[Adopted 4-14-1997 by Ord. No. 6-1997]
As used in this article, the following terms shall have the following meanings, unless the context clearly indicates that a different meaning is intended:
ALCOHOL
The intoxicating agent in beverage alcohol, ethyl alcohol or other low-molecular-weight alcohols, including methyl and isopropyl alcohol.
ALCOHOL CONCENTRATION (OR CONTENT)
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.
ALCOHOL USE
The consumption of any beverage, mixture or preparation, including medication, containing alcohol.
CITY
The City of East Orange.
CITY DESIGNATED REPRESENTATIVE (CDR)
The primary contact person designated by the City to receive all information and/or reports from the Medical Review Officer, the Breath Alcohol Technician, the Substance Abuse Professional and the laboratories. The CDR is also the designated contact person for inquiries regarding this article.
CONTROLLED SUBSTANCE
Any of those substances listed under the New Jersey Controlled Dangerous Substances Act (N.J.S.A. 24:21-1 et seq.).
COVERED EMPLOYEE
All City of East Orange employees.
DRUGS
A. 
Any substance recognized as a drug in the official United States pharmacopoeia and national formulary or official homeopathic pharmacopoeia of the United States or any supplement to either of them;
B. 
Any substance intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease or other conditions in persons or other animals;
C. 
Any substance other than a device or food intended to affect the structure or any function of the body of persons or other animals; or
D. 
Any substance intended for use as a component of any article specified in Subsection A, B or C, but does not include gases or devices or articles intended for use or consumption in or for mechanical, industrial, manufacturing or scientific applications or purposes.
DRUGS/CONTROLLED SUBSTANCES TEST
A method for determining the presence of drugs/controlled substances in a urine sample or blood sampling using a scientifically reliable method.
FOLLOW-UP TEST
An alcohol and/or drugs/controlled substances test administered to a covered employee who has violated the prohibitions of this article and who has been permitted to return to duty after passing a return-to-duty alcohol and/or drugs/controlled substances test.
ILLEGAL DRUGS
Drugs for which the possession, use, sale or distribution is unlawful pursuant to the laws of the State of New Jersey or any federal law or regulation. Illegal drugs, for the purpose of this article, include drugs which are not legally obtainable and drugs which are legally obtainable but have been obtained illegally.
INTOXICATING SUBSTANCE
Any substance which produces changes in one's physical, mental or emotional state or behavior, including but not limited to glue, paint thinner, etc.
POSSESSION
Having controlled substances which are not obtained either directly from a doctor or pharmacist using a valid prescription, or having controlled substances the possession or use of which is unlawful pursuant to the laws of the State of New Jersey or any federal law or regulation.
REASONABLE SUSPICION TEST
An alcohol and/or drugs/controlled substances test administered to a covered employee as a result of a trained supervisor's or trained City official's reasonable belief that the covered employee has violated the drug, alcohol or controlled substances prohibitions of this article. A reasonable suspicion determination must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the covered employee. The observations may include indications of the chronic and/or withdrawal effects of drugs/controlled substances or alcohol and any of the following:
A. 
Documentation of unsatisfactory work performance or on-the-job behavior.
B. 
Evidence of the manufacture, distribution, dispensing, possession or use of drugs/controlled substances, alcohol or other prohibited substances.
C. 
Occurrence of a serious or potentially serious accident that may have been caused by human error.
D. 
Fights (physical contact), assaults and flagrant disregard or violations of established safety, security or other work rules.
REFUSAL TO SUBMIT (TO A DRUG, ALCOHOL OR CONTROLLED SUBSTANCES TEST)
A. 
A covered employee fails to provide an adequate amount of breath during testing without a valid medical explanation after he or she has received notice of the requirement for breath testing.
B. 
A covered employee fails to provide adequate urine for drugs/controlled substances testing without a valid medical explanation after he or she has received notice of the requirement for urine testing.
