§ 2-425.9. Drug free workplace.

Purpose.

The City is committed to reducing the problems created by drugs and alcohol in the workplace. For that reason, the City requires that employees be free of alcohol and illegal drugs at all times while on duty. Use of illegal drugs, medical cannabis, and/or alcohol can result in:

1.

Harm to the employee's health;

2.

Serious safety hazards for the employee, co-workers, and the citizens we serve.

3.

Reduced productivity and costly mistakes.

The City is fully committed to our drug free workplace policy, which establishes clear guidelines for acceptable and unacceptable employee behavior for everyone in the workplace. The City will not tolerate substance use that violates this policy and the City intends to hold every employee responsible for supporting this policy.

a.

Objectives: The City has an obligation to its employees to take reasonable steps to assure a drug and alcohol free workplace. The City also has an obligation to its citizens and public at large to provide quality services through a policy and program prohibiting alcohol, illegal drugs, medical cannabis, and controlled substances in the workplace.

b.

Policy Statement: The City, in its attempt to achieve the objectives stated above, prohibits the unlawful manufacture and distribution dispensing, possession, or use of alcohol/intoxicants, drugs, medical cannabis, and controlled substances in the workplace. Any employee who violates this policy will be subject to corrective action, which may include termination.

The City of Effingham has the right to expect its employees to report for work fit and able for duty. The City of Effingham will take reasonable measures to maintain a work environment which is free of alcohol and substance abuse, to provide a safe and secure workplace for its employees and the community in which the City operates.

This first portion of this policy applies only to testing for drivers of commercial motor vehicles and employees required to have a commercial driver's license (CDL). The second part of the policy discusses testing for non-CDL drivers.

The City recognizes that alcohol and drug abuse is considered by many to be an illness and encourages its full-time employees, paid on-call firefighters and part-time police officers, to voluntarily utilize the City's Employee Assistance Program before such abuse affects such employee's job performance. No employee shall be disciplined or the subject of adverse employment action for the first instance where such employee notifies the department head that he/she has a problem with drug or alcohol use, and voluntarily seeks assistance prior to initiation of an investigation of suspected drug or alcohol abuse by such employee. Such employee shall be referred by the Insurance/Safety Coordinator or the City Administrator to the City's Employee Assistance Program for confidential counseling and treatment. The Insurance/Safety Coordinator or the City Administrator shall not divulge any information received from such employee who voluntarily seeks the help of the Employee Assistance Program. Such voluntary referrals to the Employee Assistance Program do not relieve such employee from the responsibility to adequately perform his/her job. In addition, voluntary submittal does not eliminate such employee from the requirements to take required drug and alcohol tests as described in this policy.

The purpose of this policy is to provide a drug and alcohol policy for all employees.

Definitions.

For the purpose of this policy, the words and terms defined in this Section shall have the meaning therein given, unless the context otherwise clearly requires.

"Driver" means any person who operates a commercial motor vehicle as defined in 49 CFR Part 382.107. This includes, but is not limited to: full-time, regularly employed drivers; causal, intermittent or occasional drivers; leased drivers and independent, owner-operator contractors who are either directly employed by or under lease to an employer or who operate a commercial motor vehicle at the direction of or with the consent of an employer.

"Employee" means any person employed by the City of Effingham, including but not limited to those persons in a special assignment, part-time, or full-time status, and all levels of management.

"Safety-sensitive function" means any of those on-duty functions set forth in 49 CFR Part 395.2, paragraphs (1) through (7), as well as the following: Confined Space, Trenching, Motorized Equipment, Flagging, and Street Right-of-Way operations.

Prohibitions.

The unlawful manufacture, distribution, dispensation, disposal, possession, or use of a controlled substance, medical cannabis, or alcohol is prohibited on all municipal premises, in any City owned or leased motor vehicle, or other location at which the employee is to perform work. The City of Effingham will not hire or retain any employee who possesses any illegal drug, in any amount. The following will be strictly enforced:

1.

