[HISTORY: Adopted by the Town Board of the Town of Cortlandville 12-20-1995; effective 1-1-1996. Amendments noted where applicable.]
This policy is based upon the Town and Village - Drug and Alcohol Testing Association (T.V.-D.A.T.A.) practice and policy prohibiting the use of alcohol and drugs on the job, the Federal Drug Free Workplace Act of 1989 and the soon to be in effect Omnibus Transportation Employee Testing Act (OTETA). The OTETA is scheduled to take effect for T.V.-D.A.T.A. members on January 1, 1996, and the members will comply with United State Department of Transportation rules which mandate preemployment, reasonable suspicion, post accident, random follow-up and return-to-duty drug and alcohol testing of employees in various positions requiring the possession of a commercial driver's license and defined as safety sensitive.
Each Town and Village - Drug and Alcohol Testing Association member will assist his employees who have a drug or alcohol dependency to recover from such addiction, provided that the employee seeks and accepts assistance. However, the municipality may take appropriate formal disciplinary action, in accordance with this policy. It is important to emphasize that employees with drug and/or alcohol problems, who wish to avail themselves of rehabilitative services under the health insurance or any other rehabilitation program, should pursue help before they are determined to be in violation of the municipality's drug-free workplace policy.
After January 1, 1996, all drivers with commercial driver's licenses (CDL), performing safety-sensitive functions, operating a vehicle with a gross weight of 26,000 pounds or more on a public highway or a motor vehicle requiring a placard, as defined by the Federal Highway Administration, will be subject to drug and alcohol testing.
Safety-sensitive functions are as follows:
A. 
All time at a carrier facility, or other property, waiting to be dispatched, unless the driver has been relieved from duty by employer.
B. 
All time inspecting equipment or servicing or conditioning any commercial motor vehicle, at any time.
C. 
All time spent at the driving controls of a commercial motor vehicle.
D. 
All time, other than driving time, spent on or in a commercial motor vehicle.
E. 
All time loading or unloading a commercial motor vehicle, supervising or assisting in loading a commercial motor vehicle, attending a vehicle being loaded or unloaded or remaining in readiness to operate a vehicle.
F. 
All time spent performing the driver requirements associated with an accident.
G. 
All time repairing, obtaining assistance or remaining in attendance upon a disabled vehicle.
The following alcohol and controlled-substance-related activities are prohibited by the Federal Highway Administration's drug use and alcohol misuse rules for drivers of commercial motor vehicles:
A. 
Reporting for duty or remaining on duty to perform safety-sensitive functions while having an alcohol concentration of 0.04 or greater .
B. 
Being on duty or operating a commercial vehicle (CMV) while the driver possesses alcohol, unless alcohol is manifested and transported as part of a shipment. This includes the possession of medicines containing alcohol (prescription or over-the-counter), unless the packaging seal is unbroken.
C. 
Using alcohol while performing safety-sensitive functions.
D. 
When required to take a post-accident alcohol test, using alcohol within eight hours following the accident or prior to undergoing a post-accident alcohol test, whichever comes first.
E. 
Refusing to submit to an alcohol or controlled substance test required by post-accident, random, reasonable suspicion or follow-up testing requirements.
F. 
Reporting for duty or remaining on duty, requiring the performance of safety-sensitive functions, when the driver uses any controlled substance. Except when instructed by a physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a CMV.
G. 
Reporting for duty, remaining on duty or performing a safety-sensitive function, if the driver tests positive for controlled substances.
A. 
In order to enhance highway transportation safety, Congress passed the Omnibus Transportation Employee Testing Act of 1991. The Act required the Federal Highway Administration to establish regulations requiring drivers of commercial vehicles to be tested for use of controlled substances and the misuse of alcohol. The following are the types of tests required to be performed:
(1) 
Pre-employment testing.
(2) 
Post-accident testing.
(3) 
Random testing.
(4) 
Reasonable suspicion testing.
(5) 
Return-to-duty testing.
(6) 
Follow-up testing.
B. 
Split-sample testing. Controlled substances tests conducted on or after August 15, 1994, must follow split sample procedures. Under this provision, a driver whose urine has tested positive for a controlled substance has the option (within 72 hours of being notified by the MRO) of having the other portion of the split sample tested at another laboratory. If the second portion of the sample also tests positive, then the driver is subject to sanctions contained in the regulations. If the second portion produces a negative result, or for any reason the second portion is not available, the test is considered negative and no sanctions are imposed.
