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HomeMy WebLinkAboutCC RES 95-060 RESOLUTION IMPLEMENTING THE FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS Meeting Sheet IIIIIIVIIIVIIIVIIIVIIIVIIIIIIIIIII 103391 Box: 26 Folder: RES 1995 Document: CC RES 95-060 RESOLUTION IMPLEMENTING THE FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS • CITY OF ST. ANTHONY RESOLUTION 95-060 A RESOLUTION IMPLEMENTING THE FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS BE IT RESOLVED, that the St. Anthony City Council hereby approves implementation of "The Federal Omnibus Transportation Employee Testing Act and Related Regulations" attached hereto. Adopted this 27-1 day of /Vp 1)t daL& - , 1995. A- AA,• Mayor ATTEST: City Clerk Reviewed for administration: it anager • THE CITY OF ST. ANTHONY'S POLICY IMPLEMENTING THE FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS The abuse of drugs and alcohol is a nationwide problem which affects persons of every age, race and gender. The City of St. Anthony recognizes that work performance and public safety problems are created when employees use or abuse controlled substances or alcohol. Therefore, the City of St. Anthony wishes to provide a safe workplace for its employees and to maintain a drug and alcohol free workplace. 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 of 1991 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. 1. POLICY All employees are strictly prohibited from using, possessing, manufacturing, dispensing, • selling, or transferring drugs, alcohol or drug paraphernalia or being under the influence of drugs or alcohol while working or performing job duties or while on City premises or while operating City vehicles, machinery or equipment. No employee shall perform safety-sensitive functions within four (4) hours after using alcohol. Any employee found to be in violation of this policy is subject to discipline up and including termination of employment. 2. COVERAGE The Omnibus Transportation Employee Testing Act (the Act), requires that all employees whose job duties include the operation a of commercial motor vehicle and who are required to hold a commercial driver's license (CDL), shall be subject to drug and alcohol testing. "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 weight rating of 26,000 or more pounds; or (b) has a gross combination weight 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 • (c) designed to transport 16 or more passengers including the driver; or Page 2 (d) a vehicle that 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. All applicants, including persons currently employed by the City, that apply for a position where job duties include operating commercial motor vehicles will be required to take a drug test pursuant to the federal regulations. An alcohol test will be conducted pursuant to the City of St. Anthony's Drug and Alcohol Testing Policy applicable to non- transportation employees if a job offer is made and accepted. 3. DEFINITIONS 390.5 Accident (a) Except as provided in paragraph (2) of this definition, an occurrence involving 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 of the accident by a tow truck or other vehicle. (b) The term "accident" does not include: (1) An occurrence involving only boarding and alighting from a stationary motor vehicle; or (2) an occurrence involving only the loading or unloading of cargo; or (3) an occurrence in the course of the operation of a passenger car or a multipurpose passenger vehicle (as defined in 571.3 of this title) by a motor carrier and is not transporting passengers for hire or hazardous materials of a type and quantity that require the motor vehicle to be marked or placarded. 382.107 Alcohol - the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol. 382.107 Alcohol Concentration (or content) - the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as • Page 3 indicated by an evidential breath test under this policy and federal regulations. 382.107 Alcohol Use - the consumption of any beverage, mixture, or preparation, including any medication, containing alcohol. Appointing Authority - the City Manager or other City officer to whom the manager has delegated authority to appoint personnel. Subpart 40.3 BAT (Breath Alcohol Technician) - an individual who instructs and assists individuals in the alcohol testing process and operates an Evidential Breath Test Device (EBT). 40.3 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. With respect to drug testing, these procedures shall require that an appropriate Drug Testing Custody Form be used from time of collection to receipt by the laboratory and that upon receipt by the laboratory an appropriate Laboratory Chain of Custody Form(s) account(s) for the sample or sample aliquots (split samples) within the laboratory. City or City of St. Anthony - the City of St. Anthony, Minnesota, acting through its City Manager or a designee of the City Manager. City of St. Anthony Drug and Alcohol Testing Policy - a separate Drug and Alcohol testing policy that is part of the City of St. Anthony Personnel Rules. 382.107 Commerce - both of the following: (a) any trade, traffic, or transportation within the jurisdiction of the United States between a place and a state and a place outside of such state, including a place outside of the United States, and (b) any trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (a) of this definition. 382.107 Commercial Motor Vehicle - a motor vehicle or combination of motor vehicles used to transport passengers or property if the motor vehicle: (a) has a gross combination weight rating of 26,000 or more pounds; (b) has a gross vehicle weight rating of 26,001 or more pounds, inclusive of a towed unit with a gross vehicle weight rating of more than • Page 4 10,000 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 marked or placarded under the hazardous materials regulations, 49 C.F.R., Part 172, Subpart F. A commercial motor vehicle does not include a fire truck or other emergency fire equipment. 