HomeMy WebLinkAbout94-163 - ADMIN Resolution - City Council - 1994/11/20RESOLUTION 9 5 -16 3
RESOLUTION ESTABLISHING A POLICY
FOR DRUG AND ALCOHOL TESTING OF
CITY OF ST. LOUIS PARK
EMPLOYEES WHO HOLD A COMMERCIAL
DRIVERS LICENSE AS A REQUIREMENT OF THEIR JOB
Whereas, it is the goal of the City of St. Louis Park to establish and maintain a healthy
and efficient workforce free from the effects of drug and alcohol abuse; and
Whereas, it is the intent of the City of St. Louis Park to comply with the Federal Omnibus
Transportation Employee Testing Act, and the U.S. Department of Regulations, 49 Code
of Federal Regulations, Part 382;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of St. Louis
Park that the attached DRUG AND ALCOHOL TESTING POLICY IMPLEMENTING
THE FEDERAL OMNIBUS TESTING ACT AND THE U.S. DEPARTMENT OF
REGULATIONS, 49 C.F.R. PART 382 be approved effective January 1, 1996.
Attest:
City Clerk
id...7,i
Adopted by the City Council November 20, 1995
h &J )64 -d -a
Mr
Reviewed for Administration: Approved as to form and execution:
Avt, %aV_,_e____ .
ager
City Attorney
CITY OF ST. LOUIS PARK
DRUG AND ALCOHOL TESTING POLICY
IMPLEMENTING THE FEDERAL OMNIBUS
TRANSPORTATION EMPLOYEE TESTING ACT
AND THE U. S. DEPARTMENT OF REGULATIONS,
49 C.F.R. PART 382
EFFECTIVE JANUARY 1, 1996
The purpose of this policy is to establish programs designed to help prevent accidents and
injuries resulting from the misuse of alcohol or use of controlled substances by drivers of
commercial vehicles.
The City is concerned about providing a safe workplace for its employees and a safe
environment for the public, therefore, this policy sets forth the Federal mandates and
establishes clear standards concerning drugs and alcohol, which drivers of commercial
vehicles must meet. It also establishes a testing procedure to ensure that those standards
are met.
This drug and alcohol testing policy is intended to conform to the Federal Highway
Administration (FHWA) regulations set forth in the Federal Omnibus Transportation
Testing Act, and Title 49 of the Code of Federal Regulations (CFR) Part 382. This policy
is in addition to and separate from the City's Drug and Alcohol Testing Policy which
implements the requirements of state law and the Federal Drug Free Workplace Act of
1988.
Definitions
For purposes of this policy, the following definitions will apply
a. "Accident" means an occurrence involving a commercial motor vehicle operating on
a public road which results in a fatality; bodily injury to a person who, as a result of
the injury, immediately receives medical 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 vehicle to be transported away from the scene by a tow truck
or other vehicle 49 C.F.R. 390 5
b. "Alcohol" means the intoxicating agent in beverage alcohol, ethyl alcohol, or other
low molecular weight alcohols including methyl and isopropyl alcohol.
c. "Confirmation test" For alcohol testing it means a second test, following a screening
test with a result of 0 02 or greater For drug testing it means a second test,
independent of the screening test, that uses a method of analysis approved under
FHWA guidelines as being reliable and accurate for providing specific data as to the
1
t
i
drugs or their metabolites detected in a screening test
d. "Commercial Vehicle" means any vehicle that
1. has a gross combination weight rating of 26,001 or more pounds inclusive of a
towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
2. has a gross vehicle weight rating of 26,001 or more pounds.
3. is designed to transport sixteen (16) or more passengers, including the driver, or
4. is of any size and is used in the transportation of materials found to be hazardous
for the purposes of the Hazardous Materials Transportation Act and which
require the motor vehicle to be placarded under the Hazardous Materials
Regulations (contained in 49 C.F R 172 subp. F.).
e. "Drug" Any substance (other than alcohol) that is a controlled substance as defined
under CFR Parts 391 and 40.
f. "Drug and Alcohol Testing", "Drug or Alcohol Testing", and "Drug or Alcohol
Test" Analysis of a body component sample approved under FHWA guidelines,
including breath and urine, for the purpose of measuring the presence or absence of
drugs, alcohol or their metabolites in the sample tested.
g.
