§ 32.180 PURPOSE.
The purpose of this policy is to perform the necessary drug and alcohol testing pursuant to the federally mandated requirements under 49 CFR Part 40 and Part 382. The drug-related requirements of this policy become effective January 1, 1996. The alcohol-related requirements under this policy become effective January 1, 1996.
(Ord. 661, passed 12-27-95)
§ 32.181 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. 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; casual, 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. For the purpose of pre-employment/pre-duty testing only, the term driver includes a person applying to an employer to drive a commercial motor vehicle.
SAFETY-SENSITIVE FUNCTION. Any of those on-duty functions set forth in 49 CFR Part 395.2, paragraphs (1) through (7).
(Ord. 661, passed 12-27-95)
§ 32.182 USE PROHIBITED.
The unlawful manufacture, distribution, dispensation, possession or use of a controlled substance or alcohol is prohibited on all municipal premises, in any municipally-owned or leased motor vehicle, or other location at which the driver is to perform work. Nor will this municipality hire or retain any individual who uses or possesses any illegal drug, in any amount and regardless of frequency, or any individual who engages in prohibited alcohol-related conduct.
(A) The municipality will maintain a pre-employment screening program designed to prevent hiring anyone who uses any illegal drugs, or engages in prohibited alcohol-related conduct.
(B) No driver will consume any Schedule 1 drug of the Schedule of Controlled Substance of the Drug Enforcement Administration or any amphetamines, narcotics, opiates, hallucinogenic substances, depressants, stimulants, or any other habit forming drug while on or off duty, except as provided in division (D).
(C) No driver shall report for work or drive while impaired by any drug, controlled substance, or with an alcohol breath concentration of .02 or greater.
(D) A driver may use a substance administered by or under direction of a physician who has advised the driver that the substance will not affect the driver’s ability to safely operate a motor vehicle.
(E) No driver may operate any motor vehicle whose motor senses, sight, hearing, balance, reaction, reflexes or judgement are or may be presumed affected or has consumed any alcohol within four hours.
(F) Any driver who sells or otherwise dispenses illegal drugs or alcohol to others on municipal premises, in or from a municipally-owned or leased motor vehicle is subject to immediate termination.
(Ord. 661, passed 12-27-95)
§ 32.183 DRUG AND ALCOHOL TESTING.
(A) Statement of policy. It is the policy of the city that the public has the reasonable right to expect persons employed by the city to be free from the effects of drugs and alcohol. The city has the right to expect its employees to report to work fit and able for duty. The purposes of this policy shall be achieved in such manner as not to violate any established rights of the employees and the general public.
(B) Definitions.
(1) RESTRICTED PERIOD.
(a) Any time the employee is entitled to compensation from the city, other than non-work hours for which an employee is entitled to compensation;
(b) Any time the employee is present on the city premises, in vehicles owned and maintained by the city; or
(c) Any time the employee is operating a vehicle or equipment owned or leased by the city.
(2) DRUG. Any non-prescribed controlled substance to which the employee is not authorized to possess or consume by law.
(3) POSITIVE TEST RESULT. A test performed:
(a) On a blood specimen provided by the employee measured an ethyl alcohol concentration in such specimen of .05% or more;
(b) If on more than one occasion a blood specimen provided by the employee measured an ethyl alcohol concentration in such specimen of less than .05%, and it can be determined from the test(s) performed on that specimen and in accordance with acceptable medical standards that the ethyl alcohol concentration was .05% or more during a restricted period;
(c) On a urine specimen provided by the employee detected any amount of a drug.
(4) REASONABLE SUSPICION. An articulable belief, in writing, based on specific facts and reasonable inferences drawn from those facts that an employee is under the influence of drugs or alcohol, or is using, in possession of or selling drugs or alcohol.
(C) Prohibitions. Employees shall be prohibited from:
(1) Consuming or possessing drugs or alcohol (unless in accordance with duty requirements) at any time during a restricted period, including when in the employee’s personal vehicle while engaged in the city’s business;
(2) Illegally selling, purchasing or distributing any drug or alcohol during a restricted period, unless in accordance with duty requirements;
(3) Being under the influence of drugs or alcohol during a restricted period;
(4) Excessive use of legal drugs during a restricted period; and
(5) Failing to report to their supervisor any known adverse side effects of medication or prescription drugs that they are taking.
(D) Testing conditions.