C. 
A covered employee engages in conduct that obstructs or interferes with the testing process.
D. 
A covered employee fails to be readily available for post-accident testing.
E. 
A covered employee fails to report to and undergo alcohol and drugs/controlled substances testing at a collection site as required.
REPORTABLE INCIDENT
Any personal injury or property damage involving a City employee that occurs on or off City-owned property during assigned work hours or any time an employee is using a City-owned vehicle or wearing a City uniform.
RETURN-TO-DUTY TEST
An alcohol and/or drugs/controlled substances test administered prior to a covered employee being permitted to return to duty, when the covered employee has violated this article.
SCREENING TEST (ALSO KNOWN AS "AN INITIAL TEST")
A. 
In alcohol testing, a screening test means an analytical procedure to determine whether a covered employee may have a prohibited concentration of alcohol in his or her system.
B. 
In drugs/controlled substances testing, a screening test means an immunoassay screen (or other DHHS-approved test) to eliminate negative urine specimens from further consideration.
SUPERVISOR
A management or supervisory employee of the City of East Orange.
TRAINED SUPERVISOR or TRAINED CITY OFFICIAL
Any City supervisor or any City management employee who has received the requisite training in identifying the signs and symptoms of alcohol abuse and/or drugs/controlled substances abuse.
UNDER THE INFLUENCE OF ALCOHOL
As a result of the consumption of alcohol, an employee's (or applicant's) ability to perform his or her job is impaired to an appreciable degree. For the purposes of this definition, a blood alcohol level of 0.10% alcohol in the blood by weight shall be considered to be sufficient to establish said condition. An employee with a blood alcohol level of less than 0.10% alcohol in the blood by weight may also be considered to be under the influence of alcohol if job performance is impaired to any appreciable degree.
UNDER THE INFLUENCE OF DRUGS OR OTHER INTOXICATING SUBSTANCES
As a result of the consumption, inhalation or injection or any combination of alcohol, drug or any other intoxicating substance or any combination of substances, an employee's job performance is impaired to any appreciable degree.
To implement this article, the following rules are established as conditions of employment with the City:
A. 
The City will not hire any applicant who tests positive on a detection test for illegal drugs or alcohol. Those individuals will be prohibited from employment with the City for one year, unless they provide certified documentation of successful completion of a substance abuse rehabilitation program. Applicants who have completed a rehabilitation program will be subject to drug screening prior to being employed.
B. 
Any City employee who is involved in a reportable incident (see definitions) that results in injury to persons or property shall be subject to an investigation. Employees will be directed to undergo a drug or alcohol detection test to aid in determining fitness for duty if there is reasonable suspicion that the employee was under the influence of drugs or alcohol at the time of the incident.
C. 
An employee who refuses to participate in a required drug or alcohol detection test will be subject to disciplinary action, up to and including termination.
D. 
Based on the results of the investigation and drug or alcohol detection testing, the employee may be subject to mandatory participation in a rehabilitation program through the Employee Assistance Program and disciplinary action in accordance with departmental or City guidelines and established practices for various infractions.
E. 
An employee's fitness to continue in his or her current position while enrolled in any such rehabilitation program will be determined on a case-by-case basis. Employees who have completed a rehabilitation program will be subject to random drug screening for the next year and will sign a waiver consenting to the same.
F. 
Any City employee at any level who reports for work on City-owned property or work sites will be directed to undergo a drug or alcohol detection test to aid in determining fitness for duty if there is reasonable suspicion that the employee is under the influence of drugs or alcohol. An employee who refuses to participate in such testing will be subject to disciplinary action, up to and including termination of employment.
G. 
All illegal drugs (see definitions) discovered during an investigation will be given to the appropriate law enforcement agency and may result in criminal prosecution. Drug or alcohol test results will be used for administrative purposes only and will be kept confidential, unless subpoenaed because of legal action.
H. 
