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5.14. SR 12-18-1995I � aRi ITEM 5.14. MEMORANDUM verTO: Mayor and City Council FROM: Sandra Thackeray - City Clerk DATE: December 18, 1995 SUBJECT: Drug and Alcohol Testing Policy INTRODUCTION: The Council currently reviewed a draft Drug and Alcohol Policy for Driver's of Commercial Vehicles. No action was taken on this policy due to the issue of discipline. The discipline issue relates to drivers that have tested positive a second time within a five year time period. BACKGROUND: • The policy that was reviewed by the Council is consistent with the city's personnel policy. The City Attorney felt that there may be instances where a second positive test does not warrant dismissal of the driver. Therefore, he suggested following the personnel policy which would leave the Council some discretion in its discipline of a second offense. After reviewing policies from the Association of Minnesota Counties, Hennepin County, Brooklyn Park, and St. Paul, it was found that three out of four of these policies were in concurrence with the City of Elk River's policy in terms of discipline for a second positive test. Three out of four of these policies suggested "discipline up to and including termination" for drivers who tested positive a second time. The fourth policy, which did not concur with the other three policies, handled its discipline of drivers who tested positive in the following manner: "A driver who tested positive for the first time would be suspended without pay for three days. A driver who tested positive a second time would be suspended without pay for ten days, any driver who tested positive for a third time would be discharged." The draft drug and alcohol policy is attached for your convenience. Please refer to Section IX, Number 5, page 11, of the policy. Section number five is red -lined to show the revision as requested by the Council. This revision states that a driver shall be terminated from employment when the driver has a subsequent violation of any prohibited alcohol or controlled substance 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • (612) 441 -7420 • Fax: (612) 441 -7425 activity within five years of the first offense. The draft policy prior to this revision allowed for the City Council to take whatever disciplinary action it deemed appropriate, including termination of employment; therefore, termination could be a possibility for a second offense. The City Attorney indicated that the Drug and Alcohol Policy will be independent of the personnel policy, therefore, it is not necessary to revise the personnel policy at this time. The City Attorney will be present at this meeting to answer any questions the Council may have regarding this issue. The city's drug and alcohol policy must be adopted prior to January 1, 1996. ACTION REQUESTED: Council motion to adopt a Drug and Alcohol Policy for Drivers of Commercial Vehicles for the City of Elk River with one of the suggested language changes offered below. Suggested language for Section IX, Number 5 (page 11). iA. When a driver has a subsequent violation of any prohibited alcohol or controlled substance activity within five years of the first offense, the appointing authority may take whatever disciplinary action that it deems appropriate, including termination of employment as indicated in Section 218.08 of the Elk River City Code, or B. when a driver has a subsequent violation of any prohibited alcohol or controlled substance activity within five years of the first offense, the driver shall be terminated, or C. a driver who has a violation of any prohibited alcohol or controlled substance, shall be subject to the following disciplinary action: 1. A driver who tests positive for the first time shall be suspended without pay for three days. 2. A driver who tests positive a second time would be suspended without pay for ten days. 3. A driver who tests positive for a third time will be discharged from employment with the City of Elk River. • s:council /drugpol • CITTOE ELK 1212E • • • Table of Contents Drug and Alcohol Policy for Drivers of Commercial Vehicles Policy Statement Applicability Definitions Circumstances for Drug and Alcohol Testing Pre - employment Testing Reasonable Suspicion Testing City's Determination of Reasonable Suspicion Trained Supervisor of Driver Prompt Administration of Test Alcohol Testing Post- accident Drivers Tested Alcohol Tests Controlled Substance Tests Readily Available Post - Accident Information Return -to -duty Testing 1 1 1 4 4 5 5 5 5 5 5 5 5 6 6 6 G� Follow -Up Testing 6 Follow -up Alcohol and/or Controlled Substance Test 6 Timing of Follow -up to Alcohol Test 6 Random Testing 7 Selection of Drivers 7 Number of Drivers Selected 7 Testing Immediacy 7 Timing of Test 7 Controlled Substance Testing 7 Driver Unable to Provide Appropriate Quantity of Urine Procedures for Ensuring Quality and Identification of Sample Results Drug Test Results MRO Unable to Contact Driver MRO May Verify Positive Test Confirmatory Retest Alcohol Testing i 7 8 8 8 9 9 0 Licensed Testing Laboratory 10 0 Prohibited Drug and Alcohol Related Conduct 10 Consequences To Drivers Engaging in Prohibited Conduct 10 Refusal to Undergo Testing and Consequences of Refusal 12 Right to Refuse 12 Applicant Refusal 12 Driver Refusal 12 Driver /Applicant Rights 12 Request for Confirmatory Retest 12 Results