The City of Effingham will maintain a pre-employment screening program designed to prevent hiring anyone who uses any illegal drugs.

2.

No employee will consume any amphetamines/methamphetamines, marijuana, opiates, cocaine, barbiturates, benzodiazepines, methadone, methaqualone, propoxyphene, or phencyclidines (PCP) while on or off duty.

3.

No Department of Public Health registered qualifying patient will use or be under the influence of legally prescribed medical cannabis while on duty.

4.

No driver shall report for work or drive in the course of his employment while impaired by any drug, controlled substance, or with an alcohol breath concentration of .02 or greater. No employee, other than a driver, shall report for work or drive in the course of his employment while impaired by any drug, controlled substance, or with an alcohol breath concentration of .04 or greater.

5.

An employee may use a substance administered by or under direction of a physician who has advised the employee that the substance will not affect the employee's ability to safely operate a motor vehicle or perform his/her job with the exception of any illegal drug.

6.

No driver whose motor senses, sight, hearing, balance, reaction, reflexes or judgment are presumed to be affected or who has consumed any alcohol within four (4) hours, may operate any motor vehicle. No employee, other than a driver, whose motor senses, sight, hearing, balance, reaction, reflexes or judgment are presumed to be affected or who has consumed any alcohol within two (2) hours, may perform his or her job.

7.

Any employee who sells or otherwise dispenses illegal drugs, medical cannabis, or alcohol to others on municipal premises, in or from a City owned or leased motor vehicle, is subject to immediate termination.

8.

An employee may not use a substance administered by or under the direction of a physician not specifically prescribed for him/her.

Drug & Alcohol Testing (Drivers).

Drug Testing.

The City of Effingham will require drug testing in accordance with Federal Motor Carrier Safety Requirements as set forth in Part 40 and as described in this policy. All urine samples shall be split-samples. The "primary sample" shall be at least 30 ml. of urine; the "split sample" shall be at least 15 ml. Failure of the driver to provide that quantity even after a two (2) hour second opportunity following drinking up to 24 oz. of water, will cause the driver to be immediately referred to the Medical Review Officer (MRO) for a medical evaluation to develop pertinent information concerning whether the driver's inability to provide a specimen is genuine or constitutes a refusal to test. The MRO will make a conclusion in writing to the employer. While this process is being accomplished, the driver shall be placed off duty without pay. If the medical conclusion vindicates the employee, the employee shall be compensated in full for the period of leave without pay.

Alcohol Testing.

The City of Effingham will require alcohol testing in accordance with Federal Motor Carrier Safety requirements as set forth in Part 40 and as described in this policy. Two breath tests may be required to determine if a person has a prohibited alcohol concentration. A "screen test" shall be conducted first. Any result less than .02 alcohol concentration is considered a "negative test". If the alcohol concentration is .02 or greater, a second or "confirmation test" must be conducted after a fifteen (15) minute wait. Any test .02 or greater but less than .04 shall cause the driver to immediately be removed from driving or any other safety-sensitive function for at least twenty-four (24) hours. Both tests shall be by an "Evidential Breath Testing" (EBT) device that prints out the results, date, time, a sequential test number, name and serial number of the EBT. The alcohol test must be conducted by a "Breath Alcohol Technician" (BAT) who is trained to operate an EBT device and is proficient in all breath alcohol testing procedures.

Failure of the driver to provide an adequate amount of breath will cause the driver to be immediately referred to the MRO for a medical evaluation to develop pertinent information concerning whether the driver's inability to provide the adequate amount of breath is genuine or constitutes a refusal to test. The MRO will make a conclusion in writing to the employer. While this process is being accomplished, the driver shall be placed off duty without pay. If the medical conclusion vindicates the employee, the employee shall be compensated in full for the period of leave without pay.

All drivers will be required to take and successfully pass urine drug testing and breath alcohol testing as stated in this policy. Refusal to submit to such screenings is considered a positive test. The City will adhere to the following:

1.

