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HomeMy WebLinkAbout19960702 CCM RM1 /I/ o Association of Metropolitan Municipalities June 27, 1996 Dear Mr.Burt: Many critical issues affecting metropolitan cities will be dealt with in the 1997 Legislative Session. Talk of property tax reform and elimination of or reductions in LGA/HACA and removal of education financing from local property taxes could be a major issue. Lack of adequate transportation/transit funding has reached a critical point. Land use controls including regional growth management and mandated planning in areas adjacent to the seven- county metro area could be on the front burner,as well. We need your views and input on these and other important issues to help shape and establish legislative policy and direction for the Association of Metropolitan Municipalities for the 1997 session. To provide a forum for this input and discussion,we are holding our 11th annual series of Outreach Breakfast meetings for you and other city officials. The breakfast meeting for your area is scheduled for Thursday,July 18 at 7:30 a.m.,at Perkins in Eagan. Perkins is located near 35E and Yankee Doodle Road. East on Yankee Doodle Road from 35E. Go one block and turn right on Denmark Street. Go about one block and turn right at the stopsign onto Town Centre Drive. Go about 1 1/2 blocks,Perkins is on the right. The meeting is in the back room. Your input on these issues is crucial and we invite you to review the enclosed Issues Paper to help focus your thinking and facilitate good discussion at the breakfast. This will be an informal gathering and we look for a good exchange of ideas. The get-together can also be an avenue for you to tell us what you'd like to see the AMM do more or less of in the way of member services and how we can build a better rapport between city officials/AMM and metro legislators. We hope you plan to attend your area breakfast by making reservations now. We would ask that managers and mayors make this information and invitation available to city council members and interested staff persons. If you have any questions,call the AMM at 215-4000. PLEASE R.S.V.P. TO LAURIE JENNINGS, 215-4000,BY NOON MONDAY, JULY 15 Sincerely, Arik-/ eiliCIA tot& Tom Egan Charlotte Shover F iat Boyles AMM President AMM Board Member AMM Board Member Eagan Mayor Burnsville Councilmember Prior Lake Manager 14S University Avenue West Saint Paul,Minnesota S,S1o3-I044 (61/)11S-4000 Fax t81-nqq CITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION CITY COUNCIL MEETING DATE: JANUARY 2, 1996 AGENDA ITEM: DRUG AND ALCOHOL TESTING POLICY AGENDA SECTION: FOR PUBLIC WORKS EMPLOYEES NEW BUSINESS PREPARED BY: SUSAN WALSH ADMINISTRATIVE.AS SISTANT AGENDA ITEM ATTACHMENTS: POLICY APPROVED BY: In February, 1994 the Federal Omnibus Transportation Employee Testing Act of 1991 extended its rules to include local government employees. Effective January 1, 1996, the City is required to have a policy in place to test employees for drug and alcohol. Attached for City Council consideration and approval is the City of Rosemount Policy Implementing the above -referenced act. This policy applies to the City's public works maintenance employees who are all required to have a commercial drivers license. The Act and the City Policy states that a driver who is performing safety sensitive functions are prohibited from doing alcohol or controlled substance -related activities. Safety -sensitive functions are defined in the policy but generally mean a driver who is in a state of readiness to drive and/or maintains a commercial vehicle or is driving a commercial vehicle which is any city motor vehicle that weighs over 26,000 pounds. If an employee is found to have an alcohol concentration of .02 but less than .04 he cannot perform any of the safety -sensitive functions and will be sent home for a minimum of 24 hours from the time the test was given. If the employee has an alcohol concentration of .04 or greater or has tested positive for drugs for the first time, the employee will be required to undergo an evaluation by a substance abuse professional and comply with treatment recommendations and have a verified negative test result before the employee can return to work. The types of tests required are pre-employment for controlled substances, post accident testing, random testing, reasonable suspicion testing and return to duty testing. Rosemount has joined a consortium who has selected Kerr Transportation to administer the random selection of drivers and the drug testing procedures which includes a physician who reviews and interprets the results. The consortium consists of approximately 15 other cities in the metropolitan area. The alcohol testing procedure is a breath test conducted by a trained breath alcohol technician. The drug test is a urine sample and will be tested by a certified laboratory. These tests will be conducted on site by a company called MedWorks. If an employee, for the first time, tests positive for drugs or over the .04 for alcohol, the City will pay for the evaluation by a substance abuse professional. I am currently receiving quotes from different employee assistance programs, but the cost will be approximately $150 to $200 per evaluation. The recommended counseling is the responsibility of the employee. The City's public works supervisors and public works director have been trained on how to determine reasonable suspicion of drug and alcohol violations, and our maintenance workers will attend a workshop on January 5 to learn more about the federal regulations and our policy. RECOMMENDED ACTION: MOTION TO APPROVE THE CITY OF ROSEMOUNT POLICY RAPLEMENTING THE FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS CITY OF ROSEMOUNT POLICY IMPLEMENTING THE FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS 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 motor vehicles. This policy implements the requirements of the federal Omnibus Transportation Employee Testing Act and the U.S. Department of Transportation Regulations, 49 C.F.R. 