of Negative Retest 13 Copy of Test Result 13 Discipline 13 Persons in Violation 13 City's Right to Discipline 13 Appeals Procedure 13 Non - Veteran Drivers 13 Veteran Drivers 13 Notices of Appeal 13 Confidentiality of Test Results 13 Policy Modification 14 Alcohol and Controlled Substances Contact 14 Acknowledgement of Receipt 15 Appendix A - Effects of Drugs and Alcohol s:\fbrms\tocdrug.doc ii • • CITY OF ELK RIVER EMPLOYEE DRUG AND ALCOHOL POLICY FOR DRIVERS OF COMMERCIAL VEHICLES 11/17/95 I. POLICY STATEMENT The abuse of drugs and alcohol is a nationwide problem which affects persons of every age, race and gender. The city of Elk River recognizes that work performance is affected and safety problems are created when drivers use or abuse illegal drugs and/or alcohol. The city of Elk River wishes to provide and maintain a safe, drug and alcohol free workplace. The city of Elk River has established the following policy on drugs and alcohol with drug and alcohol testing provisions mandated by the Omnibus Transportation Employee Testing Act of 1991. II. APPLICABILITY 1. The Omnibus Transportation Employee Testing Act requires that all drivers whose job duties include operating a commercial motor vehicle and who are required to hold a commercial driver's license shall be subject to drug and alcohol testing. 2. All applicants, including persons currently employed by the city of Elk River, who apply for a position where job duties include operating commercial motor vehicles (CMV) will be required to take a drug test if a job offer is made. 3. Any driver found to be in violation of this policy is subject to discipline up to and including termination of employment. III. DEFINITIONS 1. Accident... means an occurrence involving a CMV operating on a public road which results in: A. a fatality; or B. bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or C. 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. page 1 2. Alcohol... means the intoxicating agent in beverage alcohol, ethyl alcohol or • other low molecular weight alcohol including methyl or isopropyl alcohol. 3. Appointing Authority... The City Council 4. Breath Alcohol Technician (BAT) ... means an individual who instructs and assists individuals in the alcohol testing process and operates an Evidential Breath Testing Device (EBT). 5. City ... means the city of Elk River. 6. Commercial Motor Vehicle (CMV)... means a motor vehicle or combination of motor vehicles used to transport passengers or property if the motor vehicle meets any one of the following criteria: A. Has a gross combination rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or B. has a gross vehicle weight rating of 26,001 or more pounds; or C. is designed to transport 16 or more passengers including the driver; or D. 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. 7. Confirmation Test or Confirmatory Test... In drug testing, a Confirmation Test or Confirmatory Test is a second analytical procedure to identify the presence of a specific drug or metabolite that is independent of the screening test and that uses a different technique and chemical principle from that of the screening test in order to ensure reliability and accuracy. (Gas chromatography /mass spectrometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine.) In alcohol testing, a Confirmation Test or Confirmatory Test is a second test, following a screening test with a result .02 or greater, that provides quantitative data of alcohol concentration. 8. Confirmatory Retest ... In drug testing, a third testing of the split specimen when the confirmatory test produces a positive result. A confirmatory retest is done at the request and expense of the driver. 9. Controlled Substance... has the meaning assigned by 21 U.S.C. 802 and includes all substances listed on Schedules 1 -5 as they may be reviewed from time to time (21 C.F.R. Part 1308). - Drivers will be tested for marijuana. (THC metabolite), cocaine, amphetamines, opiates (including heroin) and phencyclidine (PCP). Is page 2 10. DHHS ... The Department of Health and Human Services or any designee of • the secretary, Department of Health and Human Services. 11. Driver ... An employee of the City who drives a CMV or performs other safety - sensitive functions on a CMV as part of his or her employment. Employees of the City who do not drive a CMV or perform other safety- sensitive functions on a CMV are not employees for purposes of this Policy. 12. Dru ...means any substance (other than alcohol) that is a controlled substance as defined in this section and 49 C.F.R. Part 40. 13. Evidential Breath Testing Device (EBT) ... means an EBT approved by the National Highway Traffic Safety Administration (NHSA) for the evidential testing of breath. 14. FHWA ... The Federal Highway Administration. 15. Medical Review Officer (MRO) ... means 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 an individual's confirmed positive test result together with his or her medical history and any other relevant biomedical information. • 16. Performing (a safety- sensitive function) ... a driver is considered to be performing a safety - sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety- sensitive function. 17. Random Selection... means a mechanism for selection of drivers for testing where each driver has an equal chance of being tested each time selections are made. 18. 