"EBT (evidential breath testing device)" An EBT approved by the National
Highway Traffic Safety Administration (NHTSA) for evidential breath testing of
breath and placed on NHTSA's "Conforming Products List of Evidential Breath
Measurement"
h. "Employee" A person who performs -services for the City of St. Louis Park for
compensation, in whatever form, who are required operate a Commercial Motor
Vehicle in the performance of their duties
i. "Emplbyer" means the City of St. Louis Park acting through its City Manager or a
designee of the City Manager.
j. "Initial Screening Test" means a drug or alcohol test which uses a method of
analysis approved by the FHWA as being capable of providing data as to general
classes of drugs, alcohol, or their metabolites
k. "Job applicant" means a person who applies to become an employee of the City of
St. Louis Park, and includes a person who has received a job offer made contingent
on the person passing drug and alcohol testing
1. "Medical Review Officer" is a licensed physician responsible for receiving
laboratory results generated by the employers drug testing program and who has
knowledge of substance abuse disorders and has appropriate medical training to
interpret and evaluate an individual's positive test result together with employee's
medical history and any other relevant biomedical information.
m. "Positive Test Result" means a finding of the presence of drugs or alcohol, or their
metabolites in the sample tested in levels at or above the threshold detection levels
set by the FHWA.
n. "Reasonable suspicion" means that the City believes the appearance, behavior,
speech, or body odors of a driver are indicative of the use of a controlled substance
or alcohol based on the observation of at least one (1) supervisor who has received
training in the identification of behaviors indicative of drug and alcohol use.
o. "Safety sensitive function(s)" means meeting any of the following conditions.
1. when a driver is waiting to be dispatched; or
2. when inspecting and servicing any commercial vehicle; or
3. driving time; or
4. all other time in a commercial vehicle; or
5. when loading and unloading, or supervising loading and unloading; or
6. all time spent on requirements when an accident occurs; or
7. all times at a disabled vehicle.
p. "Valid medical reason" means meeting any of the following conditions:
1. based on a written prescription or an oral prescription reduced to writing which
names the employee as the person for whose use it is intended; or
2. The drug was prescribed, administered and dispensed in the course of professional
practice by or under the direction and supervision of a physician; and
3 The drug was used in accord with the terms of the prescription and the physician
has advised the employee that the substance does not adversely affect the
employees ability to safely operate a commercial motor vehicle Use of any over-
the-counter medication, in accord with the terms of the product's directions for
use, shall also constitute a valid medical reason.
General City Rules
The City requires that all employees are required to report to work on time, either
scheduled work hours or call-back, in appropriate mental and physical condition for work
3
1
1
An employee, covered by this policy, may be subject to discipline, up to and including
termination, for violation of the following rules
1. Employees shall refrain from taking any non-prescription or prescription drugs that
would impair their ability to perform their job safely Taking of such drugs does not
automatically exclude the employee from reporting for duty, except when instructed by
a physician who has advised the driver that the substance adversely affects the driver's
ability to safely operate a Commercial Motor Vehicle. An employee shall notify his/her
supervisor when taking prescription or non-prescription medications that may lead to
impairment.
2. Under City policy and applicable state and law, no employee shall use, possess,
manufacture, sell or transfer drugs or drug paraphernalia while the employee is
working, or operating the employer's vehicle, machinery or equipment.
3. Except pursuant to a valid medical reason, as described under definitions, no employee
shall be impaired due to drug or alcohol usage, or under the influence of any drug or
alcohol while the employee is engaged in conducting the business of the City, or while
the employee is operating the employer's vehicle, machinery or equipment
4. All applicants, including persons currently employed by the City applying for a position
where job duties include operating the vehicle described above will be required to take
a drug test if a job offer is made. The job offer is contingent upon a negative drug test
report.
General Rules Covered by the Federal Highway Administration Testing Act
An employee covered by this policy, may be subject to discipline, up to and including
termination, for violation of the following rules
1. No employee shall perform safety sensitive functions within four hours after using
alcohol.
2. An employee involved in a vehicular accident while driving a commercial motor vehicle
shall not consume alcohol within eight hours following the accident, or until tested,
whichever comes first.