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. WORK RULES: The following alcohol-related activites are prohibited: (1) A driver tested under this policy and federal Iaw who is found to have an alcohol concentration of 0.02 or greater but less than 0.04 shall not perform safety -sensitive functions, including driving a commercial motor vehicle. The driver shall not perform safety - sensitive functions until the start of the driver's next regularly scheduled duty, but not less than twenty-four hours following administration of the test and the driver will not be compensated during the time off. The driver may use vacation hours during the absence if accrued and available. (2) 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. (3) The City, having actual knowledge that a driver has an alcohol concentration of 0.04 or greater, shall not permit the driver to perform or continue to perform safety -sensitive functions. (4) No driver shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol in any quantity. (5) No driver shall use alcohol while performing safety -sensitive functions. (6) The City, having actual knowledge that a driver is using alcohol while performing safety - sensitive functions, shall not permit the driver to perform or continue to perform safety - sensitive functions. (7) No driver shall perform safety -sensitive functions within four hours after using alcohol. (8) The City, having actual knowledge that a driver has used alcohol within four (4) hours, shall not permit a driver to perform or continue to perform safety -sensitive functions. (9) No driver required to take a post -accident alcohol test because of loss of human life or who receives a citation under state or local law for a moving traffic violation arising from an accident shall use alcohol for eight (8) hours following the accident, or until the driver undergoes a post -accident alcohol test, whichever occurs first. (10) No driver shall refuse to submit to a post -accident alcohol test, a random alcohol test, a reasonable suspicion alcohol test, or a follow-up alcohol test mandated by this policy and federal law. (11) The City shall not permit a driver who refuses to submit to the mandated alcohol tests under this policy and federal law to perform or continue to perform safety -sensitive functions. The Following Controlled Substances -Related Activities are Prohibited: (1) No driver shall report for duty or 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. (2) The City, having actual knowledge that a driver has used a controlled substance, shall not permit the driver to perform or continue to perform a safety sensitive -function unless use is permitted pursuant to the written instruction of a physician. (3) A driver shall inform the driver's supervisor of any therapeutic drug use. (4) No driver shall report for duty, remain on duty, or perform a safety -sensitive function, if the driver tests positive for controlled substances. (5) The City, having actual knowledge that a driver has tested positive for controlled substances, shall not permit the driver to perform or continue to perform safety -sensitive functions. (6) No driver shall refuse to submit to a post -accident controlled substance test, a random controlled substance test, a reasonable suspicion controlled substance test, or a followup controlled substance test mandated by this policy and federal law. (7) The City shall not permit a driver who refuses to submit to the mandated controlled substance tests to perform or continue to perform safety -sensitive functions. 2 TYPES OF TESTS REQUIRED: Pre-employment Testing: Prior to the first time a driver performs safety -sensitive functions for the City, the driver shall undergo testing for controlled substances. For purposes of this subsection on pre-employment testing, the term driver includes but is not limited to a person applying to the City for a position which requires them to drive a commercial motor vehicle, a person who has recently obtained a commercial driver's license or a person whose has been reassigned or promoted into a position that requires the performance of safety -sensitive functions. Any job offer, reassignment or promotion to drive a commercial motor vehicle shall be contingent upon a negative drug and alcohol test report and the applicant's written agreement authorizing former employers to release to the City all information on the applicant's alcohol tests with a concentration result of 0.04 or greater, positive controlled substances test results, and refusals to be tested, within the preceding two years. The City also retains the right not to hire a driver who has a positive test result and who has not participated and completed a counseling or rehabilitation program as directed by the driver's substance abuse professional or who refuses to sign the release. Post -Accident Testing: (1) Drivers Tested: As soon as practicable following an accident involving a commercial motor vehicle, the City shall test for alcohol and controlled substances of each driver: (a) Who was performing safety -sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or (b) Who receives a citation under State or local law for a moving traffic violation arising from the accident, provided the accident meets the definition of accident as defined in this policy; or (c) The City may also test under the City of Rosemount Alcohol and Drug Testing Policy. An employee who is subject to post -accident testing must remain available, or the City shall consider the employee to have refused to submit for testing. The driver should receive the alcohol test within 2 hours of the accident. If this is not done, the City shall prepare and maintain a record stating the reasons the test was not administered promptly. After 8 hours, no further attempts should be made to administer the alcohol test, and the reason must be documented. Controlled substance testing should be administered as soon as possible; if the employee has not submitted to this testing within 32 hours; the City shall cease all attempts to conduct the test and document the reason. The employee is prohibited from using alcohol for 8 hours following an accident or until the employee has undergone a post -accident alcohol test, whichever comes first. Random Testing: Through a consortium, the City will receive the names of randomly -selected drivers subject to this policy for unannounced alcohol and controlled substances testing using a computer- based random number generator that is matched with the employee's identifying number. Alcohol testing shall be performed just before, during or after the driver's performance of safety -sensitive duties. Drivers selected for testing must proceed immediately to the testing site; provided, however, that if an employee is performing.a safety -sensitive function at the time of notification, driver shall cease performing the safety -sensitive function and proceed to the testing site as soon as possible. FWHA rules require the City conduct random controlled substances testing on 50% of the average number of employees and random alcohol testing on 25% of the average number of drivers. Drivers may be selected for more than one test per year. Tests shall be spread reasonably throughout the year. Reasonable Suspicion Testing: (1) Cis Determination Of Reasonable Suspicion Of Alcohol Violations: The City shall require a driver to submit to an alcohol test when the appointing authority has reasonable suspicion to believe that the driver has violated the provisions of federal law concerning alcohol. The City's determination that reasonable suspicion exists to require