A. 
Prior to the first time a driver performs safety-sensitive functions (any of those on-duty functions listed in the Federal Motor Carrier Safety Regulations) for an employer, the driver must submit to testing for controlled substances.
B. 
No employer shall allow a driver to perform a safety-sensitive function until the employee has received a controlled substance test result from the medical review officer (MRO) indicating a verified negative result.
A. 
An employer must require a driver to submit to an alcohol or controlled substance test when the employer has reasonable suspicion to believe the driver has violated the alcohol or controlled substances prohibitions. "Reasonable suspicion" is the belief that the driver has violated the alcohol and controlled substances prohibitions, based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.
B. 
Supervisor training. The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with the following requirements:
(1) 
Employers must ensure that persons designated to determine whether reasonable suspicion exists to require a driver to undergo alcohol or controlled substances testing receive at least 60 minutes of training on alcohol misuse and at least 60 minutes of training on controlled substances use.
(2) 
The training shall cover the physical, behavioral, speech and performance indicators of probable alcohol misuse and the use of controlled substances.
(3) 
The training shall be a total of 120 minutes.
C. 
Alcohol testing.
(1) 
Alcohol testing is authorized only if the observations are made during, just before or just after the period of the work day the driver is required to be in compliance.
(2) 
If a reasonable suspicion alcohol test is not administered within two hours following observation, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not administered promptly. In addition, if not administered within eight hours, the employer shall cease attempts to administer the test, and shall prepare and maintain the record listed above.
D. 
Only one supervisor is required to make the observations necessary to require the controlled substance or alcohol test. The Federal Highway Administration believes that requiring only one supervisor to make a reasonable suspicion determination responds to the operational realties. The supervisor who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test, in order to preserve protection for the drivers.
E. 
Records. A written record shall be made of observations leading to an alcohol and/or controlled substances test and shall be signed by the supervisor who made the observations.
Note: The mere possession of alcohol does not constitute a need for reasonable suspicion testing, which must be based on observations concerning the driver's appearance, behavior, speech or body odor.
A. 
As soon as practicable following an accident involving a commercial motor vehicle, each employer shall test each surviving driver for alcohol and controlled substances when either:
(1) 
The accident involved a fatality; or
(2) 
The driver receives a citation under state or local law for a moving traffic violation arising from the accident.
B. 
For the purpose of this rule, an "accident" is defined as an incident involving a commercial motor vehicle in which there is either a fatality, an injury treated away from the scene or a vehicle is required to be towed from the scene.
C. 
Driver's responsibility. A driver who is subject to post-accident testing must remain available, or the employer may consider the driver to have refused to submit to testing. The driver subject to post-accident testing must refrain from using alcohol for eight hours following the accident or until he/she submits to an alcohol test, whichever comes first.
Random alcohol testing shall be conducted in accordance with the following requirements:
A. 
Random alcohol testing shall be administered at a minimum annual rate of 25% of the average number of driver positions.
B. 
The employer shall ensure that random alcohol tests are unannounced and spread reasonably throughout the calendar year.
C. 
The employer shall ensure that drivers selected for random alcohol tests proceed immediately to the testing site upon notification of being selected.
D. 
A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, immediately prior to performing or immediately after performing safety-sensitive functions.
E. 
Employers may pool interstate and intrastate drivers together for random alcohol testing.
F. 
If an employer is required to conduct random alcohol testing under the rules of more than one DOT agency, the employer may either:
(1) 
Establish separate pools for random selection, with each pool containing the DOT covered employees who are subject to testing at the same required minimum annual percentage rate; or
(2) 
Randomly select such employees for testing at the highest minimum annual percentage rate established for the calendar year by any DOT agency to which the employer is subject.
G. 
In the event that a driver who is selected for a random alcohol test is on vacation or an extended medical absence, the employer can either select another driver for testing or keep the original selection confidential until the driver returns.
Random controlled substances testing shall be conducted in accordance with the following requirements:
A. 
Employer must use a scientifically valid method, such as a random number table which is matched with the driver's social security number.
B. 
Random controlled substances testing shall be administered at a minimum annual rate of 50% of the average number of driver positions.
C. 
The employer shall ensure that random controlled substances tests are unannounced and spread reasonably throughout the calendar year.
D. 
The employer shall ensure that drivers selected for random controlled substances tests proceed immediately to the testing site upon notification of being selected.