3. All employees must notify their supervisor of any criminal drug statute conviction for a
violation occurring on or off work premises
4. Except pursuant to a valid medical reason, as described under definitions, no employee
shall be impaired due to drug or alcohol usage, or under the influence of any drug or
alcohol while the employee is engaged in conducting the business of the City, or while
the employee is operating the employer's machinery or equipment
Federal Highway Administration Drug and Alcohol Testing Provisions
In accordance with Federal Highway Administration drug and alcohol testing regulations,
the City has implemented a drug and alcohol testing program effective January 1, 1996
In order to guard against any inaccurate test results, drug testing will be done in
accordance with very strict procedures as required by the FHWA and the U.S
Department of Transportation drug testing regulations All drug tests that are initially
positive will be confirmed by a second test of the original urine sample. Any confirmed
positive test will be reviewed by the MRO to verify a positive or negative finding.
Alcohol testing will be conducted according to the FHWA and U.S Department of
Transportation's alcohol testing regulations. All breath alcohol tests that are initially
positive will be confirmed by a second test. Alcohol tests will be performed only on
testing equipment approved by the U S. Department of Transportation.
Circumstances for Drug or Alcohol Testing
Job applicants
All individuals whom the employer has made a contingent offer of employment as a driver
of a commercial motor vehicle must be tested for drugs Employees promoted to a
position where they are required to have a commercial drivers license will be required to
undergo testing under the provisions of this policy.
Employees
Random
The employer must conduct unannounced testing based on a random selection of
employees just before, during, or just after the performance of safety -sensitive functions.
Under the random selection process, there is an equal probability that an employee in a
safety -sensitive position subject to the selection mechanisms will be selected for testing.
The City does not have the discretion to waive the selection of any employee chosen on a
random selection basis
Reasonable Suspicion
The employer may request or require an employee to undergo drug and/or alcohol testing
if the employer or supervisor of an employee, who has been trained in the detection of
probable drug or alcohol use, directly observes an employee whose conduct or appearance
is indicative of use of alcohol or controlled substances
Post Accident
Following an "accident" involving a commercial motor vehicle. Accident does not include
an occurrence invloving only boarding and alighting from a stationary motor vehicle, an
occurrence involving only the loading or unloading of cargo, or an occurrence in the
course of the operation of a passenger car or a multipurpose passenger vehicle by a motor
carrier and is not transporting passengers for hire or hazardous materials of a type and
quantity that require the motor vehicle to be marked or placarded in accordance with 49
C.F.R. Part 177 823 49 C.F R 390 5
5
1
1
Return to Duty
Where an employee has• had a test result of 0 04 or greater for alcohol, or had a positive
drug test result, or been found to have violated the General Rules described above, then
the employee shall not return to work until after undergoing return -to -duty tests indicating
an alcohol concentration of less than 0.02 and/or a verified negative result for controlled
substances
Follow-up
Following a determination by a certified substance abuse professional that an employee is
in need of assistance in resolving problems with alcohol and/or drug abuse, an employee
shall be subject to unannounced follow-up alcohol and/or drug testing as directed by the
substance abuse professional. Random follow-up testing will occur a minimum of 6 times
in the first 12 months following the return -to -duty and shall not exceed 60 months from
the date of employee's return to duty.
An employee shall be compensated for all time spent providing a breath sample or urine
specimen, including travel time to and from collection site, in order to comply with
random, reasonable suspicion, post accident, or follow up testing.
Refusal to Undergo Testing
Job applicants
Any applicant who refuses to take a drug/alcohol test, after a job offer has been made, will
not be considered for employment and the job offer will be immediately withdrawn
Employees
If an employee refuses to undergo drug or alcohol testing requested or required by the
City, no such test shall be given, and the City Manager may discharge that employee.
A driver "refuses to submit" to an alcohol or drug test when the driver (1) fails to provide
adequate breath for alcohol testing without a valid medical explantion after he or she has
received notice of the requirement for breath testing, (2) fails to provide adequate urine
for drug testing without a genuine inability to provide a specimen (as determined by a
medical evaluation), after he or she has received notice of the requirement for urine
testing, or (3) engages in conduct that clearly obstructs the testing process. 49 C F.R.
382.107.
Procedure for Testing
Notification form
Before requesting an employee undergo drug or alcohol testing, the employer shall
provide the individual with a form on which the employee will (1) acknowledge that the
employee has seen a copy of the employer's drug and alcohol testing policy; and (2)
indicate any over-the-counter or prescription medications that the employee is currently
taking or has recently (within the last month) taken, and any other information relevant to
the reliability of, or explanation for, a positive test result, and (3) indicate consent to
undergo the drug and/or alcohol testing
Medical Facility Consent Form
The employee must also indicate consent to undergo the drug and alcohol testing on any
consent forms provided by the medical facility taking the sample or breath alcohol
technician.