the driver to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver. (2) Cis Determination Of Reasonable Suspicion Of Controlled Substance Violations: The City shall require a driver to submit to a controlled substance test when the appointing authority has reasonable suspicion to believe that the driver has violated the prohibitions of federal law or this policy concerning controlled substances. The City's determination that reasonable suspicion exists to require the driver to undergo a controlled substance test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances. (3) Trained Supervisor Of Employee: The required observations for alcohol and/or controlled substance reasonable suspicion testing shall be made by a supervisor or an employee of the City who is trained in accordance with federal law. The person who makes the determination or who observes or assists with making the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver. (4) Timing Of Reasonable Suspicion Observations: Alcohol testing is authorized by federal law and this policy only if the observations required by paragraph (a) above are made during, just 4 proceeding, or just after the period of the work day that the driver is required to be in compliance with federal law and these rules. The employee may be directed by the City to only undergo reasonable suspicion testing while the employee is performing safety -sensitive functions, just before the employee is to perform safety sensitive functions, just after the employee has ceased performing such safety -sensitive functions or while the employee is in a state of readiness to perform safety sensitive functions. (5) City Drug And Alcohol Testing Poly: If the driver is not performing safety -sensitive functions and reasonable suspicion exists, drivers may be tested for drugs and alcohol under the City of Rosemount Drug and Alcohol Testing Policy. (6) Prompt Administration Of Test: If an alcohol test required by federal law and this policy is not administered within two hours following the determination of reasonable suspicion, the City shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by federal law and this policy is not administered within eight (8) hours following the determination of reasonable suspicion, the city shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test. (7) Under The Influence Prohibitions: Notwithstanding the absence of a reasonable suspicion alcohol test under this policy and federal law, no driver shall report for duty or remain on duty requiring the performance of safety -sensitive functions while the driver is under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse, nor shall the City permit the driver to perform or continue to perform safety - sensitive functions, until: (a) An alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or (b) Twenty-four (24) hours have elapsed following the determination under paragraph (f) of this Section that there is reasonable suspicion to believe that the driver has violated the prohibitions of this policy and federal law concerning the use of alcohol. (8) Written Records Of Observations: A written record shall be made of the observations leading to a controlled substance reasonable suspicion test, and signed by the supervisor or another city employee who made the observations within twenty-four (24) hours of the observed behavior or before the test results are released, whichever is earlier. .Gffaz • R _, An employee found to have violated this policy shall not return to work until after undergoing return - to -duty tests indicating an alcohol concentration of less than 0.02 and a verified negative result for controlled substances. Follow-up Testing: (1) Follow-up Alcohol and/or Controlled Substance Test: Following a determination that an employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, the City shall ensure that the employee is subject to unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the federal law. Follow up testing shall not exceed sixty (60) months from the date of the employee's return to duty. (2) Timing of Follow-up to Alcohol Test: Follow-up alcohol testing shall be conducted only while the driver is performing safety -sensitive functions, just before the driver is to perform safety -sensitive functions, just after the driver has ceased performing such safety -sensitive functions or while the driver is in a state of readiness to perform safety -sensitive functions. CONTROLLED SUBSTANCE TESTING: Controlled substances testing is conducted by analyzing an employee's urine specimen. Split urine samples will be collected according to FHWA regulations. The employee will provide a urine sample at a designated collection site. The collection site person shall pour the urine specimen into two bottles labeled "primary" and "split", seal the specimens, complete a chain of custody document and prepare the bottles for shipment to the testing laboratory for analysis. If the employee is unable to provide the appropriate quantity of urine, the collection site person shall instruct the employee to drink not more than 24 ounces of fluids and after a period of no more than two hours, again attempt to provide a complete sample. If the employee is still unable to provide a complete sample, the testing shall be discontinued and the City notified. The MRO shall refer the employee for a medical evaluation to determine if the employee's inability to provide a specimen is genuine or constitutes a refusal to test. For pre-employment testing, the City may elect to not have the referral made and revoke the employment offer. Drug test results are reported directly to the MRO by the testing laboratory. The MRO reports the results to the City's designated contact person. If the results are negative, the City is informed and no further action is necessary. If the test result is confirmed positive, the MRO Shall give the employee an opportunity to discuss the test result. The MRO must review any medical records C supplied by an employee to determine if a confirmed positive test is the result of the employee having taken legally prescribed medication. The MRO shall notify each employee that the employee has 72 hours in which to request a test of the split specimen at the employee's expense. The MRO will contact the employee directly on a confidential basis, to determine whether the person wishes to discuss the positive test result. The MRO will review the confirmed positive test result to determine whether there is an acceptable medical reason for the positive result. The MRO shall verify and report a positive test result to the City when there is no legitimate medical reason for a positive test result as received from the testing laboratory. If after making reasonable efforts and documenting these efforts, the MRO is unable to reach the employee directly, the MRO