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 specific, contemporaneous, and articulable observation of at least one (1) supervisor or official who has received training in the identification of behaviors indicative of drug and alcohol use. 19. Refuse to Submit (to an alcohol or controlled substance test) ... means that a driver: A. Fails to provide adequate breath for testing without a va.lid medical explanation after he or she has received notice of the requirement for breath testing; B. 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; or page 3 C. Engages in conduct that clearly obstructs the testing process. • D. Does not remain readily available for post- accident testing as required by federal law and this policy. 20. Safety Sensitive Function... means all time from the time a driver begins to work or is required to be in readiness to work until the time he /she is relieved from work and all responsibility for performing work and includes the following: A. All time at a carrier or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from the duty by the motor carrier. B. All time inspecting equipment as required by the Federal Motor Carrier Safety Regulations, or otherwise inspecting, servicing, or conditioning a CMV at any time. C. All time spent at the driving controls of a CMV. D. All time, other than driving time, in or upon any CMV except time spent resting in a sleeper berth. E. All time loading or unloading a vehicle, supervising, or assisting in the • loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded. F. All time spent performing the driver requirements on the Federal Motor Carrier Safety Regulations relating to accidents. G. All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle. 21. Substance Abuse Professional (SAP) ... means a licensed physician 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. IV. CIRCUMSTANCES FOR DRUG AND ALCOHOL TESTING 1. Pre - employment Testing. All job applicants, including persons currently employed by the City, applying for a job where duties include operating the City CMV's are required to undergo testing for drugs if a job offer is made. The job offer is contingent pa-.e 4 upon a negative drug test report and the applicant's written agreement authorizing former employers to release to the City, all information on the applicant's positive drug test results and refusals to be tested within the preceding two years. This information must be received within 14 days of the request. 2. Reasonable Suspicion Testing A. City's Determination of Reasonable Suspicion The City shall require a driver to submit to an alcohol or drug test when the supervisor has reasonable suspicion to believe that the driver has violated the provisions of federal law concerning alcohol or controlled substance. The City's determination that reasonable suspicion exists to require the driver to undergo an alcohol or drug test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver. A driver may only be required to undergo reasonable suspicion testing while performing safety- sensitive functions, just before performing safety- sensitive functions, or just after ceasing to perform safety - sensitive functions. B. Trained Supervisor of Driver. The required observations for alcohol and/or controlled substance reasonable suspicion testing shall be made by a supervisor of a driver of the City who is trained in accordance with federal law. C. Prompt Administration of Test If an alcohol test required b q Y federal law and this policy is not administered within two (2) 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 the alcohol test required by federal law and this policy is not administered within eight (8) hours following the determination of reasonable suspicion, all attempts to conduct the test shall cease and the reasons for not administering the alcohol test shall be documented. D. Alcohol Testing. Alcohol testing is authorized only if the observations required are made during, just preceding, or just after the period of the work day that the driver is required to be in compliance with requirements of this policy requiring the use of alcohol. 3. Post - accident A. Drivers Tested. A post- accident alcohol and drug test shall be performed on any driver who performed safety- sensitive functions with respect to a CMV involved in an accident which resulted in the loss of human life or who received a moving traffic violation in relation to an accident. B. Alcohol Tests. The driver must provide an alcohol test sample as soon as practicable after the occurrence of the accident. If the driver does not receive the test within two (2) hours of the accident, the reasons shall be documented. After eight (8) hours, all attempts to conduct the alcohol test page 5 shall cease and the reasons shall be documented. The driver is prohibited from using alcohol for eight (8) hours following the accident or until the driver has undergone a post- accident alcohol test, whichever comes first. C. Controlled Substance Tests. The driver must provide a urine sample for controlled substances testing as soon as practicable after the accident. After thirty -two (32) hours, all attempts to conduct the test shall cease and the reasons shall be documented. D. Readily Available. A driver who is subject to post- accident testing shall remain readily available for such testing or may be deemed by the City to have refused to submit to testing. Nothing in this section shall be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care. E. Post Accident Information. The City shall provide drivers with necessary post- accident information, procedures and instructions, prior to the drivers operating a commercial motor vehicle, so that drivers will be able to comply with the requirements of this section. 