Pre-employment: Applicants will be required to take and successfully pass urine drug tests before they can be hired. Refusal to submit to such screenings is considered a positive test. The following information must be obtained on any new driver from previous employers for the past two (2) years: any positive drug test or alcohol test of .04 or greater, including any refusals to be tested. Potential new drivers shall provide the City of Effingham a written release which authorizes the City of Effingham to obtain the driver's past drug and alcohol test results. No driver shall start work while these test results are being secured. Any driver found to have a positive test result in these two (2) years shall cause the employer to further obtain information on the subsequent Substance Abuse Professional's (SAP) evaluation and/or determination under Section 382.605 and determine if there was compliance with Sections 382.309 and 382.311. If not, the applicant cannot be hired until in full compliance.

2.

Reasonable Suspicion: Any driver suspected of drug or alcohol use as a result of reasonable evidence upon reporting to work, during the work day, or upon completion of his day's work activity may be subjected to a reasonable suspicion urine drug or breath alcohol test. Refusal to submit to such screening will be considered a positive test. A reasonable suspicion observation form (Form 17) must be completed and signed by at least one qualified supervisor within twenty-four (24) hours of the observation that led to a reasonable suspicion test.

Random Testing.

1.

All drivers covered by this policy will be included in the random selection pool. The selection will be by computerized random selection generated four (4) times per calendar year. The pool will select fifty percent (50%) each year for drug testing and ten percent (10%) each year for breath alcohol testing per the requirements of Section 382.305 and 49 CFR Part 40. Drug and alcohol draws will be separate.

2.

Notification to the City of Effingham will be by confidential letter to the Insurance/Safety Coordinator or the City Administrator. Drivers to be tested will be notified just prior to the actual test being performed.

3.

Failure of the City of Effingham to accomplish the above requirements in the time allotted will cause them to be out of compliance with the random testing requirements of 49 CFR Part 40.

Post-Accident Testing.

1.

The City of Effingham will require post-accident urine drug and breath alcohol testing of all drivers covered by this policy as required by Section 382.303 and 49 CFR Part 40. In addition, any accident in any vehicle or use of any equipment which results in property damage, or bodily injury, or an injury that could result in a worker's compensation claim, may be subject to urine drug and breath alcohol testing at the discretion of the City Administrator or the employee's supervisor. All accidents must be reported immediately to the driver's supervisor. The supervisor must notify the City Administrator immediately and the Insurance/Safety Coordinator by the next business day. Failure to report an accident shall result in a corrective action.

2.

The post-accident urine drug test shall be conducted as soon as possible, but not later than thirty two (32) hours after the reportable or fatal accident. If the test is not administered, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly completed. If a breath alcohol test is not conducted within two (2) hours, a record shall be prepared and retained stating why. If in eight (8) hours, a breath alcohol test is still not conducted, all attempts shall cease and a complete record made of why it was not accomplished. In addition, the driver shall not consume any alcohol for at least eight (8) hours following an accident or until a breath alcohol test has been accomplished.

3.

As a condition of employment, all drivers shall provide the necessary authorization for obtaining medical records and reports that would indicate if a controlled substance or alcohol was in the employee's system and the level present. Such authorization is to be used when a driver is seriously injured and cannot provide a urine specimen or breath alcohol test at the time of the accident.

4.

The City of Effingham shall provide the employee with sufficient procedures so that the employee can meet the requirements of this policy and comply with all provisions of 49 CFR Part 40.

5.

Failure of the driver to be readily available for a urine drug or breath alcohol test or refusal to give a urine or breath sample when the driver has been involved in an accident, except for a driver who meets the conditions of this policy shall be considered a refusal to take a test and a positive test result.

6.

A driver who has complied with all the recommendations of the Substance Abuse Professional after a positive breath alcohol or urine drug test, must successfully pass a urine drug or breath alcohol test prior to returning-to-duty as stated in 382.309.

7.

The MRO will subject a driver to at least six (6) unannounced urine drug or breath alcohol test in the first twelve (12) months after return-to-duty per 382.311.