must contact the designated City contact person, who shall direct the employee to contact the MRO. If the City contact person is unable to contact the employee, the employee will be placed on suspension. The MRO may verify a test positive without having communicated directly with the employee about the test results under the following circumstances: (1) The employee expressly declines the opportunity to discuss the test results. (2) The employee has not contacted the MRO within five (5) days of being instructed to do so by the City. ALCOHOL TESTING: The FWHA alcohol test rules require breath testing administered by a Breath Alcohol Technician (BAT) using an Evidential Breath Testing Device (EBT). Two breath tests are required to determine if a person has a prohibited alcohol concentration. Any result less than 0.02 alcohol concentration is considered a "negative" test. If the alcohol concentration is 0.02 or greater, a second confirmation test must be conducted. if the driver attempts and fails to provide an adequate amount of breath, the City will direct the driver to obtain written evaluation from a licensed physician to determine if the driver's inability to provide a specimen is genuine or constitutes a refusal to test. Alcohol test results are reported directly to the designated City contact person. REFUSAL TO SUBMIT.• If the employee refuses to undergo required testing under federal regulations, no test shall be given, and the employee shall be subject to discipline up to and including termination of employment. In the case of a job applicant applying to drive for the City, if the applicant refuses, no such test shall be given, and the job applicant shall be deemed to have withdrawn the application for employment. All alcohol controlled substances test results and required records are considered confidential information. Any information concerning an individual's test results and records shall not be released without the written permission of the individual except as provided for by regulation or law. C'ONSEOUENCES FOR DRIVERS ENGAGING IN PROHIBITED CONDUCT, Employees who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences: (1) Employees shall not be permitted to perform safety sensitive functions; (2) Employees shall be advised by the City of the resources available to them in evaluating and resolving problems associated with misuse of alcohol or use of controlled substances; (3) Employees shall be evaluated by a substance abuse professional selected and paid for by the City. The substance abuse professional shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and/or controlled substance use; (4) Participation in a counseling or rehabilitation program will be at the employee's own expense or pursuant to coverage under the driver's own benefit plan. (5) Before an employee returns to duty requiring performance of a safety -sensitive function he/she shall undergo a return -to duty test with a result indicating a breath alcohol level of less then 0.02 if the conduct involved alcohol, or a controlled substance test with a verified negative result if the conduct involved controlled substance use; (6) In addition, each employee identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a substance abuse professional to determine that the employee has followed the rehabilitation program prescribed; (7) The employee shall also be subject to unannounced follow-up alcohol and controlled substance testing following the employee's return to work. This testing shall be as directed by the substance abuse professional and federal law;. (8) Federal Highway Administration (FHWA) rules require that in the event of an alcohol test result over 0.02 but less then 0.04, an employee shall not be permitted to perform safety - sensitive functions for not less than 24 hours. No action will be taken against an employee or job applicant based on a positive initial result that has not been verified by a confirmatorytest. If a job applicant receives a positive confirmatory test result, the City will withdraw the conditional offer of employment and provide the applicant with the reason. If an employee receives a positive confirmatory test result, the City will make reasonable accommodations to allow the employee to participate in a counseling or rehabilitation program. However, the City may discharge the employee if the substance abuse professional recommends a counseling or rehabilitation program and the employee refuses to participate or fails to successfully complete the program. Accommodations will be made for the initial rehabilitation. The City will consider the frequency and/or severity of subsequent positive confirmatory tests and such tests may be considered a failure to successfully complete the program. If the City deems that there was a failure to successfully complete the program, the employee will be disciplined up to and including discharge. If the City believes it is necessary to protect the safety of the employee, other employees, or the public, the City may temporarily suspend or reassign the employee pending the outcome of the confirmatory test or re -test. RIGHTS OF EMPLOYEES AND JOB APPLICANTS: (1) Opportunity to Explain: Upon a positive confirmatory test result, an employee or job applicant will be given the opportunity to explain the positive drug confirmatory test result with the Medical Review Officer. If the MRO upholds the positive drug determination, that test result will be provided to the City. There is no opportunity to explain a positive alcohol test provided in the rules. (2) Confirmatory Re -Test: Any employee or job applicant may request a confirmatory re -test of the original sample, at the expense of the employee or job applicant, within 72 hours of receiving notice of a confirmed positive test result. If the employee requests an analysis of the split specimen within 72 hours of having been informed of a verified positive test, the MRO shall direct, in writing, the laboratory to provide the split specimen to another DHHS-certified laboratory for analysis. If an employee has not contacted the MRO within 72 hours, the employee may present to the MRO information documenting that serious illness, injury, inability to contact the MRO, lack of actual notice of the verified positive test, or the other circumstances unavoidable prevented the employee from making timely contact. If the MRO concludes that there is a legitimate explanation for the employee's failure to contact within 72 hours, the MRO shall direct the analysis of the split specimen. If the confirming retest is negative, no adverse action will be taken against the employee and an applicant will be considered for employment. The City may reimburse the employee for the expense of the re -test that is negative. The City will not discharge an employee who, for the first time, receives a