4. Return -to -duty Testing A driver found to have violated this policy shall not return to the performance of safety- sensitive functions until a return -to -duty test has been taken which results in a finding of an alcohol concentration of less than 0.02 and/or a negative finding for controlled substances. Timing of return to duty testing shall be determined by the City and/or the SAP. 5. Follow -up Testing A. Follow -up Alcohol and /or Controlled Substance Test. Following a determination by a SAP that a driver is in need of assistance in resolving problems with alcohol abuse and/or controlled substances use, a driver shall be subject to unannounced follow -up alcohol and/or controlled substances testing as directed by the SAP. Follow -up testing shall occur at least six (6) times during the first 12 months following the return -to -duty and shall not continue beyond 60 months from the return -to -duty. The driver shall be responsible for all costs associated with follow -up testing. B. 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, or just after the driver has ceased performing such safety- sensitive functions or while the driver is in a state of readiness to drive. • page 6 0 6. Random Testing A. Selection of Drivers. The selection of- drivers for random alcohol and controlled substance testing shall be made by a scientifically valid method, such as a random number table or a computer -based random number generator that is matched with a driver's identification or social security number. Under the selection process used, each driver shall have an equal chance of being tested each time selections are made. B. Number of Drivers Selected For alcohol testing the City shall randomly select a sufficient number of drivers during each calendar year to equal an annual rate of not less than twenty -five percent (25 %) of drivers. For controlled substance testing, the City shall randomly select a sufficient number of drivers to equal an annual rate of not less that fifty percent (50 %) of the drivers. If the required percentage of drivers to be tested is changed by the FHWA, the City will use the lowest percentage allowed. Drivers may be selected for more than one test per year. C. Testing Immediacy The City shall require that each driver who is notified of selection for random alcohol and/or controlled substance testing proceed to the test site immediately; provided, however, that if the driver is performing a safety- sensitive function at the time of notification, the City shall ensure that the driver ceases to perform the safety- sensitive function and proceeds to the testing site as soon as possible. D. Timing of Test. A driver shall only be tested for alcohol while the driver is performing safety- sensitive functions, just before the driver is to perform safety- sensitive functions, or just after the driver has ceased performing such safety sensitive functions, or while the driver is in a state of readiness to drive. V. CONTROLLED SUBSTANCE TESTING Controlled Substances Testing is conducted by analyzing a driver's urine specimen. Split urine samples will be collected according to FHWA regulations. The driver 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. 1. Driver Unable to Provide Appropriate Quantity of Urine If the driver is unable to provide the appropriate quantity of urine, the collection site person shall instruct the driver 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 driver is still unable to provide a complete sample, the testing shall be discontinued and the City notified. The MRO shall refer the driver for a medical evaluation to determine if the driver's inability to provide a specimen is genuine or constitutes a refusal to test. page 7 2. Procedures For Ensuring Quality and Identification of Sample • Results. Immediately after the specimen is collected, the correction site person shall measure the temperature of the specimen. The time from urination to temperature measure is critical and in no case shall exceed four (4) minutes. A specimen temperature outside the normal range constitutes a reason to believe that the individual has altered or substituted the specimen. In such case, the driver may volunteer to have his or her oral temperature taken to provide evidence to counter the reason to believe the individual may have altered or substituted the specimen. Immediately after the specimen is collected, the collection site person shall also inspect the specimen to determine its color and look for any signs of contaminants. Any unusual finding shall be noted on the urine custody and control form. Whenever there is reason to believe that a driver has altered or substituted the specimen, a second specimen shall be obtained as soon as possible under the direct observation of a same gender collection site person. Both the driver and the collection site person shall keep the specimen in view at all times prior to its being sealed and labeled. The specimen shall be sealed and labeled in the presence of the