Drug & Alcohol Testing (Employees Other Than Drivers).

Drug Testing.

The City of Effingham will require drug testing as described in this policy. The drugs prohibited are the same as for drivers as set forth above, with the exception of legally prescribed medical cannabis as indicated below. All urine samples shall be split-samples. The "primary sample" shall be at least 30 ml. of urine; the "split-sample" shall be at least 15 ml. Failure of the employee to provide that quantity even after a two (2) hour second opportunity following drinking up to 24 oz. of water, will cause the employee to be immediately referred to the Medical Review Officer (MRO) for a medical evaluation to develop pertinent information concerning whether the employee's inability to provide a specimen is genuine or constitutes a refusal to test. The MRO will make a conclusion in writing to the employer. While this process is being accomplished, the employee shall be placed off duty without pay. If the medical conclusion vindicates the employee, the employee shall be compensated in full for the period of leave without pay.

Alcohol Testing.

The City of Effingham will require alcohol testing as described in this policy. Two (2) breath tests may be required to determine if a person has a prohibited alcohol concentration. A "screen test" shall be conducted first. Any result less than .04 alcohol concentration is considered a "negative test". If the alcohol concentration is .04 or greater, a second or "confirmation test" must be conducted after a fifteen (15) minute wait. Both tests shall be by an "Evidential Breath Testing" (EBT) device that prints out the results, date, time, a sequential test number, name and serial number of the EBT. The alcohol test must be conducted by a "Breath Alcohol Technician" (BAT) who is trained to operate an EBT device and is proficient in all breath alcohol testing procedures. In the event it is not possible to conduct a breath alcohol test using an EBT, a blood or urine alcohol test will be conducted.

Failure of the employee to provide an adequate amount of breath will cause the employee to immediately be referred to the MRO for medical evaluation to develop pertinent information concerning whether the employee's inability to provide the adequate amount of breath is genuine or constitutes a refusal to test. The MRO will make a conclusion in writing to the employer. While this process is being accomplished, the employee shall be placed off duty without pay.

All employees will be required to take and successfully pass urine drug testing and breath alcohol testing as stated in this policy, with the exception of legally prescribed medical cannabis as indicated below. Refusal to submit to such screening is considered a positive test. The City will adhere to the following:

1.

Pre-employment: Applicants applying for part-time or full-time status may be required to take and successfully pass urine drug tests for the presence of illegal drugs before they can be hired. An applicant who is a verified qualified patient with the Department of Public Health shall be considered for employment upon receipt of a valid Registry Identification Card. No applicant shall start work while these test results are being obtained.

2.

Reasonable Suspicion: Any employee suspected of drug, medical cannabis, or alcohol use as a result of reasonable evidence upon reporting to work, during the work day, or upon completion of his day's work activity may be subjected to a reasonable suspicion urine drug or breath alcohol test. Refusal to submit to such a screening will be considered a positive test. A reasonable suspicion observation form (Form #17) must be completed and signed by at least one qualified supervisor within twenty-four (24) hours of the observation that led to a reasonable suspicion test.

Post-Accident Testing.

1.

The City of Effingham may require post-accident urine drug and breath alcohol testing of all employees covered by this policy at the discretion of the supervisor and the City Administrator.

2.

All accidents involving property damage, bodily injury, or injury that could result in a worker's compensation claim must be reported immediately to the employee's supervisor. The supervisor must notify the City Administrator immediately after the accident, and the Insurance/Safety Coordinator by the next business day. A post-accident urine drug test should be conducted as soon as possible, but not later than thirty-two (32) hours after the accident. If the test is not administered, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly completed. If a breath alcohol test is not conducted within two (2) hours, a record shall be prepared and retained stating why. If in eight (8) hours a breath alcohol test is still not conducted, all attempts shall cease and a complete record made of why it was not accomplished. In addition, the employee shall not consume any alcohol for at least eight (8) hours following an accident or until a breath alcohol test has been accomplished. Failure to report an accident shall result in a corrective action.