verified positive drug or alcohol test result -unless: (a) The employee refuses to meet with a substance abuse professional for the purpose of an evaluation for alcohol and/or controlled substance use and recommendations for an educational, counseling, or treatment program; or (b) The employee fails to enter the recommended program, or fails to successfully complete the program; or (c) The employee fails a return to duty alcohol and/or controlled substance test at the successful completion of the recommended program or subsequent unannounced follow-up alcohol and/or controlled substance testing. Violations of this policy may constitute just cause for discipline, up to an including discharge. Each situation will be evaluated on an individual basis depending upon the severity and circumstances involved. Any alcohol and/or drug testing other than that required for operators of Commercial Motor Vehicles shall be in accordance with Minnesota Statutes 181.950.957 (1987), the Minnesota Drug and Alcohol Testing in the Workplace Act. POLICYEXCEPTION.• Nothing in this policy limits or restricts the right of the City to discipline or discharge an employee for conduct which violates any City policy or department policy/procedures provided that the employee is not tested for drugs and alcohol. CON TACT.• The employer designated contact person will coordinate the implementation, direction, and administration of the City's alcohol and controlled substances policy. The contact person is the principal contact for the collection site, the testing lab, the MRO, the BAT and the person tested. Employee questions concerning this policy should be directed to the contact person: Susan M. Walsh, Administrative Assistant Telephone: 322-2002 10 ADDENDUM DEFINITIONS: Accident: An occurrence involvipg a commercial motor vehicle operating on a public road which results in: (1) A fatality; (2) Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; (3) 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. 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 under this policy and federal regulations BAT (Breath Alcohol Technician): An individual who instructs and assists individuals in the alcohol testing process and operates an EBT. Chain of Custody: Procedures to account for the integrity of each urine specimen by tracking its handling and storage from point of specimen collection to final disposition of the specimen. Commercial Motor Vehicle: A motor vehicle or combination of motor vehicles used in commerce to transport passengers or property of the motor vehicle; and (1) has a gross combination rating of 26,000 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; or (3) is designed to transport 16 or more passengers, including the driver, or 11 (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 set forth under 49 C.F.R. part 172, subpart F. (5) a commercial motor vehicle does not include a fire truck or other emergency fire equipment. Confirmation Test: For alcohol testing it means a second test, following a screening test with a result of .02 or greater, that provides quantitative data of alcohol concentration. For controlled substances testing it means a second analytical procedure to identify the presence of a specific drug. 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 in chemical principal form that of the screen test in order to insure reliability and accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine). Confirmatory Retest: For controlled substances it means a third analytical procedure to reconfirm the presence of a specific drug. If the test result of the primary specimen is positive the driver may request that the MRO direct the split specimen be tested in any different DHHS-certified laboratory for presence of drug(s). (A confirmatory retest is done at the request and expense of the employee.) Consortium: An entity, including a group or association of employers or contractors, that provides alcohol or controlled substance testing as required by federal regulations, or other U. S. Department of Transportation alcohol or controlled substances testing rules, and that acts on behalf of the employers. Controlled Substance: Any drug which is not legally obtainable or which is legally obtainable but either has not been legally obtained or is misused. The term includes, but is not limited to, marijuana, cocaine, stimulants, depressants, narcotics, hallucinogens, prescription drugs not properly used according to physician directions, prescription drugs not being used for prescribed purposes and prescription drugs procured by fraud. Driver: Any person who operates or maintains a commercial motor vehicle. This includes, but is not limited to: full-time, regularly employed drivers; part-time and temporary drivers; leased drivers and independent owner/operator contractors who are either directly employed by or under lease to the employer or who operate a commercial motor vehicle at the direction of or with the consent of the employer. For the purposes of pre-employment/pre-duty testing only, the term driver includes a person applying to the City for employment to drive a commercial motor vehicle. 12 EBT (Evidential Breath Testing Devicel: An EBT approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHTSA's "Conforming Products list of Evidential Breath Measurement Devices." iE WA: The Federal Highway Administration. MRO: Medical Review Officer. A licensed physician responsible for receiving laboratory results generated by an employer's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate a driver's confirmed positive test result together with driver's medical history and any other relevant biomedical information. Performing (A safely sensitive function): A driver is considered to be performing a safety sensitive function during any period in which the driver is actually performing, ready to perform, or immediately available to perform, or in a state of readiness to perform any safety sensitive function while on duty. 