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Article 30 - Drug & Alcohol Testing
| Section 30.1 | Purpose |
| Section 30.2 | Applicability |
| Section 30.3 | Objectives |
| Section 30.4 | Tests |
| Section 30.5 | Definitions |
| Section 30.6 | Work Day Compliance Period |
| Section 30.7 | Prohibited Conduct |
| Section 30.8 | Procedures for Testing |
| Section 30.9 | Refusal to Submit to Testing |
| Section 30.10 | Uncompleted Testing |
| Section 30.11 | Referral, Evaluation and Treatment |
| Section 30.12 | Consequences for Drivers |
| Section 30.13 | Employee Verification |
| Section 30.14 | Federal Compliance |
Article 30
DRUG & ALCOHOL TESTING1
Adopted 12/03/01
The purpose of this policy is to establish a District-based alcohol and controlled substances testing program to help prevent accidents and injuries resulting from the misuse of alcohol and controlled substances by drivers of commercial motor vehicles in compliance with the Federal Department of Transportation Rule 49 CFR Part 40, and 49 CFR Parts 382, et. al., otherwise known as The Omnibus Transportation Act of 1991, enacted October 28, 1991 which becomes part of this policy.
This policy applies to:
(A) employees who perform safety-sensitive functions on interstate or intrastate highways;
(B) all drivers with a CDL (Commercial Driver's License) who are transporting 16 or more persons;
(C) employees with a CDL operating license and a vehicle with a gross ton weight of 26,001 pounds or more.
(A) To establish rules and procedures to detect and deter on-duty drug and alcohol use, misuse and impairment by person(s) who possess for use, as an employee of this District, a commercial driver's license, or other employees who perform safety sensitive functions.
(B) To provide reasonable measures for the early detection of personnel not fit to perform activities within the scope of this policy.
(C) To maintain a workplace free of drugs and alcohol.
(D) To inform employees through education, in-service training and other appropriate forums, about illegal drugs, and alcohol abuse, their use, possession, distribution, and the effects of such substances.
1Approved by Cathy Neigel, Unit President # 6860, in the presence of Charles Bird (CSEA) and Superintendent of Schools Paul Doyle on July 16, 1996 B re-adopted 12/03/01].
There are several occasions when an individual will be subject to drug and alcohol screening tests pursuant to this policy. During the first year of this policy, January 1, 1996, all drivers with Commercial Drivers Licenses (CDL) in safety sensitive positions will be tested on a random basis. Thereafter, in each subsequent year, the tests will be on a random selection basis. Other times when tests shall be administered are:
(A) Pre-Employment/Pre-Duty;
(B) Reasonable Suspicion;
(C) Random Selection;
(D) Post Accident;
(E) Return-to-Duty; and
(F) Follow-up.
(A) "Alcohol" shall mean the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohol including methyl and isopropyl alcohol.
(B) "Alcohol Use" shall mean the consumption of any beverage, mixture, or preparation including any medication containing alcohol.
(C) "Breath Alcohol Technician" or "BAT" shall mean an individual who instructs and assists individuals in the alcohol testing process and operates an evidential breath testing device.
(D) "BAC" shall mean blood alcohol content level.
(E) "Commercial Motor Vehicle" shall mean a motor vehicle or a combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
(1) has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with gross vehicle weight rating of more than 10,000 pounds, or
(2) has a gross vehicle weight rating of 26,001 or more pounds; or
(3) is designed to transport sixteen (16) 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 (49 CFR PART 172, SUBPART F).
(F) "Confirming Test" for alcohol testing shall mean a second test, following a screening test with a result of 0.02 or greater, that provides quantitative data of alcohol concentration. For controlled substances "confirming tests" shall mean a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the screen test and which uses a different technique and chemical principle from that of the screen test in order to ensure reliability and accuracy. (GC/MS is the only authorized confirmation for cocaine, marijuana, opiates, amphetamines, and phencyclidine).
(G) "Drug and Alcohol Coordinator" shall be the Superintendent of Schools or his/her designee. (School Business Executive)
(H) "Evidential Breath Testing Device" or "EBT" shall mean a device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHTSA's "conforming Product's List of evidential Breath Measurement Devices."