A. 
Refusal to submit to an alcohol or controlled substances test shall be when a driver:
(1) 
Fails to provide adequate breath for testing without a valid medical explanation after he or she has received notice of the requirement for breath testing; or
(2) 
Fails to provide adequate urine for controlled substances testing without a valid medical explanation after he or she has received notice of the requirement for urine testing; or
(3) 
Engages in conduct that clearly obstructs the testing process.
B. 
The town or village will have no obligation to an employee who refuses to take either a controlled substances test or alcohol test. The driver's employment with the town or village shall be terminated.
A. 
The town or village shall ensure that before a driver returns to duty requiring the performance of a safety-sensitive function after engaging in prohibited conduct regarding alcohol misuse, the driver shall undergo a return-to-duty alcohol test indicating a breath alcohol concentration of less than 0.02.
B. 
The town or village shall also ensure that before a driver returns to duty requiring the performance of a safety-sensitive function after engaging in prohibited conduct regarding controlled substances use, the driver shall undergo a return-to-duty controlled substances test with a result indicating a verified negative result for controlled substances use.
C. 
In the event that a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed.
A. 
Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, the town or village shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional.
B. 
The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months, but testing shall not exceed 60 months.
A. 
Persons with a CDL license and who are immediately available to perform a safety-sensitive function will be subject to an evidential breath test (EBT).
B. 
Preparation for breath alcohol testing.
(1) 
A supervisor will instruct you to report to a specified location for a breathlizer test. At this location, the employee will meet a breath alcohol technician (BAT), who will be doing the testing and who will show the employee to a room where the test will be conducted. This room will afford the employee visual and aural privacy. The BAT will explain how the test is conducted, ask the employee to provide some positive identification, and, upon the employee's request, the BAT shall supply his/her positive identification.
(2) 
The BAT shall complete Step 1 on the Breath Alcohol Testing Form. The employee shall then complete Step 2 on the form, signing the certification. Refusal by the employee to sign this certification shall be regarded as a refusal to take the test.
(3) 
An individually sealed mouthpiece shall be opened in the presence of the employee and placed on the EBT. The employee shall be instructed to blow into the mouthpiece until the EBT indicates an adequate amount of breath has been obtained.
(4) 
The employee shall be shown the results on the recorder of the EST. The results alone with blank air samples will be printed in triplicate, one copy for the employee. If the results of this test is 0.019 or less, no further testing is to be done. However, if the result is 0.02 or greater, the BAT must conduct a confirmation test.
C. 
Procedure for confirmation test.
(1) 
The BAT shall instruct the employee not to eat, drink, put any substance in his or her mouth and, to the extent possible, not to eruct (belch) during the waiting period before the confirmation test. This time period begins with the completion of the screening test and shall not be less than 15 minutes. This confirmation test shall be conducted within 30 minutes of the completion of the screening test. The BAT shall explain to the employee the reason for this procedure (to prevent any accumulation of mouth alcohol), and the fact that it is for the employee's benefit.
(2) 
The confirmation test is much the same as the screening test. This is the final test. If an employee shows a 0.02 or greater, the BAT will notify the supervisor in a confidential manner of the results. All test results will be kept confidential.
Persons with a CDL license and who are immediately available to perform a safety-sensitive function (as noted in § 15-4 of this policy) will be subject to drug testing.
A. 
Drugs tested for; employee testing procedure.
(1) 
DOT agency drug testing programs require that employees be tested for marijuana, cocaine, opiates, amphetamines and phencydidine.
(2) 
The employee will be notified by the supervisor and he/she will be instructed to go to a specified location for a drug test.
(3) 
Once at the collection site, the employee will be given a sealed specimen bottle or a sealed collection container and provided a room that will afford the employee visual and aural privacy for him/her to provide a urine sample for drug testing.
(4) 
Once a sample is collected, the employee is to return the sample to the collector immediately. The sample will be checked for temperature and it will be recorded on the official form. The specimen will be split into Bottle A and bottle B. The official form and two specimen bottles will be sent to a laboratory for testing of the five drugs listed in Subsection A(1) of this section.
B. 
Laboratory procedure; review of test results; notice to employee.
(1) 
The laboratory shall report as negative all specimens that are negative on the initial test. Only specimens confirmed positive shall be reported positive for a specific drug.
(2) 
The laboratory has five working days after receipt of the specimen to report the results of the tests to the Medical Review Officer.