382.107 Confirmation Test - for alcohol testing, it means a second test, following a screening test with a result of .02 or greater, and 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 or metabolite, which independent of the screen test and which uses a different technique and chemical principle from that of the initial screening test, in order to insure reliability and accuracy. (Gas chromatograhy/mass • spectometry, (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine.) MN STAT Confirmatory Retest - for controlled substances, it means a third analytical 181.950 procedure to reconfirm the presence of a specific drug or metabolite. 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 the drug(s). 382.107 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 the behalf of the employers. Controlled Substance - as defined by 21 U.S.C. 802 and includes all substances listed on Schedule 1-5 as they may be revised from time to time (21 C.F.R., Part 1308). Subpart DHHS - The Department of Health and Humans Services or any designee of 40.3 the Secretary of the Department of Health and Human Services. Page 5 40.3 DOT Agency - an agency (operating administration) of the United States Department of Transportation administering regulations requiring alcohol and/or drug testing in accordance with 49 C.F.R., Part 40. 382.107 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 City or who operate a commercial motor vehicle at the direction of or with the consent of the City. 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. Drug - means any substance (other than alcohol) that is a controlled substance as defined in 49 C.F.R., Part 382 and 49 C.F.R., Part 40. 40.3 EBT (Evidential Breath Testing Device) - 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." • Employer - The City of St. Anthony acting through its City Manager or a designee of the City Manager. FHWA - The Federal Highway Administration. 40.3 MRO - Medical Review Officer. A licensed physician (medical doctor or doctor of osteopathy) 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 a driver's medical history and any other relevant biomedical information. 382.107 Performing a Safety Sensitive Function - a driver is considered to be performing a safety sensitive function during any period in which the driver is actual performing, ready to perform, or immediately available to perform, or in a state of readiness to perform any safety sensitive function while on duty. Random Selection - means a mechanism for selection of employees for testing where each employee has an equal chance of being testing each time selections are made. Page 6 382.107 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. 382.107 Refuse to Submit (to an alcohol or controlled substance test) - a driver: (a) 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 part; (b) 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 (c) engages in conduct that clearly obstructs the testing process. 382.107; Safety Sensitive Function - any of the following: 395.2 (a) All time at a carrier or shipping 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; (b) all time inspecting equipment as required by federal regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time; (c) all driving time which shall mean all time spent at the driving controls of a commercial motor vehicle operation; (d) 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 confirming to the requirements of federal regulations; (e) 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 a state of readiness to operate the commercial motor vehicle, or in giving or receiving receipts for shipments loaded or unloaded; (f) all time spent performing the driver requirements of the federal statutes related to accidents; Page 7 (g) all time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle. 382.107 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. State of Readiness - a driver who in on call, ready to be dispatched, to perform safety sensitive functions while on duty. 382.107 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. • Supervisor - the person designated by the City to perform supervisory functions over the City's drivers. 382.107 Violation Rate - the number of drivers found during random tests given pursuant to this policy and federal regulations to have an alcohol concentration of 0.04 or greater, plus the number of drivers who refuse a random test required by this policy and federal regulations, divided by the total reported number of drivers in the industry given random alcohol tests pursuant to this policy and federal regulations, plus the total reported number of drivers in the industry who refuse a random test required by this policy and federal regulations. 4. PROHIBITED CONDUCT Conduct Related to Alcohol 382.505 (a) A driver tested under this policy and federal law 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 (24) hours following administration of the test and the driver will not be compensated • Page 8 during the time off. The driver may use benefit hours during the absence if accrued and available. A detectable alcohol concentration level is in violation of the City of St. Anthony Drug and Alcohol Testing Policy and actions also may be taken under that policy, which may be in addition to this policy. 382.201 (b) 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. (c) 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. 382.204 (d) No driver shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol in any quantity, (also including cold remedies, i.e., NyQuil). 382.205 (e) No driver shall use alcohol while performing safety sensitive functions. 382.204 (f) 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. 382.207 (g) No driver shall perform safety sensitive functions within four (4) hours after using alcohol. 