(I) "Follow-up Testing" shall mean tests given to drivers that are in need of assistance in resolving problems associated with alcohol misuses and/or controlled substances following a determination by a Substance Abuse Professional recommended by Partners In Safety or one provided by the District. This is an unannounced test, given at least six (6) times within twelve (12) months (but in any event not to exceed 60 months) following the employee's return to duty with the actual frequency and number of tests determined by the SAP.
(J) "Medical Review Officer@ or AMRO" shall mean Dr. Russell Kamer or a licensed physician responsible for receiving laboratory results generated by the District's drug test program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his or her medical history and any other relevant biomedical information.
(K) "Post Accident" shall mean a chemical test for alcohol and controlled substances administered to each surviving District driver by appropriately trained individuals at the scene of an accident or at a designated collection site, in which there is a fatality or in which medical attention is given to anyone involved in the accident, or in which the driver is issued a citation for a moving violation or in which the vehicle is required to be towed away.
(L) "Post-Rehabilitation/Return-to-Duty" shall mean unannounced chemical testing for alcohol and controlled substances administered at intervals to ensure that an employee in a safety sensitive function is maintaining abstinence from the abuse of drugs and/or alcohol.
(M) "Pre-Employment/Pre-Duty Testing" shall mean a chemical testing of employees for alcohol and controlled substances prior to their assuming duties of a safety-sensitive function with the District in positions covered by federal regulations to ensure employees are free of illegal drugs.
(N) "Random Drug/Alcohol Testing" shall mean a system of unannounced chemical testing for alcohol and controlled substances administered in a statistically random manner throughout the year to a group employed by the District in a safety-sensitive function so that all persons within that group have an equal probability of selection each time said random pool is created for selection. Each year after the first year of this policy, the number of random tests for alcohol conducted by the District will equal at least 25% of all the safety-sensitive drivers. The number of random tests for controlled substances will equal at least 50% of all safety-sensitive drivers.
(O) "Reasonable Suspicion" shall mean a belief that the driver has violated the alcohol or controlled substances prohibitions, based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. A written record shall be made of observations leading to controlled substances reasonable suspicion, signed by the supervisor (Transportation Supervisor) and other District trained designee (Superintendent of Buildings and Grounds) who made observations, within twenty-four (24) hours of the observed behavior or before the results of controlled substances tests are released, whichever is earlier. This test for alcohol must be administered within two (2) hours of the determination to administer such test, or the District shall prepare and maintain on file a report stating reasons why the test was not promptly administered. If this test is not administered within eight (8) hours of the determination, the District shall not administer the test and shall prepare and maintain a report documenting said failure to test.
(P) "Refusal to Submit" shall mean a driver who :
(1) fails to provide adequate breath for testing without a valid medical explanation after he or she had received a notice or the requirement for the breath testing;
(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;
(3) engages in conduct that clearly obstructs the testing process; or
(4) refuses to submit;
will be classified as a refusal to submit to an alcohol or controlled substances test.
(Q) "Return-to-Duty Test" shall mean a test administered prior to a suspended employee's return to duty. The return-to-duty test administered following confirmation of a positive controlled substance test, must result in a verified negative result for controlled substances.
(R) "Screening Test" shall mean
(1) in alcohol testing, an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system; and
(2) in controlled substances testing, an immunoassay screen to eliminate "negative" urine specimens from further consideration.
(S) "Safety Sensitive Function" shall mean any of those on-duty functions as listed below:
(1) All holders of commercial drivers licenses (CDL'S) plus school bus mechanics.
(T) "Substance Abuse Professional" shall mean a licensed physician (Medical
Doctor or Doctor of Osteopathy), or 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 of and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.
Section 30.6 Work Day Compliance Period
Employees covered by this policy may be requested to participate in drug and alcohol testing as follows:
(A) Prior to the start of duty in a safety-sensitive function;
(B) During duty hours in a safety-sensitive function; and/or
(C) Following completion of duty in a safety-sensitive function.
Section 30.7 Prohibited Conduct
(A) Alcohol
(1) No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.
(2) No driver shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol, unless the alcohol is manifested and transported as part of a shipment. No employer having actual knowledge that a driver possesses unmanifested alcohol may permit the driver to drive or continue to drive a commercial motor vehicle.
(3) No driver shall use alcohol while performing safety sensitive functions. No employer having actual knowledge that a driver is using alcohol while performing safety-sensitive functions shall permit the driver to perform or continue to perform safety-sensitive functions.