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 or official who has received training in the identification of behaviors indicative of drug and alcohol use. Refuse to Submit (to an alcohol ora controlled substances test: Occurs when a driver: (1) 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, (2) fails to provide adequate urine for controlled substances testing without a valid medical explanation after the driver has received notice of the requirement for urine testing in accordance with the provisions of this policy and federal regulation, or (3) engages in conduct that clearly obstructs the testing process. Safety -Sensitive Function: any of the following: (1) all time at a carrier or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched or in a state of readiness to drive and/or maintain a commercial motor vehicle, unless the driver has been relieved from duty by the City; 13 (2) all time inspecting equipment as required by federal regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time; (3) all driving time which shall mean all time spent at the driving controls of a commercial motor vehicle in operation; (4) all time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth, which shall mean a berth conforming to the requirements of federal regulations; (5) all time loading or unloading a commercial motor vehicle, supervising, or assisting in the loading or unloading, attending a commercial motor vehicle being loaded or unloaded, remaining in readiness to operate the commercial motor vehicle, or in giving or receiving receipts for shipments loaded or unloaded; (6) all time spent performing the driver requirements of the federal statutes related to accidents; (7) all time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle. Screening Test (also known as Initial Test): In alcohol testing, it means an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system. In controlled substance testing, it means an immunoassay screen to eliminate "negative" urine specimens from further consideration. Substance Abuse Professional: 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. 14 CITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION CITY COUNCIL MEETING DATE: JANUARY 2, 1996 AGENDA ITEM: CITY OF ROSEMOUNT DRUG AND AGENDA SECTION: ALCOHOL TESTING POLICY NEW BUSINESS PREPARED BY: SUSAN WALSH AGENDA ITEM # 7 F ITEM ADMINISTRATIVE ASSISTANT ATTACHMENTS: POLICY APPROVED BY: Attached for City Council consideration and adoption is a drug and alcohol testing policy for all city employees. This policy also applies to the public works maintenance employees in instances when the federal regulations for commercial drivers would not be applicable. This policy is written in accordance with Minnesota Statutes Chapter 181 and the Federal Drug Free Workplace Act. This policy prohibits employees from being under the influence of any drug or alcohol while working for the City and prohibits employees from using, possessing, or selling alcohol, drugs or drug paraphernalia while working for the City. The types of tests required are for job applicants, reasonable suspicion, employee requested testing and return to duty testing. Random testing of employees is not included in this policy. The procedures for testing, the rights of job applicants and employees who test policy ares in accordance with state statutes. It's important to have a policy in place in the event a situation would, arise where procedures would need to be followed. Therefore, I am recommending that Council adopt this policy. RECOMMENDED ACTION: MOTION TO ADOPT A CITY OF ROSEMOUNT DRUG AND ALCOHOL TESTING POLICY CITY OF ROSEMOUNT DRUG AND ALCOHOL TESTING POLICY Abuse of drugs and alcohol is a nationwide problem. It affects persons of every age, race, sex and ethnic group. It poses risks to the health and safety of employees of the City of Rosemount and to the public. This policy establishes standards concerning drugs and alcohol which all employees must meet. It also establishes a testing procedure to ensure that those standards are met. The Drug and Alcohol Testing Policy of the City of Rosemount, Minnesota, will conform to the requirements of state law as set forth in Minnesota Statutes Chapter 181 and the Federal Drug - Free Workplace Act of 1988 and be as follows: DEFINITIONS Confirmatory Test and Confirmatory Retest: A drug or alcohol test that uses a method of analysis allowed under one of the programs listed in Minn. Stat. 181.953, Subd. 1. Drug: A controlled substance as defined in Minn. Stat. 152.01, Subd. 4. Drug and Alcohol, Drug or Alcohol Testing, and Drug or Alcohol Test: An analysis of a body component sample according to the standards established under one of the programs listed in Minn. Stat. 181.953, Subd. 1 for the purpose of measuring the presence or absence of drugs, alcohol, or their metabolites in the sample tested. Drug Paraphernalia: As set forth in: Minnesota Statutes 152.01, Subd. 18. Employee: A person, independent contractor, or person working for an independent contractor who performs services for the City of Rosemount for compensation, in whatever form. Initial Screening Test: A drug or alcohol test which uses a method of analysis under one of the programs listed in Section 181.953, Subd. 1, or alcohol in a sample. Job Applicant: A person, who applies to become an employee of the City of Rosemount, and includes a person who has received a job offer made contingent on the person passing drug and alcohol testing. Positive Test Result: A finding of the presence of drugs, alcohol, or their metabolites in the sample tested in the levels contained in the standards of one of the programs listed in Minn. Stat. 181.953, Subd. 1. Reasonable Suspicion means a basis for forming a belief based on specific facts and rational inferences drawn from those facts. Under the Influence: Having the presence of a drug or alcohol at or above the level of a positive test result. CITY RULES: (1) No employee shall be under the influence of any drug or alcohol while the employee is working or while the employee is on City premises or operating City vehicles, machinery, or equipment, except to the extent authorized by a valid medical prescription. (2) No employee shall use, possess, manufacture, distribute, dispense, sell or transfer drugs, alcohol or drug paraphernalia while the employee is working or while the employee is on the City's premises or operating City vehicles, machinery or equipment, except pursuant to a valid medical prescription or when engaged in approved law enforcement activity. (3) An employee shall notify the City in writing of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after such conviction. The City shall notify the appropriate federal agency of such conviction within 10 days of receiving notice from the employee. PERSONS SUBJECT TO TESTING: Employees and job applicants are subject to testing. No person will be tested for drugs or alcohol under this policy without the person's consent. The City will request or require an individual to undergo drug or alcohol testing only under the circumstances described in this policy. Employees and job applicants are subject to testing under the City's Policy Implementing the Federal Omnibus Transportation Employee Testing Act and Related Regulations if applicable. . CIRCUMSTANCES FOR DRUG OR ALCOHOL TESTING: (1) Job applicants. Job applicants may be requested to undergo drug and alcohol testing after a job offer has been conditionally made and before commencing employment in the position. (2) Reasonable suspicion testing. The City may request or require an employee to undergo drug and alcohol testing if there is a reasonable suspicion that the employee: (a) is