382.207 (h) 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. 382.209 (i) No driver required 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. 382.211 (j) No driver shall refuse to submit to a post-accident test, a random alcohol test, a reasonable suspicion test, or a follow-up alcohol test mandated by this policy and federal law. w Page 9 (k) 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. Conduct Related to Controlled Substances 382.213 (a) 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. 382.213 (b) The City, having actual knowledge that a driver has used a controlled (b) substance, shall not permit the driver to perform or continue to perform a safety function unless use is permitted pursuant to the written instruction of a physician. 382.213 (c) A driver shall inform the driver's supervisor of any therapeutic drug use. (c) • 382.215 (d) No driver shall report for duty, remain on duty, or perform a safety sensitive function, if the driver tests positive for controlled substances. 382.215 (e) 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 a safety sensitive functions. 382.211 (f) No driver shall refuse to submit to a post-accident controlled substance test, a random controlled substance test, a reasonable suspicion controlled substance test mandated by this policy and federal law. 382.211 (g) 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. • • Page 10 5. TYPES OF TESTS REQUIRED Pre-employment Testing 382.301/ Prior to the first time a driver performs safety sensitive functions for the 382.413 City, the driver shall undergo testing 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 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 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. Post-Accident Testing 382.303 (a) Drivers Tested. As soon as practicable following an accident involving a commercial vehicle, the City shall test for alcohol and controlled substances of each surviving driver: 1. Who was performing safety sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or 2. 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" in Section 2 of this policy; or 2a. If a disabled vehicle(s) need(s) to be towed from the scene; or 2b. Injured individual(s) are in need of immediate medical care away from the scene. 3. The City may also test under the City of St. Anthony Drug and Alcohol Testing Policy. • Page 11 382.303 (b) Alcohol Tests. If a test required by this section is not administered within (b)(1) two (2) hours following the accident, the City shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If a test request by this section is not administered within eight (8) hours following the accident, the City shall cease attempts to administer an alcohol test and shall prepare and maintain the same record. Records shall be submitted to the FHWA upon request of the Associate Administrator. 382.303 (c) Controlled Substance Tests. If a test required by this section is not (b)(2) administered within 32 hours following the accident, the City shall cease attempts to administer a controlled substance test, and prepare and maintain on file a record stating the reasons the test was not promptly administered. Records shall be submitted to the FWHA upon request of the Associate Administrator. 382.303 (d) Readily Available. A driver who is subject to post-accident testing shall (c) 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. 382.303 (e) Post-Accident Information. The City shall provide drivers with necessary (d) post-accident information, procedures and instructions, prior to the driver operating a commercial motor vehicle, so that drivers will be able to comply with the requirements of this section. 382.303 (f) Test Results. The results of a breath or blood test for the use of alcohol or a (e) urine test for the use of controlled substances, conducted by Federal, State or local officials having independent authority for the test, shall be considered to meet the requirements of this section provided such tests conform to applicable Federal, State, or local requirements, and that the test results are obtained by the City. Random Testing 382.305 (a) Minimum Annual Percentage Rate. Except as provided in paragraphs (b) through (f) of this section regarding random testing, the minimum annual percentage rate for random alcohol testing shall be twenty-five percent (25%) of the average number of driver positions the City has unless changed by the FHWA Administrator. The minimum annual percentage rate for random controlled substance (drug) testing shall be fifty percent (50%) of the average number of driver positions the City has unless changed by the Page 12 FHWA Administrator. 382.305 (b) 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 of a computer-based random number generator that is matched with a driver's employee identification number, such as social security numbers, payroll identification number, or other comparable identifying number. (The City of St. Anthony will use the employee's payroll identification number.) Under the selection process used, each driver shall have an equal chance of being tested each time selections are made. 382.305 (c) Number of Drivers Selected. As stated earlier, the City is required to (f) randomly select a sufficient number of drivers for alcohol testing during each calendar year to equal an annual rate not less than the minimum annual twenty-five percent (25%) rate for random alcohol testing or the annual rate not less than the minimum annual fifty percent (50%). Consortium The City will be conducting random testing for alcohol and/or Testing controlled substances through a consortium, which means the number of drivers to be tested may be calculated for each individual employer or may be based on the total number of drivers covered by the consortium who are subject to random alcohol and/or controlled substance testing at the same minimum annual percentage rate under this part or any DOT alcohol or controlled substance testing rule. 382.305 (d) Notice Regarding Tests. The City shall ensure that random alcohol and (g) controlled substance testing conducted pursuant to federal law will be unannounced and the dates for administering random alcohol and controlled substance tests are scheduled throughout the calendar year. Drivers may be selected for more than one test per year. 382.305 (e) Test Immediacy. The City shall require that each driver who is notified of (h) selection for random alcohol and/or controlled substance testing proceeds 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 instead ensure that the driver ceases to perform the safety sensitive function and proceeds to the testing site as soon as possible. 