driver. The collection site person shall place securely on the bottle an identification label which contains the date, the individual specimen number, and any other relevant identifying information. The driver shall initial the identification label on the specimen bottle for the purpose of certifying that it is the . specimen collected from him or her. The collection site person shall enter on the drug testing custody and control form all information identifying the specimen. The collection site person shall sign the drug testing custody and control form certifying that the collection was accomplished according to the applicable federal requirements. If the initial screening conducted by the laboratory yields a positive result, the result shall be confirmed using gas chromatography /mass spectrometry (GC/MS). 3. Drug Test Results. 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 driver an opportunity to discuss the test result. The MRO will contact the driver directly, on a confidential basis, to determine whether the person wishes to discuss the positive test result. The MRO must review any medical records supplied by a driver to determine if a confirmed positive test is the result of the driver having taken legally prescribed medication. 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. A. MRO Unable to Contact Driver. If after making reasonable efforts • and documenting these efforts, the MRO is unable to reach the driver directly, the MRO must contact the designated City contact person, who shall direct the driver to contact the MRO. If the City contact person is unable to page 8 • contact the driver, the driver will be placed on a temporary medically unqualified status or medical leave. B. M_ RO May Verify Positive Test The MRO may verify a test positive without having communicated directly with the driver about the test results under the following circumstances: i. The driver expressly declines the opportunity to discuss the test results. ii. The driver has not contacted the MRO within five days of being instructed to do so by the City. If a test is verified under this circumstance, the driver may present information to the MRO documenting that serious illness, injury or other circumstances unavoidably prevented the driver from contacting the MRO. 4. Confirmatory Retest: The MRO shall notify each driver who has a confirmed positive test that the driver has 72 hours in which to request a test of the split specimen at the driver's expense. The driver is responsible for all costs associated with the confirmatory retest unless results are negative. VI. ALCOHOL TESTING Alcohol tests shall be 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. An individually- sealed mouthpiece shall be opened in view of the driver and used for the test. The driver will be required to blow forcefully into the mouthpiece for at least 6 seconds or until the EBT indicates that an adequate amount of breath has been obtained. The BAT will ensure that the identification number of the test is correctly recorded, either using the safeguards provided by the equipment or requiring the driver to read the sequential test number displayed on the EBT and recording the displayed result, test number, testing device, serial number of the testing device and time. If the result of the screening test is an alcohol concentration of 0.02 or greater, a confirmation test shall be performed pursuant to 49 C.F.R. Part 40.65. If a 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. page 9 VII. LICENSED TESTING LABORATORY The testing laboratory shall be Medtox Laboratories, Inc., 402 West County Road D., St. Paul, Minnesota 55112, 800 - 832 -3244, 612 - 636 -7466, which is a lab certified to perform controlled substance testing according to DHHS regulations. VIII. PROHIBITED DRUG AND ALCOHOL RELATED CONDUCT The following alcohol and controlled substance - related activities are prohibited by the FHWA's drug and alcohol rules for drivers of CMV's: 1. Reporting for duty or remaining on duty to perform safety- sensitive functions while having an alcohol concentration of 0.04 or greater. 2. Being on duty or operating a CMV while the driver possesses alcohol, unless the alcohol is manifested and transported as a part of a shipment. This includes the possession of medicines containing alcohol (prescription or over - the - counter), unless the packaging seal is unbroken. 3. Using alcohol while performing safety- sensitive functions. 4. Performing safety- sensitive functions within four (4) hours after using alcohol. 5. When required to take a post- accident test, using alcohol within eight hours following the accident or prior to undergoing a post- accident alcohol test, whichever comes first. 6. Refusing to submit to an alcohol or controlled substance test required by post- accident, random, reasonable suspicion, or follow -up testing requirements. 