[Adopted 12-11-1995 by L.L. No. 5-1995]
A.
The United States Department of Transportation (DOT)
has issued regulations pursuant to the Omnibus Transportation Employee
Testing Act of 1991 (the Act) which govern the use of drugs and alcohol
by commercial motor vehicle drivers and which also require the Village
to conduct mandatory drug and alcohol testing of covered drivers.
The regulations require testing to begin on January 1, 1996. It is
the Village's intention to comply fully with the law and with DOT's
regulations governing drug and alcohol use and testing. In the event
that DOT's regulations are amended, the Village reserves the right
to apply the amended requirements immediately.
B.
Furthermore, if there are any provisions of the Village
of Bayville's Drug and Alcohol Testing Policy which are inconsistent
with the Federal Omnibus Transportation Employee Testing Act of 1991,
the federal law supersedes Bayville's policy.
C.
Before performing an alcohol or controlled substance
test, the Village shall notify a driver that the alcohol or controlled
substance test is required by federal regulations under 49 CFR Part
382.
[Added 8-10-1998]
A.
The Village Clerk-Treasurer or a designee:
(1)
Shall adopt any work rules necessary to implement
this policy and comply with the Act and DOT regulations.
(2)
Shall also develop drug and alcohol testing educational
material that complies with federal regulations for distribution to
covered employees.
(3)
Shall provide written notice to the union of any change
in this policy. Nothing herein shall be construed as a waiver by the
union to negotiate with respect to any changes to this policy or with
respect to any work rules and procedures adopted hereunder under those
circumstances in which such negotiation is required by of Civil Service
Law § 209a, Subdivision 1.
[Amended 8-10-1998]
(4)
Shall arrange for training of all supervisors to allow
them to determine whether reasonable suspicion exists to test an employee
for alcohol misuse or illegal drugs.
(5)
Shall provide for an informal appeal process whereby
an employee may appeal a positive test.
B.
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.
A.
Drug and alcohol testing will be conducted on any
current and/or prospective driver who may be required to operate a
commercial motor vehicle, as defined by the DOT.
B.
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, 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.
As used in this chapter, the following terms
shall have the meanings indicated:
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,
if the accident involved:
[Amended 8-10-1998]
Bodily injury to any person who, as a result
of the injury, immediately receives treatment away from the scene
of the accident; or
One or more motor vehicles incurring disabling
damage as a result of the accident, requiring the motor vehicle to
be transported away from the scene by a tow truck or other motor vehicle.
The intoxicating agent in beverage alcohol, ethyl alcohol
or other low molecular weight alcohol, 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 used to
transport passengers or property that:
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 "confirmation
test" means a second analytical procedure to identify the presence
of a specific drug or metabolite which is independent of the initial
test and which uses a different technique and chemical principle from
that of the screen test in order to ensure reliability and accuracy.
[Amended 8-10-1998]
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.
Includes the performance of safety-sensitive functions by
a driver as stated below:
[Amended 8-10-1998]
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 Village Clerk-Treasurer.
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.
All time repairing, obtaining assistance or
remaining in attendance upon a disabled vehicle.
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.
A driver:
Fails 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;
Fails 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
Engages in conduct that clearly obstructs the
testing process.
In alcohol testing, an analytical procedure to determine
whether a driver may have a prohibited concentration of alcohol in
his or her system. In urine testing, it means a screening to eliminate
"negative" urine specimens from further consideration.
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.
The Village is required to conduct a drug and alcohol
test:
(1)
Preemployment and preduty (drug tests only).
(2)
Following certain accidents.
(3)
On a random basis.
(4)
Upon a reasonable suspicion.
(5)
Upon a return to duty after engaging in conduct that
is illegal under the Act or under regulations issued pursuant to it.
(6)
Periodic follow-up testing for individuals engaging
in conduct that is illegal under the Act or under regulations issued
pursuant to it.
B.
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.
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:
A.
Procedures to ensure the correct identity of each
driver at the time of testing.
B.
A chain of custody procedure to protect a driver's
urine specimen.
C.
The use of "split" urine samples to allow for a verification
of an initial positive test.
D.
The use of a trained breath alcohol technician (BAT)
and DOT-approved testing devices for conducting alcohol tests.
E.
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.
F.
The confirmation of an initial positive urine test
by a second test.
G.
The confirmation of an initial positive breath test
by second test.
H.
The Village's appointment of a qualified MRO to review
urine test results.
A.
For alcohol tests.
(1)
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.
(2)
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, subject to the labor agreement.
[Amended 8-10-1998]
(3)
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, subject to the labor agreement.
[Amended 8-10-1998]
B.
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. Pending the outcome of the second test, the driver will
be prohibited from driving.
[Amended 8-10-1998]
A.
A driver for the Village shall not:
(1)
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;
(2)
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;
(3)
Use alcohol at any time while performing any driving
function;
(4)
Use alcohol within four hours prior to performing
any driving function;
(5)
Use alcohol for eight hours following an accident
or until the driver undergoes a post-accident alcohol test, whichever
occurs first;
(6)
Refuse to submit to an alcohol or urine test;
(7)
Consume alcohol when notified of or informed of being
on call;
(8)
Fail to inform the Village Clerk-Treasurer of therapeutic
drug use;
(9)
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; or
B.
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. 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 will be disciplined pursuant
to the labor agreement with the penalty to be termination from service.
[Amended 8-10-1998]
A.
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.
B.
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.
C.
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, counseling and treatment programs and health insurance coverage.
[Amended 8-10-1998]
[Amended 8-10-1998]
A.
Upon testing positive, a driver may file an appeal
with the Village Clerk-Treasurer 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 Village Clerk-Treasurer shall offer the employee an opportunity
to be heard. The employee shall be entitled to union representation.
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 regulations shall not be deemed to be discipline.
B.
The Village Clerk-Treasurer shall provide the employee
and any representative who may appear on his behalf with a written
decision. In deciding an appeal from a positive breath or urine test
result, the Village Clerk-Treasurer shall take into account the original
test result and retesting done by the employee at the employer's expense
and any other permanent information that the employee or Village may
provide. In deciding an appeal from a positive controlled substance
test result, the Village Clerk-Treasurer shall also take into account
the test results pertaining to the split sample. (If the split sample
fails to reconfirm the presence of the drug(s) or drug metabolite
found in the primary specimen, then the test shall be canceled and
the MRO shall report the cancellation and the reasons for it to the
DOT, the employer and the employee.) The union may appeal the decision
of the Village Clerk-Treasurer by filing a Step-2 grievance.
[Amended 8-10-1998]
Employees who have taken and are awaiting the
results of a drug test must advise the testing agent and the Village
Clerk-Treasurer of how they can be reached at home and at work. An
employee who refuses to do so or fails to contact the Village will
be considered insubordinate and subject to disciplinary action, up
to and including discharge, in accordance with the negotiated labor
agreement. The failure to provide the contact information could result
in the MRO's being unable to discuss a test with an employee prior
to MRO's verification of the test as a positive test.
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.