382.305 (f) Timing of Test. A driver shall be randomly tested for alcohol only while (i) 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. ® Page 13 Reasonable Suspicion Testing 382.307 (a) City's 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, current, articulable observations concerning the appearance, behavior, speech, or body odors of the driver. City's 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, current, 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. 382.307 (c) Trained Supervisor of Driver. The required observations for alcohol (c) 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. 382.307 (d) Timing of Reasonable Suspicion Observations. Alcohol testing is authorized by federal law and this policy only if the observations required by paragraph (c) above are made during, just proceeding, or just after the period of the workday that the driver is required to be in compliance with federal law and these rules. The driver may be directed by the City to only under go reasonable suspicion testing 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. (e) City's Drug and Alcohol Testing Policy. If the driver is not performing safety sensitive functions and reasonable suspicion exits, drivers may be tested for drugs and alcohol under the City of St. Anthony Drug and Alcohol Testing policy. Page 14 382.307 (f) Prompt Administration of the Test. If an alcohol test required by federal (e)(i) 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 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 and alcohol test and shall state in the record the reasons for not administering the test. 382.307 (g) 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: (1) An alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or (2) 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. 382.307 (h) Driver's Behavior and Appearance Absent Test. Except as provided in (g)(2) of this section, the City shall not take any action under this part against a driver based solely on the driver's behavior and appearance with respect to alcohol use, in the absence of an alcohol test. This does not prohibit the City with independent authority of federal law from taking action otherwise consistent with law. 382.307 (i) 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. Return-to-Duty Testing 382.309 (a) Return-to-Duty Alcohol Test. The City shall ensure that before a driver (a) returns to duty requiring the performance of a safety sensitive function after engaging in conduct prohibited by federal law or this policy concerning Page 15 alcohol, the driver shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02. 382.309 (b) Return-to-Duty Controlled Substance Test. The City shall ensure that before (b) a driver returns to duty requiring the performance of a safety sensitive function after engaging in conduct prohibited by federal law or this policy concerning controlled substances, the driver shall undergo a return-to-duty controlled substance test with a result indicating a verified negative result for controlled substance use. Follow-up Testing 382.311 (a) Follow-up Alcohol and/or Controlled Substance Test. Following a (a) determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, the City shall ensure that the driver 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. 382.311 (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, dust 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. 6. SPECIMEN COLLECTION PROCEDURES (a) The collection site person shall instruct the driver to provide at least 60m1 of urine under the split sample method of collection. 40.25 (b) The City is required to use the "split sample" method of collection for (f)(10) drivers. Split Specimen Procedure for Controlled Substance Testing. 40.25 (a) The driver shall urinate into a specimen bottle that is capable of holding at (0(10)(ii)(a) least 60m1. 40.25 (b) The collection site person shall pour the urine into two specimen bottles. (fl(10)(ii)(b) Thirty (30) ml shall be poured into one bottle, to be used as the primary specimen. At least 15ml shall be poured into the other bottle, to be used as the split specimen. The collection site person shall label one urine specimen bottle as "primary" and the other urine specimen bottle as "split"; seal the • Page 16 specimen bottles; complete a chain of custody document and prepare the bottles for shipment to the testing laboratory for analysis. 40.25 (c) If the driver is unable to provide the appropriate quantity of urine, (000)(M 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 (2) 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 will be notified. The Medical Review Officer (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. For pre-employment testing, the City may elect to revoke the employment offer. 40.25 (d) Both bottles shall be shipped in a single container, together with copies 1, 2, (0(10)(ii)(d) and the split specimen copy of the Chain of Custody Form, to the laboratory. 