.
Program confidentiality. 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.