under the influence of drugs or alcohol while the employee is working or while the employee is on the City's premises or operating City vehicles, machinery, or equipment; or (b) used, possessed, sold or transferred drugs, alcohol or drug paraphernalia while the employee is working or while the employee is on City premises or operating City vehicles, machinery, or equipment; or (c) has sustained a personal injury as that term is defined in Minnesota Statutes 176.011, Subd. 16, or has caused another person to die or sustain a personal 2 injury; or (d) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident resulting in total property damage exceeding $1,000, as estimated by a department supervisor at the scene of the accident or at the time the accident reported; or (e) has discharged a firearm other than (a) on a target range, or (b) while conducting authorized ballistics tests, or (c) as authorized by Rosemount Police Department rules and regulations concerning dangerous or suffering animals; or has, as determined only by employee's department head, or his/her official designate, or the City Administrator, engaged in an act or omission related to the performance of the job, whether committed on or off duty, that logically requires or justifies such testing, revealed as a clear and compelling necessity by the nature of the incident. (3) Other testing. The City may permit an employee who has requested a drug and alcohol test to undergo testing in accordance with the procedures established by this policy or by State or Federal Law. (4) Treatment program testing. The City may request or require an employee to undergo drug and alcohol testing if the employee has been referred by the City for chemical dependency treatment or evaluation or is participating in a chemical dependency treatment program under an employee benefit plan, in which case the employee may be requested or required to undergo drug or alcohol testing without prior notice during the evaluation or treatment period of up to two years following completion of any prescribed chemical dependency treatment program. REFUSAL TO UNDERGO TESTING.- (1) ESTING. (1) Job applicants: If a job applicant refuses to undergo drug or alcohol testing requested or required by the City, no such test shall be given, and the job applicant shall be deemed to have withdrawn the application for employment. (2) Employees: If any employee refuses to undergo drug or alcohol testing requested or required by the City, no such test shall be given, and the employee is subject to discipline up to and including termination of employment. (3) Refusal on religious ounds: No employee or job applicant who refuses to undergo drug or alcohol testing of a blood sample upon religious grounds shall be deemed to have refused unless the employee or job applicant also refuses to undergo drug or alcohol testing of a urine sample. PROCEDURE FOR TESTING: (1) Notification form: Before requesting an employee or job applicant to undergo drug or alcohol testing, the City shall provide the individual with a form on which to (a) acknowledge that the individual has seen a copy of the City of Rosemount drug and alcohol testing policy, and (b) indicate any over-the-counter or prescription medications that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result, and (c) indicate consent to undergo the drug and alcohol testing. (2) Test sample: The test sample shall be obtained in a private setting, and the procedure for taking the sample shall ensure privacy to employees and job applicants to the extent practicable consistent with preventing tampering with the sample, and may include a witness. The test sample shall be taken on the City's premises or at a medical facility designated by the employer. (3) 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 identified for processing by the licensed testing laboratory. (4) Chain of custody. The City shall use a testing laboratory which has established a reliable chain -of -custody procedure to ensure proper record keeping, handling, labeling, and identification of the samples to be tested. The procedures must require the following: (a) possession of a sample must be traceable to the employee from whom the sample is collected, from the time the sample is collected through the time the sample is delivered to the laboratory; (b) the sample must always be in the possession of, must always be in view of, or must be placed in a secured area by a person authorized to handle the sample; (c) a sample must be accompanied by a written chain -of -custody record; and (d) individuals relinquishing or accepting possession of the sample must record the time the possession of the sample was transferred and must sign and date the chain -of -custody record at the time of transfer. (5) Laboratory. The City shall use the services of a testing laboratory that meets one of the following criteria for drug testing: (a) is certified by the National Institute on Drug Abuse as meeting the mandatory guidelines published at 54 Federal Register 11970 to 11989, April 11, 1988; 4 (b) is accredited by the College of American Pathologists, 325 Waukegan Road, Northfield, Minois, 60093-2750, under the forensic urine drug testing laboratory program; or (c) is licensed to test for drugs by the state of New York, department of health, under Public Health Law, article 5, title V, and rules adopted under that law. For alcohol testing, the laboratory must either be: (i) licensed to test for drugs and alcohol by the state of New York, department of health, under Public Health Law, article 5, title V, and the rules adopted under that law; or (ii) accredited by the College of American Pathologists, 325 Waukegan Road, Northfield, Illinois, 60093-2750, in the laboratory accreditation program. (6) Retention and storage: All samples that produce a positive test result shall be retained and properly stored for at least six months. (7) Test report: The testing laboratory shall prepare a written report indicating the drugs, alcohol, or their metabolites tested for and whether the test produced negative or positive test results. The testing laboratory shall disclose that report to the City within three working days after obtaining the final test results. (8) Notice of test results: Within three working days after receipt of the test result report from the testing laboratory, the City shall inform an employee or job applicant who has undergone drug or alcohol testing in writing of a negative test result on an initial screening test or of a negative or positive test result on a confirmatory test. The City shall also inform an employee or job applicant of the following rights pursuant to Minn. Statutes 181.953: (a) The right to request and receive from the City a copy of the test result report. (b) The right to request within five working days after notice of a positive test result a confirmatory retest of the original sample at the employee's or job applicant's own expense. If a confirmatory retest is conducted in accordance with Minn. Statute 181.953, Subd. 1 by a licensed laboratory at the same threshold detection levels as used in the confirmatory test, and the confirmatory retest does not result in a positive test result the City shall reimburse the employee or job applicant the actual cost of the confirmatory retest in an amount not to exceed $100.00. (c) The right to submit information to the City within three working days after a notice of a positive test result to explain that result. 