40.25 (e) If the test result of the primary specimen is positive, the driver may request (0(10)(ii)(d) that the MRO direct the split specimen be tested in a different DHHS- certified laboratory for presence of the drug(s) for which a positive result was • obtained in the test of the primary specimen. The MRO shall honor such a request if it is made within 72 hours of the driver having been notified of a verified positive test result. The testing of the slit specimen by the second laboratory will be done at the driver's expense. 40.25 (f) When the MRO informs the laboratory in writing that the driver has (fl(1o)(ii)(0 requested a test of the split specimen, the laboratory shall forward, to a different DHHS-approved laboratory, the split specimen bottle, with seal intact, a copy of the MRO request, and the split specimen copy of the Chain of Custody entries. 40.25 (g) The result of the test of the split specimen is transmitted by the second (000)(ii)(g) laboratory to the MRO. 40.25 (h) Action required by the regulations as the result of a positive drug test (e.g., (0(10)(ii)(h) removal from performing a safety sensitive function) is not stayed pending the result of the test of the split specimen. 40.25 (i) If the result of the test of the split specimen fails to reconfirm the presence (000)(ii)(i) of the drug(s) or drug metabolite(s) found in the primary specimen, the MRO shall cancel the test, and report the cancellation and the reasons for it to the DOT, the City and the driver. • 40.29 (j) If the result of the primary specimen is positive, the laboratory shall retain • Page 17 (b)(2) the split specimen in frozen storage for 60 days from the date on which the laboratory acquires it. Following the end of the 60-day period, if not informed by the MRO that the driver has requested a test of the split specimen, the laboratory may discard the split specimen. 40.29 (k) When directed in writing by the MRO to forward the split specimen to (b)(3) another DHHS certified laboratory for analysis, the second laboratory shall analyze the split specimen by Gas Chromatography/Mass spectrometry to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen. The split specimen shall be retained in long-term storage for one year by the laboratory conducting the analysis of the split specimen. Reporting and Review of Results for Controlled Substance Testing 40.33 (a) Confirmation 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 if the test is verified as positive. The driver will be responsible for all costs associated with the confirmatory retest unless results are negative. If the driver requests an analysis of the split specimen within 72 hours of having been informed of a verified positive test and the analysis • of the split specimen fails to reconfirm the presence of the drug(s) or drug metabolite(s) that were originally found in the primary specimen, or if the split specimen is unavailable, inadequate for testing or untestable, the MRO shall cancel the test and report the cancellation and the reasons for it to the DOT, the City and the driver. 40.33 (b) MRO shall direct the analysis of split specimen. If the driver has not (g) contacted the MRO within 72 hours of having been informed of a verified positive test, 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 contacting the MRO in a timely manner. If it is determined that the driver did have a legitimate explanation for not contacting the MRO, the MRO shall direct the analysis of the split specimen, as applicable, be performed. (c) MRO is unable to contact the Driver. If, after making reasonable efforts and documenting those 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 contact the driver, the driver will be placed on suspension. • (d) MRO may verifv a Positive Test. The MRO may verify a positive test without having communicated directly with the driver about the test results Page 18 under the following circumstances: (1) The driver expressly declines the opportunity to discuss the test results. (2) The driver has not contacted the MRO within five (5) days of being instructed to do so by the City. 7. ALCOHOL TESTING The FWHA alcohol testing rules require breath testing to be administered by a Breath Alcohol Technician (BAT) using an Evidential Breath Testing Device (EBT). Two (2) breath tests are required to determine if a person has a prohibited alcohol concentration. Any results 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 a 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. 8. CONFIDENTIALITY • All alcohol/controlled substances test results and the 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. 9. CONSEQUENCES FOR DRIVERS ENGAGING IN PROHIBITED CONDUCT 382.501 (a) Removal From Safety Sensitive Function. Except as provided in federal law, (a) no driver shall perform safety sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by federal law or this policy or an alcohol or controlled substance rule of another Department of Transportation agency. 382.501 (b) Prohibition of Safety Sensitive Functions. The City shall not permit any (b) driver to perform safety sensitive functions, including driving a commercial vehicle, if the City has determined that the driver has violated federal law. (c) Refusal to Submit. If the driver refuses to undergo the required testing From the under the federal regulations, the driver may be subject to discipline City of St. including, but not limited to, discharge. A driver may request a • Anthony hearing under a negotiated agreement if permitted, or under the St. Drug & Anthony City Code, Section 300.20. If a job applicant refuses to • Page 19 Alcohol submit to drug and alcohol testing carried out in conjunction Policy with federal regulations, the job applicant may not be hired. (d) Pre-employment Test. Job Applicants (including the Promotion of Drivers). The appointing authority will not withdraw an offer of employment or promotion to a driver position made contingent on the job applicant passing drug and alcohol testing based on a positive test result in 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 (controlled substances only), the appointing authority will withdraw the contingent offer of employment or promotion to a driver position if the City determines in accordance with the Minnesota Human Rights Act that alcohol or drug usage or abuse prevents the job applicant from performing the safety sensitive functions of the job in question. 