The use, sale, possession or distribution of a narcotic, an intoxicating substance or any illegal drug or alcohol while at work will subject an employee to disciplinary action, up to and including termination.
I. 
Supervisors shall take appropriate action to protect City personnel and City property by removing from the work premises or site any individual not in condition to perform assigned work in a normal and safe manner. An employee who appears to be under the influence of drugs or alcohol shall be taken to an authorized facility for drug and alcohol testing. Employees shall not be allowed to drive any vehicle, if it appears that they are under the influence of drugs or alcohol.
J. 
If any employee has reasonable suspicion that a supervisor is under the influence of drugs or alcohol, his or her observations shall be reported to the supervisor's immediate superior. If the employee feels that reporting these observations in this manner would adversely affect his or her working conditions, the report may be made to the Personnel Department.
The use of a legally controlled substance as part of a prescribed medical treatment by a licensed physician will not subject an employee to disciplinary action or denial of employment if that treatment does not adversely affect job performance. Prescribed use may be substantiated by a physician's report or statement. If the use of prescribed drugs adversely affects an employee's job performance or is detrimental to the public trust or safety of other employees or citizens, it is in the best interest of the employee and the City for the employee to be placed on a leave of absence without pay. Leaves of absence will be used in accordance with current policies.
In keeping with the City's goal to establish and maintain a work environment free from the effects of drugs and intoxicating substances and to ensure the safety of citizens, the workplace and the work force, the following procedures are established:
A. 
For all positions, applicants who have received an offer of employment may be required to complete a drug and alcohol detection test in addition to successful completion of any other physical examination requirements. A positive finding of alcohol or illegal drugs will result in denial of employment with the City.
B. 
Applicants for positions who do not submit to screening at the appointed time will be denied employment.
C. 
Department heads, with input from the immediate supervisor, shall initiate drug or alcohol screening of employees involved in reportable incidents (see definitions) that result in injury to person or property, if there is reasonable suspicion of substance abuse.
D. 
Drug or alcohol testing of employees may be initiated by department heads, when there is a reasonable suspicion that substance abuse is occurring. The City Administrator shall be consulted, if possible, before ordering a test.
E. 
Drug or alcohol screening of applicants or employees will include a urinalysis and may also include a breath analysis and blood sample testing. The consent form to be used for each such test is attached as Exhibit B,[1] and by this reference made a part hereof. Any positive readings following urine testing will be confirmed by an alternate testing method before any management action is taken. All positive urine or blood samples will be retained by the laboratory for one year or longer if an appeal or court action is in process.
[1]
Editor's Note: Exhibit B is on file in the office of the City Clerk.
A. 
Alcohol.
(1) 
Covered employees are prohibited from reporting for duty or remaining on duty when their ability to perform assigned functions is adversely affected by alcohol or when their blood alcohol concentration is 0.04 or greater. Covered employees are prohibited from possessing or using alcohol while on duty. Covered employees are prohibited from having used alcohol within four hours of reporting for duty. Employees are cautioned that refraining from alcohol for four hours before reporting for duty may not result in a negative test. Alcohol levels are affected by the amount of alcohol consumed, physical characteristics of the employee and the employee's rate of metabolizing alcohol which has been consumed. Covered employees are prohibited from using alcohol during the hours that they are on call. (Note: Covered employees are cautioned that prescription drugs and over-the-counter medications which contain alcohol may result in the employee having a positive test.)
(2) 
A covered employee is prohibited from being on duty or operating a City motor vehicle while the employee possesses alcohol unless the alcohol is being transported on City business.
(3) 
A covered employee required to take a post-accident alcohol test is prohibited from using alcohol for eight hours following the accident or until he/she undergoes a post-accident test, whichever occurs first.
(4) 
A covered employee is prohibited from refusing to submit to a post-accident, reasonable suspicion, return-to-duty or follow-up alcohol test. A driver is prohibited from refusing to submit to a preemployment, post-accident, random, reasonable suspicion, return-to-duty or follow-up alcohol test.