5 (d) The right of an employee for whom a positive test result on a confirmatory test was the first such result on a drug or alcohol test requested by the City not to be discharged unless the City has first given the employee an opportunity to participate in either a drug or alcohol counseling or rehabilitation program. Participation in a counseling or rehabilitation program will be at the employee's own expense or pursuant to coverage under an employee's benefit plan. The City may determine which type of program is more appropriate for the employee after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency. The employee may be discharged if he/she has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program. Withdrawal from the program before its completion or a positive test result on a confirmatory test after completion of the program will be considered evidence that the employee failed to successfully complete the program. (e) The right to be reinstated with back pay if the outcome of the confirmatory test or requested confirmatory retest is negative. (f) The right not to be discharged, disciplined, discriminated against, or required to be rehabilitated on the basis of medical history information revealed to the City concerning the reliability of, or explanation for, a positive test result unless the employee or job applicant was under an affirmative duty to provide the information before, upon, or after hire. (g) The right to access the information in the employee's personnel file relating to positive test result reports and other information acquired in the drug and alcohol testing process including conclusions drawn from and actions taken based on the reports or other acquired information. (h) The right of an employee or a job applicant, who has received a job offer made contingent on the applicant passing drug and alcohol testing, to not have the offer withdrawn based on a positive test result from an initial screening test that has not been verified by a confirmatory test. ACTIONAFTER TEST.- (1) EST. (1) Job applicants: The appointing authority will not withdraw an offer of employment made contingent on the job applicant passing drug and alcohol testing based on 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 appointing authority will withdraw the contingent offer of employment if the 2 City determines in accordance with the Minnesota Human Rights Act that alcohol or drug usage or abuse (1) prevents the job applicant from performing the essential functions of the job in questions; or (2) constitutes a direct threat to property or the safety of others, or (3) otherwise constitutes a bona fide occupational qualification. (2) Employees: The City will not discharge, discipline, discriminate against, 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 City may do the following: (a) First positive test result: Give the employee an opportunity to participate in either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate. The City will consult with a certified chemical use counselor or physician trained in the diagnosis and treatment of chemical dependency before approving the program. Participation in a counseling or rehabilitation program will be at the employee's own expense or pursuant to coverage under an employee's own benefit plan. If the employee either refuses to participate in the counseling or rehabilitation program or fails to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program, and alcohol or drug abuse prevents the employee from performing the essential functions of the job in question or constitutes a direct threat to property or the safety of others or otherwise constitutes a bona fide occupational qualification, the employee may be discharged from employment. (b) Second positive test result. Where alcohol or drug abuse prevents the employee from performing the essential functions of the job in question or constitutes a direct threat to property or the safety of others or otherwise constitutes a bona fide occupational qualification, the employee will be disciplined, including, but not limited to, discharge from employment. (c) Suspensions and transfers: Notwithstanding any other provisions herein, the City may temporarily suspend the tested employee with pay for up to 90 days or transfer that employee to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest, provided the City believes that it is reasonably necessary to protect the health or safety of the employees, or the public. (d) Other misconduct. Nothing in this policy limits the right of the City to discipline or discharge an employee on grounds other than a positive test result in a confirmatory test, including conviction of any criminal drug statute for a violation occurring in the workplace. 7 DATA PRIVACY.• The City will not disclose the test result 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. RIGHTS OF EMPLOYEES: An employee has a right to offer the City a written explanation of a positive test result on a confirmatory test within three working days after notice of the positive test result, and has a right to request within five working days after notice of a positive test result a confirmatory retest of the original sample at another licensed testing laboratory at the employee's or job applicant's own expense. APPEAL PROCEDURE.- Employees ROCEDURE: Employees may appeal decisions made by the City under this policy through their collective bargaining units. Employees who are not represented by a collective bargaining unit, may appeal decisions through remedies available in the City's Personnel Policy. The City will not retaliate against an employee for pursuing an appeal or other remedies provided in Minn. Stat. 181.956. GOOD FAITH EFFORT.• The City of Rosemount will make a continuing good faith effort to maintain a drug-free workplace through the implementation of its Drug and Alcohol Testing Policy. CONTACT.• The employer designated contact person will coordinate the implementation, direction, and administration of the City's alcohol and controlled substances policy. Employee questions concerning this policy should be directed to the contact person. Susan M. Walsh, Administrative Assistant, Telephone: 322-2002 8