Test Sample
The test sample shall be obtained in a private setting, and the procedures for taking the
sample shall insure privacy to employees to the extent practicable, consistent with the
prevention of tampering with the sample, and shall conform with applicable FHWA rules.
All test samples shall be obtained by or under the direct supervision of a health care
professional.
Identification of Samples
Each sample shall be sealed into a suitable container free of any contamination that could
affect test results. The sample shall be immediately labeled with a specimen identification
number, initialed by the employee, and dated by the person witnessing the sample.
Chain of Custody
The employer shall maintain a written record of the chain of custody of the sample, ensure
proper handling thereof, and comply with the rules adopted by the FHWA pertaining to
chain of custody.
Laboratory
All drug testing shall use the services of a testing laboratory certified by the Substance
Abuse and Mental Health Services Administration (SAMHSA), of the Department of
Health and Human Services (DHHS).
Methods of Analysis
The testing laboratory shall use methods of analysis and procedures to ensure reliable drug
and alcohol testing results, including standards for initial screening tests and confirmatory
tests. For positive alcohol test result using an EBT a confirmation test shall be conducted
no sooner than fifteen minutes after the initial test In all other cases, the method of
analysis shall use immuno -chemical technology or chromatography for initial screening
tests; and the confirmation must be by gas chromatography/mass spectrometry. Except
where gas chromatography/mass spectrometry is not the scientifically accepted method of
choice, the test must be confirmed by a method using some form of chromatography
Retention and Storage
Retention and storage procedures shall comply with the rules adopted by the FHWA All
samples, except breath samples, from an initial screening test that produced a positive test
result shall be retained and properly stored for at least six (6) months.
7
1
1
1
MRO Report
The MRO shall prepare a written report indicating the drugs or their metabolites tested
for, the types of tests conducted, and whether the test produced negative or positive test
results.
Rights of Employees
Prior to making a determination to verify a test result as positive, the MRO must make all
reasonable efforts to contact the employee directly (on a confidential basis) to determine
whether he or she wishes to discuss the test result with the MRO If, after making all
reasonable efforts, the MRO is unable to reach the employee directly, the MRO must
contact a designated official of the City who, in turn, shall direct the employee to contact
the MRO as soon as possible
If an employee has not contacted the MRO within seventy-two hours, the employee
may present to the MRO information documenting that a serious illness, injury or other
circumstances unavoidably prevented the employee from timely contacting the MRO
If the MRO concludes there is a legitimate explanation for failure to contact the
MRO within 72 hours, the MRO may direct the retest.
The employer shall, within three (3) working days after receiving results of test report
from the MRO, notify the employee of the results of random, reasonable suspicion and
post -accident tests for controlled substances if the test results are verified positive. The
employer shall also inform the employee which controlled substances were verified
positive. The City shall also inform an employee or job applicant of the following rights:
1. The right to request and receive from the employer a copy of the test result report.
2. Within seventy-two (72) hours after notice from the MRO of a positive drug test
result, the right to request, in writing to the MRO, a confirmatory retest of the original
sample at the employee's expense at the original testing laboratory or another DI -IHS
certified testing laboratory. In the event of a negative test result on a requested retest
the costs for the retest will then be borne by the employer.
4. The right not to be discharged, disciplined, discriminated, or requested or required to
undergo rehabilitation on the basis of a positive test result from an initial screening test
that has not yet been verified by a confirmatory test
5 The right of an employee who has been suspended without pay to be reinstated with
back pay if the outcome of the confirmatory test or requested confirmatory retest is
negative
6. The right not to be discharged, disciplined, discriminated, or required to be
rehabilitated on the basis of medical history information revealed to the employer
8
concerning the reliability of, or explanation for, a positive test result unless the
employee was under an affirmative duty to provide the information before, upon, or
after hire
7. The right of access to information in the subject's personnel file relating to positive test
result reports and other information acquired in the drug and/or alcohol testing
process, and conclusions drawn and actions taken based on the reports or acquired
information.
8. The right of an employee who has made a timely request for a confirmatory retest to
suffer no adverse personnel action if the confirmatory retest does not confirm the result
of the original confirmatory test, using drug or alcohol threshold detection levels as
established for a confirmatory retest by FHWA regulations.