B. 
Controlled substance.
(1) 
A covered employee is prohibited from reporting for duty or remaining on duty when the covered employee uses any drugs/controlled substances, except when the use is pursuant to the instructions of a physician who has advised the employee that the substance does not adversely affect his or her ability to safely perform his or her duties.
C. 
Other prohibitions and requirements.
(1) 
A covered employee is prohibited from failing to provide access to City-owned vehicles, tool boxes, lockers, desks or other City-supplied equipment after a determination of reasonable suspicion that the covered employee is in violation of these provisions.
(2) 
A covered employee is prohibited from obstructing or interfering with the administration of any drug or alcohol testing.
(3) 
A covered employee shall not engage in any other conduct prohibited by this article.
(4) 
City work rules not specifically cited in this article remain in full force and effect.
(5) 
Before performing work-related duties, covered employees must notify their supervisor if they are taking any legally prescribed medication or therapeutic drug or any nonprescription drug which contains any amount of alcohol or which carries a warning label that indicates the employee's mental functioning, motor skills or judgment may be adversely affected by the use of this medication. A written report of this notification is to be filed by the supervisor with the Personnel Department. It is the responsibility of the employee to accurately inform his/her physician in order that the physician may determine if the prescribed substance could interfere with the safe and effective performance of the employee's duties or operation of City equipment. However, any employee who uses or possesses medication containing alcohol while on duty or who tests positive for alcohol will be removed from his/her position and subject to provisions of this policy, even though the reason for the positive alcohol test is the fact that the employee's prescription medication contains alcohol. A legally prescribed drug is one where the employee has a prescription or other written approval from a physician for the use of the drug in the course of medical treatment. The prescription or container label must include the patient's name, the name of the substance and the quantity/amount to be taken. The misuse or abuse of legal drugs while performing City business is prohibited by this article. (Note: In many instances physicians may be able to prescribe nonalcohol alternatives.)
(6) 
The unlawful manufacture, distribution, dispensing, possession or use of a drug, controlled substance, alcohol or drug paraphernalia is strictly prohibited for all covered employees in the workplace.
Before performing any drug, alcohol or controlled substances test under this article, employees other than drivers being tested shall be notified that the alcohol and/or drugs/controlled substances test is required by this article.
A. 
A covered employee shall promptly submit to an alcohol and/or drugs/controlled substances test whenever a trained supervisor or trained City official has a reasonable suspicion to believe that the covered employee has violated the drug, alcohol or controlled substances prohibitions of this policy.
B. 
The observations required by the subsection above must be made during, just preceding or just after the period of the workday that the covered employee is required to be in compliance with this policy.
C. 
After determination of reasonable suspicion, the alcohol test shall be administered within two hours unless the supervisor or City official prepares and maintains on file a record stating the reasons the test was not administered within that time. The test may be conducted up to eight hours after the reasonable suspicion determination is made. If the test is not administered within eight hours after the determination, attempts to administer the test shall stop, and the supervisor or City official shall record and maintain on file the reasons why the test was not conducted.
D. 
No covered employee shall be subject to reasonable suspicion drug testing later than 24 hours following the determination that reasonable suspicion exists to require the covered employee to undergo such test. If the test is not administered within 24 hours after the reasonable suspicion determination, attempts to administer the test shall stop, and the supervisor or City official shall record and maintain on file the reasons why the test was not conducted.
E. 
A trained supervisor or trained City official who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the covered employee.
F. 
A written record shall be made of the observations leading to a drugs/controlled substances reasonable suspicion test and shall be signed by the trained supervisor or trained City official who made the observations within 32 hours of the observed behavior or before the results of the drugs/controlled substances test are released, whichever is earlier.
G. 