3.

As a condition of employment, all employees shall provide the necessary authorization for obtaining medical records and reports that would indicate if a controlled substance or alcohol was in the employee's system and the level present. Such authorization is to be used for an employee seriously injured and cannot provide a urine specimen or breath alcohol test at the time of the accident.

4.

The City of Effingham shall provide the employee with sufficient procedures so that the employee can meet the requirements of this policy.

5.

Failure of the employee to be readily available for a urine drug or breath alcohol test or refusal to give a urine or breath sample when the employee has been involved in an accident, except for an employee who meets the conditions of this policy, shall be considered a refusal to take a test or a positive test result.

Return-to-Duty Testing.

An employee who has complied with all the recommendations of the Substance Abuse Professional must successfully pass a urine drug or breath alcohol test prior to return-to-duty.

Follow-up Testing.

The MRO may subject an employee to at least six (6) unannounced urine drug or breath alcohol tests in the first twelve (12) months after return-to-duty.

Test Results.

Drug Test Results.

Test results will be reviewed to determine whether there is any indication of controlled substance use.

1.

The test results will be released to and reviewed by a Medical Review Officer (MRO). If there is any evidence of a positive result, the MRO will give the person tested an opportunity to discuss the results and provide documentation of legally prescribed medication.

2.

The Medical Review Officer will then release the results to the City of Effingham's City Administrator and Insurance/Safety Coordinator, who will maintain them in a secure location with controlled access.

Alcohol Test Results.

1.

The test results for drivers shall be provided on forms established by Subpart C 40.59 Appendix A. Copy 1 will be retained by the Breath Alcohol Technician (BAT), copy 2 shall go to the driver, and copy 3 shall be transmitted to the City Administrator. Test results for employees, other than drivers, covered under this policy shall be provided on a form supplied by the institution performing the EBT. Copy 1 will be retained by the Breath Alcohol Technician (BAT), copy 2 shall go to the employee, and copy 3 shall be transmitted to the City Administrator.

General.

1.

The test results from all drug and alcohol tests will become a part of the employee's file which shall be in a secured location with controlled access and retained as specified in this policy.

2.

The results will not be released to any unauthorized party without written consent of the employee, except as described in this policy. Every driver, upon termination, is required in writing to permit the release of their urine drug and breath alcohol test results for the last two (2) years to any future employer. Every employer is required, upon the receipt of a written request of a driver, to provide copies of all his/her urine drug and breath alcohol test results promptly to any other possible employer at no charge.

3.

This policy may require more than that required by 49 CFR Part 40, Part 382, and Part 395 and supersedes requirements of 49 CFR Part 40, Part 382, and Part 395 where applicable.

Employee Training Program.

Training will be offered by the City of Effingham to provide educational information concerning the effects and consequences of drug and alcohol use on personal health, safety and work environment as provided in Section 382.601.

1.

All full-time employees will be required to take at least one (1) hour of training each year on substance abuse and alcohol use, which includes the City's policies and procedures, and sign a form certifying their attendance.

2.

Written notice will be given when training is available.

Laws & Regulations.

1.

The City of Effingham will comply with all federal, state and local laws and regulations concerning any violations of criminal drug, medical cannabis, and alcohol use in the workplace.

2.

All records will be retained at a minimum as listed in this policy.

3.

An employee is entitled, upon written request, to obtain copies of any records pertaining to his use of drugs or alcohol, and test results. Access shall not be contingent upon payment for records other than those requested.

4.

Records shall be made available to a prospective or subsequent employer upon receipt of a written request from all employees or former employees.

5.

The City of Effingham may disclose information required to be maintained under this policy on an employee to the decision maker in a lawsuit, grievance, or other proceedings initiated by or on behalf of that employee and arising from the results of an alcohol or controlled substance test required by this policy, or from the employer's determination that the employee engaged in conduct prohibited by this policy. (Including but not limited to worker's compensation, unemployment compensation, or other proceeding related to benefits sought by the employee.)