(4) No driver shall perform safety-sensitive functions within four (4) hours after using alcohol. No employer having actual knowledge that a driver has used alcohol, within four (4) hours shall permit the driver to perform or continue to perform safety-sensitive functions.
(5) No driver required to take a post-accident alcohol test shall use alcohol for eight (8) hours following the accident, or until he/she undergoes a post accident alcohol test, whichever is first.
(6) No driver shall refuse to submit to a post-accident alcohol or controlled substances test required under this policy, a random alcohol or controlled substances test required under this policy, a reasonable suspicion alcohol or controlled substances test required under this policy, or a follow-up alcohol or controlled substances test required under this policy. No employer shall permit a driver who refuses to submit to such test to perform or continue to perform safety-sensitive functions.
(B) Controlled Substances
(1) No driver shall report for duty, remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a commercial motor vehicle. It is the driver's responsibility to notify the District if this situation is applicable.
(2) No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety sensitive function.
(3) The driver must notify the District, if he/she is using any drugs that cause drowsiness or otherwise impair their ability to improve his/her duties.
(4) No driver shall report for duty, remain on duty, or perform a safety sensitive function, if the driver tests positive for controlled substances. No employer having actual knowledge that a driver has tested positive for controlled substances shall permit the driver to perform or continue to perform safety-sensitive functions.
Section 30.8 Procedures for Testing
(A) Employees covered by this policy will be tested for alcohol by a breath alcohol technician using an evidential breath testing device. Split sample urine testing will be the method used for testing for controlled substances.
(B) The services of Partners in Safety will be retained to perform the collection, testing, and maintain the chain of custody to ensure the correct employee is tested and matched with the correct test results. Partners in Safety will provide the Medical Review Officer. Partners in Safety will be required to follow the federal regulations to ensure compliance with the blind sample procedure, calibration of the EBT, laboratory certification and proper training of BAT.
(C) Testing for alcohol and/or controlled substances will be taken on-site or at an approved NIDA laboratory in a secure location and with the proper safeguards to ensure the integrity of the specimens collected.
(D) If a specimen tests positive, the employee will be contacted by the MRO who will discuss his/her findings with the employee. If the MRO is not convinced that there is a reasonable cause for the positive finding, then the employee will be given the opportunity to have the second split sample tested. The cost for testing this split sample will be the employee's responsibility. The District will pay for the cost of the second split sample if the results are negative.
Section 30.9 Refusal to Submit to Testing
(A) No driver shall refuse to submit to a post-accident alcohol or controlled substances test required under the ACT (382.303), a random alcohol or controlled substances test required under the ACT (382.305), a reasonable suspicion alcohol or controlled substances test required under the ACT (382.307), or a follow-up alcohol or controlled substances test required under the ACT (382.311).
(B) No employer shall permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions.
(C) A refusal to be tested shall be defined as a refusal by an employee to complete and sign the breath alcohol testing form, to provide breath, to provide an adequate amount of breath, or otherwise to cooperate with the testing process in a way that prevents the completion of the test shall be noted by the BAT in the remarks section of the form. The testing process shall be terminated and the BAT shall immediately notify the District. An employee who refuses to be tested for alcohol or controlled substances pursuant to this policy shall be suspended without pay and an immediate review shall be undertaken by the District to determine further discipline.
Section 30.10 Uncompleted Testing
If a screening or confirmation test cannot be completed, or if an event occurs that would invalidate the test, the BAT, shall, if practicable begin a new screening or confirmation test, as applicable, e.g., using a new breath alcohol testing form with a new sequential test number (in the case of a screening test conducted on an EBT that meets the requirements of 40.53 (b) or in the case of a confirmation test).
Section 30.11 Referral, Evaluation and Treatment
(A) The District shall advise and make available to the driver the resources available for evaluating and resolving problems associated with the misuse of alcohol and use of controlled substances, including the names, addresses and telephone number of substance abuse professionals and counseling and treatment programs.
(B) The District shall ensure that each driver who engages in conduct prohibited by this policy be evaluated by a substance abuse professional who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substances use. The costs associated with this evaluation shall be covered by the health insurance policy, if such a group health insurance program exists and only up to the coverage limits.
(C) Before a driver returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by this policy, the driver shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less that 0.02 if the conduct involved alcohol, or a controlled substances test with a verified negative result if the conduct involved a controlled substance.