(3) 
The Medical Review Officer shall review confirmed positive results, making sure all steps have been taken to assure an accurate test.
(4) 
Prior to making a final decision to verify a positive test result for an employee, the Medical Review Officer shall contact the employee directly, on a confidential basis, to determine if he/she wishes to discuss the test results. A medically licensed or certified staff person under the Medical Review Officer's supervision may gather information from the employee. The Medical Review Officer shall talk directly with the employee before verifying a test as positive.
(5) 
If, after making all reasonable efforts and documenting them, the Medical Review Officer is unable to reach the employee directly, he/she shall contact a designated management official who shall direct the employee to contact the Medical Review Officer as soon as possible. The management official shall employ a procedure that ensures that this notice is held in confidence.
C. 
Verification of test without employee knowledge. The Medical Review Officer may verify a test as positive without having communicated directly with the employee about the test in two circumstances:
(1) 
The employee expressly declines the opportunity to discuss the test.
(2) 
The designated employer representative has successfully made and documented a contact with the employee and instructed the employee to contact the Medical Review Officer and more than five days have passed since the date the employee was successfully contacted.
D. 
Employee procedure upon positive verification.
(1) 
If a test is verified positive under the circumstances specified in Subsection C(1) or (2) of this section, the employee may present, to the Medical Review Officer, information documenting that serious illness, injury, or other circumstances unavoidably prevented the employee from timely contacting the Medical Review Officer. The Medical Review Officer, on the basis of such information, may reopen the verification, allowing the employee to present information concerning a legitimate explanation for the confirmed positive test. If the Medical Review Officer concludes that there is a legitimate explanation, the Medical Review Officer declares the test to be negative.
(2) 
If a test is verified positive by the Medical Review Officer, the employee has 72 hours after the Medical Review Officer successfully made and documented a contact with the employee, to ask that Specimen B or a split specimen be tested. The Medical Review Officer shall direct, in writing, the laboratory to provide the split specimen to another DHHS certified laboratory for analysis. If the analysis fails to reaffirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen, or if the split specimen is unavailable, inadequate for testing or untestable, the Medical Review Officer shall cancel the test and report cancellation and the reasons for it to the DOT, the employer and the employee.
E. 
If a test is verified positive under the circumstances specified in Subsection D(1) or (2) of this section, the employee will be notified by the Medical Review Officer, who shall refer the case to the management official empowered to recommend the town's or village's evaluation and disciplinary penalties. (Refer to § 15-17 of this chapter.)
F. 
All drug and alcohol testing shall be done on town or village time. All town or village employees will be transported by the municipality to and from the test site. Each municipality shall also transport employees who have 0.02 or greater level of alcohol to their place of residence.
A. 
A driver testing positive for drugs or alcohol will be suspended and the case will be reviewed for discharge by the Highway Superintendent and Town or Village Board jointly. However, after review, it may be decided that the employee be given the chance to come back to work after rehabilitation. This employee will need an evaluation by a substance abuse professional who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse or controlled substance use.
B. 
A driver who has followed all rehabilative programs prescribed by the substance abuse professional but after 30 days is not released by the town or village substance abuse professional to do safety-sensitive functions may be considered by his employer to do other tasks until released by the substance abuse professional.
C. 
Before a driver's return to duty doing a safety-sensitive function after a verified positive test for drugs or an alcohol level of 0.04 or greater, the 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 controlled substance test with a verified negative result, if the conduct involved a controlled substance. In addition, each driver identified as needing assistance in resolving problems associated with alcohol misuse or controlled substance use shall be evaluated by a substance abuse professional to determine that the driver has properly followed all rehabilitation programs prescribed by the evaluator.
D. 
A driver shall be subject to unannounced follow-up alcohol and controlled substances tests administered by the employer, following the driver's return to duty. The number and frequency of such follow-up testing shall be as directed by the substance abuse professional and consist of at least six tests in the first 12 months after the return to duty. If the substance abuse professional determines that return-to-duty and follow-up testing for both alcohol and controlled substance is necessary for that particular driver, the substance abuse professional may require testing for up to 60 months.
E. 
All evaluations shall be done for town and villages by a substance abuse professional under contract with the T.V.-D.A.T.A. rehabilitation and follow-up testing shall be paid for by the employee.
F. 
A driver who is tested for alcohol and found to have a concentration of 0.02 but less than 0.04 shall be released from his duty for 24 hours without pay.