A written record shall be made of the observations leading to an alcohol reasonable suspicion test and shall be signed by the trained supervisor or trained City official who made the observations within 24 hours of the observed behavior.
H. 
Nothing herein shall prohibit a supervisor or a City official from determining that a covered employee is unfit for duty. Nothing in this subsection shall be used to circumvent the requirements stated in this § 60-86.
A. 
A surviving covered employee shall be subject to post-accident alcohol and drugs/controlled substances testing as soon as practicable following the accident.
B. 
A covered employee subject to post-accident testing shall be subject to a breath alcohol test not later than eight hours following the accident and to a drugs/controlled substances test no later than 32 hours following the accident.
C. 
If an alcohol test is not administered within two hours following the accident, the trained supervisor or trained City official shall prepare and maintain on file a record stating the reasons the test was not administered. If an alcohol test is not administered within eight hours following the accident, the trained supervisor or trained City official shall cease attempts to administer an alcohol test and shall prepare and maintain the same record. If a drugs/controlled substances test is not administered within 32 hours following the accident, the trained supervisor or City official shall cease attempts to administer a drugs/controlled substances test and prepare and maintain on file a record stating the reasons the test was not promptly administered.
D. 
A covered employee who is subject to post-accident testing shall remain readily available for such testing or shall be deemed to have refused to submit to testing. Nothing herein shall be construed to require the delay of necessary medical attention or to prohibit the covered employee from leaving the scene of the accident for the period of time necessary to obtain assistance in responding to the accident, obtain necessary medical treatment for injured people or to obtain materials necessary to secure the accident site.
A. 
A covered employee who has undergone an alcohol test with a result of 0.04 or greater or who has a confirmed positive test for drugs/controlled substances shall, at the sole discretion of the City, be permitted to return to work subject to the following and the follow-up testing provisions in § 60-89 below.
B. 
If an employee other than a driver has violated the alcohol prohibitions above, he or she shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.04 before returning to duty. The covered employee shall first have been evaluated by a substance abuse professional who shall determine what assistance, if any, the covered employee needs in resolving problems associated with alcohol misuse and drugs/controlled substances use.
C. 
Following a determination by a substance abuse professional that the covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs/controlled substances, the covered employee shall comply with all initial requirements prescribed by the SAP and shall remain in compliance with any and all prescribed and recommended rehabilitation and/or treatment programs.
D. 
If the covered employee has violated the drugs/controlled substances prohibitions, he or she shall undergo a return-to-duty drugs/controlled substances test with a result indicating a verified negative result for drugs/controlled substances use before returning to duty.
E. 
The covered employee shall be subject to such return-to-duty testing for both alcohol misuse and use of drugs/controlled substances if the substance abuse professional recommends testing for both alcohol and drugs/controlled substances.
A covered employee who has undergone an alcohol test with a result of 0.04 or greater or who has tested confirmed positive for drugs/controlled substances and who is subject to and has complied with the return-to-duty testing provisions above shall, at the City's discretion, be permitted to return to work subject to the following:
A. 
The covered employee has been evaluated by a substance abuse professional who shall determine what assistance, if any, the covered employee needs in resolving problems associated with alcohol misuse and/or drugs/controlled substance use; and
B. 
The covered employee shall be subject to unannounced follow-up testing.
(1) 
The covered employee shall be subject to such follow-up testing for both alcohol misuse of drugs/controlled substances if the substance abuse professional recommends testing for both alcohol and drugs/controlled substances.
(2) 
The number and frequency of such tests shall be determined by the substance abuse professional and shall consist of at least six tests in the first 12 months following the covered employee's return to duty. Follow-up testing shall not exceed 60 months after the covered employee's return to duty.
(3) 
The substance abuse professional may terminate such tests at any time after the first six tests have been administered if he or she determines the tests are no longer necessary.
A. 
Just cause for discipline up to and including discharge shall be established when a covered employee engages in any conduct in violation of the provisions of this article or City work rules.
