[Adopted by the Town Board of the Town of
Cazenovia 10-26-1995. Amendments noted where applicable.]
The purpose of this chapter is 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 Parts 40 and 382
and pursuant to The Omnibus Transportation Employee Testing Act of
1991, enacted October 28, 1991.
These Town regulations apply to all Town employees
who operate commercial motor vehicles and are subject to the commercial
driver's license (CDL) requirements established by the DOT.
The objectives of this chapter shall be:
A.
To establish rules and procedures to deter all illegal
drug use and deter on-duty, preduty and postaccident alcohol use,
as well as on-duty alcohol impairment stemming from preduty use, for
all covered drivers who perform safety-sensitive functions;
B.
To detect and eliminate the possibility that Town-covered
drivers will perform safety-sensitive functions after testing positive
for alcohol or drugs;
C.
To comply with applicable federal and state laws,
including the Omnibus Transportation Employee Testing Act of 1991;
D.
To provide reasonable measures for the early detection
of personnel not fit to perform activities within the scope of these
Town regulations;
E.
To maintain a workplace free of drugs and alcohol;
and
F.
To 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 these
Town regulations. 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.
Preduty testing. Preduty testing is testing for drugs,
independent of the Omnibus Transportation Employee Testing Act of
1991 and the regulations promulgated hereunder testing for alcohol,
that 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 preduty 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 preduty 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
preduty drug testing reveals a presence of drugs, it will result in
the revocation of the conditional offer of employment. The Town may,
in its sole discretion, forego preduty 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 these Town
regulations. (Reasonable-suspicion testing will not be conducted based
upon the suspicion that a covered driver has violated the provision
of these Town regulations 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 these Town regulations 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 these Town regulations have been violated.
(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.
(1)
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.
(2)
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.
Postaccident testing.
(1)
A postaccident 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; or
(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 postaccident alcohol
test more than eight hours following the accident and will not administer
a postaccident drug test more than 32 hours following the accident.
A covered driver who is subject to postaccident 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.
(3)
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 these Town regulations
concerning postaccident testing, provided 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 these Town regulations, 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.
F.
Follow-up testing.
(1)
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 he/she determines that
follow-up testing is no longer necessary.
(2)
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.
See Appendix A.[1]
[1]
Editor's Note: Appendix A is included at the end of this chapter.
A.
Alcohol.
(1)
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.
(2)
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 these Town
regulations. 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 B.[1] For an in-depth explanation of the consequences of positive alcohol test results, see § 14-10).
[1]
Editor's Note: Appendix B is included at the end of this chapter.
B.
Drugs.
(2)
The cutoff levels for these drugs will be those set
forth in the DOT regulations.
(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. In the event that a split-sample test
results in a negative or invalid test or cancellation of the original
test, the Town will reimburse the covered driver 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 B[2]).
[2]
Editor's Note: Appendix B is included at the end of this chapter.
C.
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.
D.
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 Part 40.53(b)
or in the case of a confirmation test).
A covered driver shall not refuse to submit
to a postaccident alcohol or drug test required under these Town regulations,
a random alcohol or drug test required under these Town regulations,
a reasonable-suspicion alcohol or drug test required under these Town
regulations, or a follow-up alcohol or drug test required under these
Town regulations. 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 the substance abuse professional, if any, and
undergoes a return-to-duty alcohol test revealing an alcohol concentration
of less than 0.02 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: New York Vehicle and Traffic Law § 509-6,
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," these Town regulations do 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 postaccident alcohol
test shall not use alcohol for eight hours following the accident
or until he/she undergoes a postaccident 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 these Town regulations 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 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 these Town regulations, 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 of this section;
(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 tests 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
these Town regulations 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 profession determines that such testing is no longer
necessary.
(3)
The evaluation and rehabilitation may be provided
by the Town by a substance abuse professional under contract with
the Town or by a substance abuse professional not affiliated with
the Town. The choice of a substance abuse professional shall be that
of the Town and costs affiliated with evaluation and treatment shall
be the responsibility of the covered driver.
(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 preduty alcohol or drug test or who have a preduty
alcohol test with a result indicating an alcohol concentration of
0.04 or a drug test with a verified positive test result.
A.
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 these Town regulations
or an alcohol or drug rule of any DOT agency.
B.
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.
C.
Covered drivers who violate these Town regulations
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.
D.
Independent of the requirements of the Omnibus Transportation
Employee Testing Act of 1991 and the regulations promulgated thereunder,
covered drivers who have been found to have violated the prohibited
conduct under these Town regulations:
(1)
Will be immediately suspended from their safety-sensitive
function without pay;
(2)
If the violation is for the illegal use of drugs in
violation of these Town regulations, and after a review of all pertinent
facts leading to the suspension, the covered driver shall be terminated;
(3)
If a covered driver refuses to submit to a postaccident
drug test, a reasonable-suspicion drug test, a random drug test or
a follow-up drug test, the covered driver shall be terminated;
(4)
If the covered driver's alcohol concentration, as
measured by an alcohol test, is 0.02 or greater but less than 0.04,
the covered driver shall be advised to seek assistance and/or counseling
from a substance abuse professional. Such an infraction 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, up to and including discharge;
(5)
If the covered driver's alcohol concentration, as
measured by an alcohol test, is 0.04 or greater, the covered driver
shall be advised to seek assistance and/or counseling from a substance
abuse professional. If the covered driver's alcohol concentration,
as measured by an alcohol test, is 0.04 or greater, such an infraction
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, up to and including discharge;
(6)
If the covered driver refuses to submit to a postaccident
alcohol test, a reasonable-suspicion alcohol test, a random alcohol
test or a follow-up alcohol test, the covered driver shall be directed
to seek assistance and/or counseling from a substance abuse professional.
If a covered driver refuses to submit to alcohol testing under these
Town regulations such action shall result in a suspension without
pay pending a review of the employee's work record for a determination
by the Town of the appropriate disciplinary action, up to and including
discharge;
(7)
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 these Town
regulations to each covered driver and to his/her collective bargaining
agent. Each covered driver is required to sign a statement certifying
that he/she 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.
If any provision of these regulations is determined
in a tribunal of competent jurisdiction to be inconsistent with any
superseding legal requirements, that provision shall be considered
modified or deleted so as to comply with the superseding legal requirements
without any effect on the remaining Town regulations provisions.