7. Reporting for duty or remaining on duty, requiring the performance of safety - sensitive functions, when the driver uses any controlled substance, except when instructed by a physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a CMV. 8. Reporting for duty, remaining on duty or performing a safety- sensitive function, if the driver tests positive for controlled substances. • IX. CONSEQUENCES TO DRIVERS ENGAGING IN PROHIBITED CONDUCT Drivers who have engaged in prohibited conduct are subject to the following • consequences: page 10 • 1. Drivers shall not be permitted to perform safety - sensitive functions 2. Drivers 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. A driver who engages in a prohibited alcohol or controlled substance activity and receives a verified positive drug or alcohol test result, on the first occurrence, may be subject to disciplinary action as indicated in the City's personnel policy, Section 218.08 (6), of the Elk River City Code, but will not be subject to discharge unless: A. the driver refuses to meet with a substance abuse professional for the purpose of an evaluation for alcohol /controlled substance use /abuse and recommendations for an educational, counseling or treatment program; or B. the driver fails to enter the recommended program, or fails to successfully complete the program; or C. the driver fails a return -to -duty alcohol and controlled substance test at the successful completion of the recommended program or subsequent unannounced follow -up alcohol and controlled substance testing. 4. A driver who engages in a prohibited alcohol or controlled substance activity and receives a positive drug or alcohol test will be evaluated by a substance abuse professional (SAP) who will determine what assistance, if any, the driver needs in resolving problems associated with alcohol misuse and controlled substances use. If that evaluation determines that the driver has a chemical dependency or abuse problem, the SAP will recommend will give the driver an opportunity to participate in an appropriate program as identified at the driver's own expense or pursuant to coverage under a driver benefit plan. In such case, the driver may use accumulated vacation or sick leave. If no vacation or sick leave is available, the driver will be placed on an unpaid medical leave of absence. 5. When a driver has a subsequent violation of any prohibited alcohol or controlled substance activity within five years of the first offense, the appoifitilig atitherrity may take whatever- &eiplinary aetien that it 4eems appropriate, ineludifig ter-mination of employment, as in4ieated in Seetien 218.08 'ter- Ct- Cle_driver. shall be Terminated from employment. 6. Each driver 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 driver has followed the rehabilitation program prescribed. If a driver either refuses to participate in a rehabilitation program specified by the SAP or fails to successfully complete the program as determined by the SAP, the appointing authority may take whatever disciplinary action, including termination of employment, that it deems appropriate, as indicated in Section 218.08 (6), of the Elk River City Code. page 1114- 7. Before a driver 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 than 0.02 if the conduct involved alcohol, or a controlled substance test with a verified negative result if the conduct involved controlled substance use. If as a result of violation of this policy the driver cannot return to work for an undetermined period of time, the driver may use accumulated vacation or sick leave. If no vacation or sick leave is available, the driver will be placed on an unpaid medical leave of absence. 8. The driver shall also be subject to unannounced follow -up alcohol and controlled substance testing. 9. In the event of an alcohol test result over 0.02 percent but less than 0.04 percent, a driver shall not be permitted to perform safety sensitive functions for not less than 24 hours. X. REFUSAL TO UNDERGO TESTING AND CONSEQUENCES OF REFUSAL 1. Right to ,efuse ... All applicants and drivers have the right to refuse to undergo drug and alcohol testing. If an individual refuses to undergo drug and alcohol testing required by this policy, no such test shall be given. 2. Applicant RefusaL.An applicant who refuses to take a drug test shall be disqualified from further consideration for the conditionally offered position. 3. Driver Refusal ... A driver refusing to take a drug /alcohol test required by +, this policy shall not be permitted to perform safety- sensitive functions and will be T considered insubordinate and subject to disciplinary action including termination as indicated in Section 218.08 (G), of the Elk River City Code. M. DRIVER /APPLICANT RIGHTS 1. Request for Confirmatory Retest ... All applicants and drivers subject to the drug testing provisions of this policy have the right to request, at driver or applicant expense, a retest of the split urine sample within 72 hours of receiving notice of a confirmed positive test result. A. If the driver requests an analysis of the split specimen within seventy- two (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. B. If a driver has not contacted the MRO within seventy -two (72) hours, the driver 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 other circumstances that unavoidably prevented the driver from timely making contact. If the MRO concludes that there is a p age 12 legitimate explanation for the driver's failure to contact within seventy -two is (72) hours, the MRO shall direct the analysis of the split specimen. • 2. Results of Negative Retest ... If the confirming retest is negative, no adverse action will be taken against the driver and an applicant will be considered for employment. 