B. 
Failure to comply with any required evaluation by a substance abuse professional or failure to comply and remain in compliance with any and all prescribed or recommended rehabilitation and/or treatment programs shall establish just cause for discipline up to and including discharge.
A. 
All records shall be maintained in a secure location with controlled access.
B. 
Except as required or permitted by law or expressly authorized or required by Title 49, CFR Subtitle B, Chapter III, Section 382.405, the City shall not release information that is contained in records.
C. 
Records shall be made available to a subsequent employer upon receipt of a written request from a covered employee. Disclosure by the subsequent employer is permitted only as expressly authorized by the terms of the covered employee's request.
D. 
Upon written request, a covered employee is entitled to copies of any records pertaining to the covered employee's use of drugs/controlled substances or alcohol, including any records pertaining to his or her drug, alcohol or drugs/controlled substances tests.
E. 
All results of alcohol and/or drugs/controlled substances testing conducted pursuant to this policy shall be made available, upon request, to the Secretary of Transportation, any DOT agency or any state or local officials with regulatory authority over the City or any of its drivers.
A. 
Reporting a drug conviction. The Drug-Free Workplace Act, Public Law 100-690, Title V, Subtitle D, makes it a condition of employment that all City employees notify the City (your immediate supervisor or the Personnel Director) of any criminal statute conviction for a violation occurring in the workplace no later than five days after such conviction. Within 10 days of receiving such notice of conviction, the City will notify the appropriate federal contracting or granting agency, if any, as required. This is required by the federal law. Within 30 days of notice of the workplace drug conviction, the City will:
(1) 
Require the employee to satisfactorily participate in a drug or alcohol assistance or rehabilitation program that is approved by the City; or
(2) 
Take appropriate disciplinary action up to and including discharge.
A. 
Upon report of a positive test, the employee or applicant will be notified of the test results. As part of that notification, he or she will be provided an opportunity to explain any positive results. An employee or applicant whose test results were positive may, at the employee's or applicant's own expense, have a retest conducted of the original sample at a laboratory of the employee's choice that has been pre-approved by the City. An employee or applicant shall request such retest within 30 days of being notified of the original test results.
B. 
The laboratory used for the retest shall have chain of custody procedures to ensure proper identification, labeling and handling of test samples and proper exchange with and return of the samples to the original medical group or laboratory. Following review of the appeal process, a final determination will be made by the appropriate authority. Employees who have disciplinary action taken against them as a result of a positive drug test may file a grievance or appeal under the applicable grievance or appeal procedure.
A. 
Substance abuse screening will be conducted by certified operators of breath alcohol testing devices or by the medical group or groups responsible for administering preemployment physical examinations. The integrity of the urine or blood sample being tested or the breath test record card will be ensured by an explicit chain-of-custody procedure developed by the medical group or laboratory. Any testing, testing-related documents and test results will be kept confidential and will only be released to the employee or applicant, the Personnel Department Head, a department administrator or a counselor of the Employee Assistant Program. Further disclosure of such information is prohibited unless written authorization is obtained from the employee or applicant. Any breach of confidentiality will subject the employee responsible to disciplinary action up to and including termination.
B. 
The Personnel Department will assist supervisors in policy implementation, day-to-day administration and with disciplinary action arising from implementation of the article.
C. 
A training program will be provided to assist supervisory personnel in identifying drug and alcohol use among employees. The training will be directed towards helping supervisors recognize the conduct and behavior that give rise to a reasonable suspicion of drug or alcohol use.
D. 
The Personnel Manager will be responsible for scheduling the screening of applicants and employees during normal working hours. Department directors will assume responsibility for scheduling employees for testing when the Personnel Manager is not available.
E. 
This article is intended to be a unilateral expression of the general policies, procedures and guidelines concerning substance abuse and the City's contractual rights of employment, whether express or implied, between the City and its employees. The City reserves the right to change these provisions.