Action After Test
Job Applicant
The City Manager will not withdraw an offer of employment made contingent on the job
applicant passing drug testing based on a positive result from an initial screening test that
has not been verified by a confirmatory test (and a confirmatory retest, if requested). A
job applicant who receives a positive test result, fails or refuses a confirmatory retest, or
does not request in writing a confirmatory retest within five (5) days after notice of a
positive test result of a confirmatory test, may be refused employment, and will be notified
of the reasons for such refusal.
Employees
The City will not discharge, discriminate, or request or require rehabilitation of an
employee solely on the basis of a positive test result from an initial screening test that has
not been verified by a confirmatory test. Where there has been a positive test result in a
confirmatory test and in any confirmatory retest, the employer will do the following unless
the employee has furnished a valid medical reason for the positive test result:
1. For an alcohol test result indicating an alcohol content of 0.02 or greater but less than
0.04 the employee shall be removed from duty for twenty-four hours following
administration of the test. For the first or second offense the employee will use any
accumulated vacation, accumulated compensatory time or if they have no accrued
leave time, non -pay for the hours of work missed. For a third offense, it shall be the
City's policy that the employee shall be suspended without pay for one full day and
referred to the employee assistance provider
2. For an alcohol test result indicating an alcohol content of 0.04 or greater or a positive
drug test, the employee will be
a. suspended from duty without pay for 24 hours; and
9
b. removed from all safety -sensitive functions until they have been referred for an
evaluation by a certified substance abuse professional. If that evaluation determines
that the employee is chemically dependent, the employer will give the employee
an opportunity to participate in, at the employee's own expense or pursuant to
coverage under an employee benefit plan, either a drug or alcohol counseling
or rehabilitation program, whichever is more appropriate as or alcohol counseling
determined by the employer after consultation with the substance abuse professional.
The employee shall sign a release permitting the employer to monitor participation
and compliance with counseling or a rehabilitation program; and
c. Completed any recommended treatment;
d. Taken a return -to -duty test with a negative drug test result or an alcohol test result
indicating an alcohol content of less than 0.02; and
e. Subject to random follow-up testing for 60 months. Random follow-up testing will
occur a minimum of 6 times in the first 12 months following the return -to -duty and
shall not exceed 60 months from the date of employee's return to duty.
If the employee:
a. refuses to participate in the counseling or rehabilitation program; or
b. fails to successfully complete the program as evidenced by withdrawal from the
program before its completion; or
c. is unable to perform the safety sensitive functions of the job in question because of a
positive test result on any subsequent return -to -duty or follow-up testing after
completion of the program; or
d. presents a direct threat to property or the safety of others, or is otherwise considered
unable to perform in good faith,
The employer may discharge or recommend that the employee be discharged from
employment.
Other Misconduct
Nothing in this policy limits the rights of the employer to discipline or discharge an
employee on grounds other than a positive test result in a confirmatory test
10
Appeals Procedure
Concerning disciplinary actions taken pursuant to this drug and alcohol testing policy,
available appeal procedures are as follows.
1. Temporary, Probationary and Seasonal employees as defined in the City of St. Louis
Park Personnel Ordinance shall have no right of appeal.
2. Regular employees as defined in the City of St Louis Park Personnel Ordinance
shall submit in writing, an appeal within 5 days of a positive confirmatory test to:
Personnel Officer, City of St. Louis Park, 5005 Minnetonka Blvd., St. Louis Park,
MN 55416.
3. An employee who is covered by a collective bargaining agreement may elect to seek
relief under the terms of that agreement by contacting the appropriate union and
initiating a grievance procedure.
Data Privacy
The City will not disclose the test results reports and other information acquired in the
drug or alcohol testing process to another employer or to a third party individual,
governmental agency, or private organization without the written consent of the employee
tested, unless permitted by law or court order.
Administrative Responsibility
1. The City Manager or designee shall be responsible for implementing this policy.
2. The Personnel Officer is responsible for responding to all questions concerning this
policy and the provisions contained herein.
3. Each Department Manager and Supervisor shall be responsible for informing
employees of this policy.
4. This policy shall be distributed to each employee that possesses a Commercial Drivers
License as a function of their job Those employees shall acknowledge in writing
receipt of this policy - .
5. All Supervisors and Department Heads shall receive training in determining reasonable
suspicion
6. The City. has the unilateral right to modify this policy as changes in regulations or laws
occur.
11