3. Copy of Test Result ... The City shall inform the driver of the right to request and receive from the City a copy of the test result report. XII. DISCIPLINE 1. Persons in Violation... Any person found to be in violation of this policy is subject to discipline up to and including termination of employment as indicated in Section 218.08 (6), of the Elk River City Code. Disciplinary actions taken pursuant to this policy are appealable pursuant to the procedures established in this policy. 2. City's Right to Discipline... Nothing in this policy limits or restricts the right of the City to discipline or terminate a driver for conduct which violates the City's policies or rules whether or not the driver is not tested for controlled substances or alcohol. 3. Appeals Procedure... A. Non - Veteran Drivers ... A non - veteran driver has a right to appeal to the City Administrator no later than twenty-one (2 1) calendar days after the date of the action. B. Veteran Drivers ... A driver who is a veteran has a right to appeal to the City Administrator a permanent demotion (including salary decrease), or a discharge, if the driver submits a notice of appeal within sixty (60) calendar days of the action, regardless of status with respect to the probationary period. A driver who is a veteran may have additional rights under the Veterans Preference Act, Minnesota Statute 197.46. C. Notices of Appeal ... All notices of appeal must be submitted in writing to the City of Elk River City Administrator. XIII. CONFIDENTIALITY OF TEST RESULTS 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. page 13 XIV. POLICY MODIFICATION The City retains the right to modify this policy at its discretion or to conform to changes in regulation or law. XV. ALCOHOL AND CONTROLLED SUBSTANCES CONTACT PERSON The City designated contact persons will coordinate the implementation, direction, and administration of the City's alcohol and controlled substances policy. The contact persons are the principal contacts for the collection site, the testing lab, the MRO, the BAT and the person tested. Driver questions concerning this policy should be directed to either of the contact persons listed below. NOTE: Appendix A provides information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life. s: \drugpo12.doc page 14 • • • • • ACKNOWLEDGMENT OF RECEIPT OF EMPLOYEE DRUG AND ALCOHOL POLICY FOR DRIVERS OF COMMERCIAL VEHICLES I have received a copy of the Transportation Employee Drug and Alcohol Policy and have been provided information on the following: 1. The person designated by the City to answer questions about these materials. 2. Who is subject to alcohol misuse and controlled substance requirements. 3. Explanation of a safety- sensitive function. 4. What driver conduct is prohibited. 5. Circumstances for drug and/or alcohol testing. 6. Procedures used to test for the presence of drugs and/or alcohol. 7. The requirement that drivers submit to controlled substance and alcohol testing. 8. An explanation of what constitutes a refusal to submit to testing. 9. The consequences for drivers violating the prohibitions of this rule, including the immediate removal of the driver from safety- sensitive functions. 10. The consequences for drivers found to have an alcohol concentration of 0.02 or greater, but less than 0.04. 11. Information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life. Signs and symptoms of an alcohol or controlled substances problem and available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to an employee assistance program, and/or referral to management. Signatures Date: Please Print Name: page 15 • 40 Sectioa:21$.08 jf of the Cttp Persoaael Ordinance Reiatiag to Discipline 6. Discipline. Employees shall be subject to disciplinary action for failing to fulfill their job responsibilities, to comply with supervisor directives, or to observe any personnel policy or guideline established by the City or the Personnel Ordinance. Disciplinary action may include, but is not limited to, the following: A. Immediate Termination. Subject to state law on veteran's preference, an employee may be terminated from employment as a first or last disciplinary step. B. Employee Warning. An employee may receive a verbal or written warning from his /her supervisor or the City Administrator. C. Probationary Period. An employee may receive a specific probationary period determined by his /her supervisor or the City Administrator to rectify behavior which requires disciplinary action. D. Suspension. Subject to state law on veteran's preference, an employee may be suspended when the employee's behavior warrants such disciplinary action as determined in the City's sole discretion. E. Demotion. An employee may be demoted for disciplinary reasons if the City determines that such demotion is necessary. The above - mentioned disciplinary measures are intended only to provide examples of types of discipline that may be imposed by the City. They are not meant to be exclusive, nor to require the City to exhaust any particular step, in any particular order, or in any particular circumstance. The type of discipline imposed will be based upon the nature and severity of the infraction and conditions surrounding the incident. The City retains the sole discretion to determine what behavior warrants disciplinary action and what type of disciplinary action will be imposed. The City reserves the right to terminate employees at any time and for any lawful reason with or without notice.