(1) The city (City Administrator) shall have the right to require an employee to submit to drug or alcohol testing where “reasonable suspicion” exists that the employee is in violation of the above prohibitions stated division (C) of this section. At least one supervisory personnel must certify their “reasonable suspicion” concerning the affected employee prior to any order to submit to drug or alcohol testing authorized herein. Refusal to submit to such testing may subject the employee to discharge, but the employee’s taking of such tests shall not constitute a waiver of any objection or rights that the employee may have.
(2) The city (City Administrator) may require an employee to supply a blood or urine sample for testing upon reinstatement to active status following any leave of absence in excess of 30 days without the requirement of “reasonable suspicion”.
(3) The city (City Administrator) may require an employee to supply a blood or urine sample for testing as a condition of the promotional process or for initial employment with the employer, without the requirement of “reasonable suspicion”.
(E) Testing procedures.
(1) In conducting the testing authorized by this section, the city shall:
(a) Use only a clinical laboratory or hospital facility that is licensed pursuant to the Illinois Clinical Laboratory Act that has or is capable of being accredited by the National Institute of Drug Abuse (NIDA);
(b) Insure to the best of the city’s knowledge and belief that the laboratory or facility selected conforms to all NIDA standards;
(c) Establish a “chain of custody” procedure for both the sample collection and testing that will insure the integrity of the identity of each sample and test result;
(d) Provide each employee tested with a copy of all information and reports received in connection with the testing and the results;
(e) Insure that no employee is the subject of any adverse employment action except emergency temporary reassignment or relief from duty with pay during the pendency of any testing procedure. Any such emergency reassignment or relief from duty shall be immediately discontinued in the event of a negative test result reported to the city.
(2) Furthermore, to the best of the city’s knowledge and belief, the clinical laboratory or hospital facility conducting the tests shall be responsible for:
(a) Collecting a sufficient sample of the same bodily fluid or material from an employee to allow for initial screening, a confirmatory test and a sufficient amount to be set aside, reserved for later testing if requested by the employee.
(b) Collect samples in such a manner as to preserve the individual employee’s right to privacy, insure a high degree of security for the sample and its freedom from adulteration. Employees shall not be witnessed by anyone while submitting a sample, except in circumstances where the laboratory or facility does not have a “clean room” for submitting samples or where there is reasonable belief that the employee has attempted to compromise the accuracy of the testing procedure.
(c) Confirm any sample that tests positive in the initial screening for drugs or alcohol by testing the second portion of the same sample by gas chromatography mass spectrometry (GCMS) or an equivalent or better scientifically accurate and accepted method that provides quantitative data about the detected drug or drug metabolites.
(d) Provide the employee tested with an opportunity to have the additional sample tested by a clinical laboratory or hospital facility of the employee’s own choosing, at the employee’s own expense, provided the employee notifies the city within 48 hours of receiving the results of the tests.
(e) Be required to report to the city that the blood or urine sample is positive only if both the initial screening and confirmation test is positive for a particular “drug”. The parties agree that should any information concerning such testing or the results thereof be obtained by the employer inconsistent with the understandings expressed herein (i.e. billings for testing that reveal the nature or number of test administered), the city will not use such information in any manner or forum adverse to the employee’s interests.
(f) With regard to alcohol testing, for the purpose of determining whether the employee is under the influence if alcohol, tests results showing an alcohol concentration of .05 or more based upon the grams of alcohol per 100 milliliters of blood be considered positive.
(F) Employee right to grieve. The employee shall have the right to file a grievance concerning any testing permitted herein, contesting the basis for the order to submit to the tests, the right to test, the administration of the tests, the significance and accuracy of the tests, the consequences of the testing or results.
(G) Discipline.
(1) Positive test results. Where the employee tests positive on both the initial and confirmatory tests for drugs or alcohol, the employee shall be subject to discipline appropriate under the circumstances. However, when the employee is taking prescription medication in conformity with the lawful direction of the prescribing physician or a non-prescription medication in conformity with the manufacturer’s specified dosage and the employee has notified the city of the use of the prescription or non-prescription medication before any laboratory test is performed on the requested urine and/or blood specimen, a positive test result consistent with the ingredients of such medication shall not constitute cause for discipline. (The city may require an employee to provide evidence that any prescription medication has been lawfully prescribed by a physician for the employee.)
(2) Refusal to provide a blood or urine specimen. An employee’s refusal to provide a urine and/or blood specimen for laboratory testing, when requested by the city, shall constitute cause for immediate dismissal of the employee. An employee’s physical inability to provide a urine specimen shall not be considered to be a refusal to provide a specimen. If an employee is physically unable to provide a urine specimen when requested by the city, the city may request a blood specimen for laboratory testing.