Corrective Action.

1.

An employee who violates this policy will be advised by the City Administrator or his/her designee of resources available to the employee in evaluating and resolving problems associated with the use of drugs or alcohol.

2.

Any employee who tests positive for illegal drugs on a random test will be allowed one opportunity to undergo rehabilitation at a facility/program approved by the City and shall authorize the provider to release information to the City about the employee's compliance/progress. No employee will be allowed more than three (3) months off work (without pay) as necessary to complete whatever treatment is recommended by the provider. Failure to comply with all program requirements and/or after-care requirements will result in discharge. A second positive test, random or otherwise, during an employee's employment, will result in discharge.

3.

Any employee who tests positive for any amount of illegal drugs or alcohol at a level of .02% or greater in connection with a reasonable suspicion or post-accident/post-injury test will be terminated.

4.

Prior to being eligible for a return-to-duty and the associated return to duty testing after a positive random test, an employee must be evaluated by a Substance Abuse Professional, who shall set up any assistance needed. When the employee has complied with all the recommendations of the Substance Abuse Professional, the employee must request the results of the evaluation and notification of release be given in writing to the Medical Review Officer (MRO).

5.

The MRO shall then require such employee to undergo at least six (6) unannounced urine drug tests or breath alcohol tests in the first twelve (12) months after return to duty. Follow-up testing shall not extend beyond sixty (60) months.

6.

An investigation will be done by the City Administrator or his/her designee concerning failure to report an accident as described in this policy. After an investigation has been conducted, if it is determined that an employee or his supervisor was negligent in reporting an accident, corrective action shall be taken.

7.

An employee who is unable to return to duty within three (3) months may be subject to termination.

Employee Assistance Program/Responsibility of Cost.

The City of Effingham shall provide an Employee Assistance Program for full-time employees and such employee's immediate family members who live in the same household in accordance with the following guidelines.

Each full-time employee will receive a list of professionals he or she may choose to use for rehabilitation. This list is only provided as a courtesy, such employee may use a qualified professional of his or her own choosing. If such employee does not utilize the Employee Assistance Program provided by the City, such employee will be responsible for checking insurance coverage and paying any charges not covered.

1.

The City of Effingham will pay for drug and alcohol testing that is required for pre-employment, random, periodic, post-accident, reasonable cause, return-to-duty, and follow-up testing.

2.

The City of Effingham will pay any fees in conjunction with services rendered by the Medical Review Officer as described in this policy.

3.

The City of Effingham will pay the Substance Abuse Professional's fee for the initial evaluation after a positive drug or alcohol test.

4.

The City of Effingham will pay for sessions provided through the Employee Assistance Program provider. This service is for full-time active employees and paid on-call firefighters and part-time police officers, and will not be available to terminated employees.

5.

The employee will pay for all treatment recommended by the Substance Abuse Professional that is necessary for his rehabilitation, over and above that provided in the Employee Assistance Program. All employees covered by the City's health insurance may submit claims to the City's health insurance provider to help off-set his cost incurred during rehabilitation.

6.

The employee will be responsible for any travel expenses incurred as a part of rehabilitation.

7.

After the employee has complied with all the recommendations of the Substance Abuse Professional and has returned to work, the City of Effingham will pay for follow-up drug and alcohol testing.

Paid Leave and Non-Paid Leave.

1.

Employees will be required to exhaust all sick leave, vacation, personal days, and compensatory time for the time away from work for rehabilitation. If the employee qualifies for leave under the Family and Medical Leave Act, the employee must exhaust all the paid time referred to in the previous sentence before continuing the leave on an unpaid basis with the maximum total (paid and unpaid) leave time being twelve (12) weeks.

2.

If an employee is on non-paid leave, there shall be no accrual of service time, vacation, holidays, sick leave, or other paid leave during such non-paid leave.

(Ord. No. 72-2011, § I(Exh. A), 12-20-2011; Ord. No. 3-2014, § IV, 1-21-2014)