(D) Each driver identified as needing assistance in resolving problems associated with alcohol misuse or controlled substances use shall:
(1) be evaluated by a substance abuse professional upon the recommendation of the Medical Review Officer to determine that the driver has properly followed any rehabilitation program prescribed under paragraph 2 of this policy;
(2) be subjected to unannounced follow-up alcohol and controlled substances test administered by the District following the driver's return to duty. The number and frequency of such follow-up tests shall be as directed by the substance professional, and consist of at least six (6) tests in the first twelve (12) months following the driver's return to duty. The District may direct the driver to undergo return- to-duty and follow-up testing for both alcohol and controlled substances. If the substance abuse professional determines that return-to-duty and follow-up testing for both alcohol and controlled substances is necessary for that particular driver, such testing shall be in conformance with this policy and the requirements of the ACT. Follow-up testing shall not exceed sixty (60) months from the date of the driver's return to duty. The substance abuse professional may terminate the requirement at any time after the first six (6) tests have been administered, if the substance abuse professionals determines that such testing is no longer necessary.
(3) The evaluation and rehabilitation may be provided by the District, by a substance abuse professional under contract with the District or by a substance abuse professional not affiliated with the District.
(4) The District shall ensure that a substance abuse professional who determines that a driver requires assistance in resolving problems with alcohol misuse or controlled substances use does not refer the driver to the substance abuse professional's private practice or to a person or organization from which the substance abuse professional receives remuneration or in which the substance abuse professional has a financial interest.
(5) The requirements of this section with respect to referral, evaluation and rehabilitation do not apply to applicants who refuse to submit to a preemployment alcohol or controlled substances tests or who have a preemployment alcohol test with a result indicating an alcohol concentration of 0.04 or a controlled substances test with a verified positive test result.
Section 30.12 Consequences for Drivers
(A) No driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of the ACT's regulations or an alcohol or controlled substances rule of another DOT agency or this Policy.
(B) No employer shall permit any driver to perform safety-sensitive functions, including driving a commercial motor vehicle, if the employer has determined that the driver had violated this policy.
(C) The Superintendent of Schools and Board of Education have adopted a "zero tolerance" policy. The consequences for alcohol and controlled substance abuse shall subject the driver to discipline up to and including dismissal. For first violations of alcohol abuse the Superintendent will recommend to the Board of Education that the employee seek an unpaid leave of absence. If the employee seeks rehabilitation, he/she may use vacation time, sick time or personal time but may not seek additional days from the sick bank. Following completion of rehabilitation and clearance using return to work testing, the employee may return to work on an active paid basis. For subsequent violations the Superintendent shall review each case individually and may recommend to the Board of Education termination of the employee unless the employee chooses to resign his/her position voluntarily before this action occurs.
(D) Drivers who have been found to have violated this policy shall:
(1) Be immediately suspended from their safety-sensitive function without pay.
(2) If the violation is for the illegal use or possession of controlled substances in accordance with this policy, and, after a review of all pertinent facts leading to the suspension, said driver's employment shall be subject to discipline up to and including dismissal.
(3) If the use of alcohol registers on the EBT with an alcohol content of 0.02 to 0.0399 (but less than 0.04), then the affected employee shall be suspended for a twenty-four (24) hour period without pay and will be advised to seek assistance and/or counseling through the District's EAP or other similar service agency. A second violation for the use of alcohol in a safety-sensitive position in accordance with this policy shall result in a suspension without pay pending a review of the employee's work record for disciplinary action, up to and including dismissal.
(4) If the use of alcohol registers on the EBT with an alcohol content greater than 0.04, then the affected employee shall be suspended without pay and disciplinary procedures will be initiated up to and including dismissal.
(5) The above actions shall be taken in accordance with the provisions of the employee's collective bargaining agreement, 75 of the Civil Service Law, or 3020-a of the Education Law, whichever is applicable.
Section 30.13 Employee Verification
Each driver is required to sign a statement certifying that (s)he has received this information and materials, and the District shall maintain the original signed certification for a minimum of two (2) years. The District may provide a copy of same to the driver.
Section 30.14 Federal Compliance
This policy shall not apply in any case where it is inconsistent with constitutional, statutory, or other legal provisions. If any provision of this policy is found to be contrary to law by the Supreme Court of the United States, or by any court of competent jurisdiction from whose judgment or decree no appeal has been taken within the time provided for doing so, such policy shall be modified to the extent necessary to confirm thereto. In such case, all other provisions of this policy shall remain in effect.