(3) Tampering with or substitution of a specimen. Intentionally tampering with, causing another person to tamper with, substituting for, or causing another person to substitute for a urine and/or blood specimen, whether the employee’s own specimen or another employee’s specimen, shall constitute cause for immediate dismissal of the employee who engages in such activity.
(4) Felony conviction. The conviction of an employee for any felony a legal element of which requires proof of the possession, sale, use or distribution of a drug shall constitute cause for discharge, whether or not such felony occurred during a restricted period.
(H) Voluntary request for assistance. The employee shall not be subject to disciplinary action when voluntarily seeking treatment, counseling or other support for drug or alcohol related problems. However, the city shall not be obligated to retain the employee on active status throughout the period of such rehabilitation if it is appropriately determined that the employee’s current use of drug or alcohol prevents such employee from performing his or her duties or whose continuance on active status would constitute a direct threat to property or safety of others. Such employee shall be afforded the opportunity to use accumulated paid leave of absence periods or take an unpaid leave of absence, at the employee’s option, pending completion of such rehabilitative treatment. The foregoing shall not limit the city from imposing appropriate disciplinary action if the employee subsequently fails to successfully complete such rehabilitative treatment.
(Ord. 661, passed 12-27-95; Am. Ord. 743, passed 10-2-00)
§ 32.184 TEST RESULTS.
(A) Drug test results. Test results will be reviewed to determine whether there is any indication of a controlled substance abuse.
(1) The test results will be 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 results will be released to the Medical Review Officer, who will then release the results to the Mid-West Truckers Association (our drug test consortium), which will forward them to the Illinois Municipal League, which will forward those results to this municipality, which will maintain them in a secure location with controlled access.
(B) Alcohol test results. The test results shall be provided on forms established by Subpart C 40.59 Appendix A. Copy 1 (white) will be retained by the Breath Alcohol Technicians (BAT), copy 2 (green) shall go to the employee, copy 3 (blue) shall be transmitted to the employer.
(C) General.
(1) The test results from all drug and alcohol tests will become a part of the driver’s qualification file which shall be in a secured location with controlled access and retained as specified in Section 382.401 or in this policy.
(2) The results will not be released to any unauthorized party without written consent. Every driver upon termination is required to permit in writing the release of their urine drug and breath alcohol test results for at least two 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 or her urine drug and breath alcohol test results promptly to any other possible employer at no charge.
(Ord. 661, passed 12-27-95)
§ 32.185 ASSISTANCE PROGRAM.
An employee assistance program will be conducted by this municipality to provide educational information concerning the effects and consequences of drug or alcohol use on personal health, safety and work environment.
(A) Every driver will be required to take at least one hour of training each year on substance abuse and alcohol use, and sign form IML-10 certifying your attendance.
(B) Written notice will be given when this training is available.
(Ord. 661, passed 12-27-95)
§ 32.186 LAWS AND REGULATIONS.
(A) This municipality will comply with all federal, state and local laws and regulations concerning any violations of criminal drug and alcohol use status in the work place.
(B) Record keeping: all records will be retained as listed in Section 382.401.
(C) A driver is entitled, upon written request, to obtain copies of any records pertaining to the driver’s use of drugs or alcohol, and test results. Access shall not be contingent upon payment for records other than those requested.
(D) Records shall be made available to a subsequent employer upon receipt of a written request from a driver.
(E) An employer may disclose information required to be maintained under this policy on a driver, to the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of that driver and arising from the results of an alcohol or controlled substance test required by this policy, or from the employer’s determination that the driver 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 driver.)
(Ord. 661, passed 12-27-95)
§ 32.187 DISCIPLINARY ACTION.
(A) After two violations of this policy the driver shall be terminated.
(B) Every driver who has engaged in violations of this policy will be advised by the employer of resources available to the driver in evaluating and resolving problems associated with the misuse of drugs or alcohol.
(C) (1) Prior to being eligible for return-to-duty testing a driver must be evaluated by a Substance Abuse Professional, who shall set up any assistance needed. When the driver has complied with all the recommendations of the SAP, the driver must request the results of the evaluation and notification of release be given in writing to our MRO.
(2) The MRO shall then subject such drivers to at least six unannounced urine drug tests or breath alcohol tests in the first 12 months after return to duty. Follow-up testing shall not extend beyond 60 months, per 382.605.
(3) All records in reference to the referrals, evaluation, return-to-duty and follow-up testing shall be retained for five years.
(Ord. 661, passed 12-27-95)