181.953 (e) Other Tests. The appointing authority will not discharge, discipline, Subd. 10 (b) discriminate against, or request or require rehabilitation of a driver MN Stat. solely on the basis of a positive test result from a 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 (controlled substances only), the City may do the following: (1) First Positive Test Result. The driver will be given an opportunity to participate in either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate. After consultation with a Substance Abuse Professional or physician trained in the diagnosis and treatment of chemical dependency from the driver's health plan, participation in a counseling or rehabilitation program will be at the driver's own expense or pursuant to coverage under the driver's own benefit plan. If the driver 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 driver from performing the safety sensitive functions of the job in question, the appointing authority will recommended that the driver be discharged from employment. • (2) Second Positive Test Result. Where alcohol or drug abuse • Page 20 prevents the driver from performing the safety sensitive functions of the job in question, it will be recommended that the driver be disciplined; including, but not limited to, discharge from employment. The driver, whether discharged or not, will have access to the evaluation and referral in resolving problems with alcohol misuse and controlled substance use through the driver's health plan, again at the driver's expense. (3) Suspensions and Transfers. Notwithstanding any other provisions herein, the City may temporarily suspend the tested driver with pay for up to 90 days or transfer that driver to another position at the same rate of pay of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest (controlled substances only), provided the City believes that it is reasonably necessary to protect the health or safety of the driver, co-employees, or the public. (4) Other Misconduct. Nothing in this policy limits the right of the City to discipline or discharge a driver on grounds other than a positive test result in a confirmatory test arising from the same or another incident, including but not limited to, a conviction of any criminal drug statute for a violation occurring in the workplace. 10. PENALTIES 582.507 Criminal penalties shall be prescribed by 49 U.S.C. Sec. 521 (b)(2), which provides that an employee who knowingly and willfully violates the Omnibus Transportation Employee Testing Act while operating a commercial motor vehicle by activities that have led or could have led to death or serious injury is subject to the statutory criminal sanctions. 11. REFERRAL, EVALUATION, AND TREATMENT 382.605 (a) Resource Advisory. Each driver who engages in conduct prohibited by (a) federal law and this policy shall be advised by the City of the resources available to the driver in evaluating and resolving problems associated with the misuse of alcohol and use of controlled substances, including the names, addresses, and telephone numbers of substance abuse professionals and counseling and treatment programs. 382.605 (b) Evaluation by a Substance Abuse Professional. Each driver who engages in • Page 21 (b) conduct prohibited by federal law and this policy shall be evaluated by a Substance Abuse Professional who shall determine what assistance, if any, the driver needs in resolving problems associated with alcohol misuse and controlled substance use. 382.605 (c) Return to Duty Testing and Assistance. (c)(1) (1) Before a driver returns to duty requiring the performance of a safety sensitive function after engaging in conduct prohibited by a federal law or this policy, the driver shall undergo a Return-To-Duty alcohol test with the result indicating an alcohol concentration of less than 0.02 if the conduct involved alcohol, or a controlled substance test with a verified negative result if the conduct involved a controlled substance. 382.605 (2) In addition, each driver identified as needing assistance in resolving (c)(2)(i-ii) problems associated with alcohol misuse or controlled substance use: (A.) Shall be evaluated by a Substance Abuse Professional to determine that the driver has properly followed any rehabilitation program prescribed under federal law and these rules; and • (B.) Shall be subject to unannounced Follow-Up alcohol and controlled substance testing administered by the City following the driver's return to duty. The number and frequency of such Follow- Up testing shall be as directed by the Substance Abuse Professional, and consist of at least six (6) tests in the first twelve (12) months following the driver's return to duty. The City may direct the driver to undergo Return-To-Duty and Follow-Up testing for both alcohol and controlled substances, if the Substance Abuse Professional determines that Return-To-Duty and Follow-Up testing for both alcohol and controlled substances is necessary for that particular driver. Any such testing shall be performed in accordance with the requirements of 49 C.F.R. Part 40. Follow-Up testing shall not exceed sixty (60) months from the date of the driver's Return-To- Duty. The Substance Abuse Professional may terminate the requirement for Follow-Up testing at any time after the first six (6) tests have been administered, if the Substance Abuse Professional determines that such testing is no longer necessary. 382.605 (d) Evaluation and Rehabilitation. Evaluation can be provided by the Substance Abuse Professional associated with the driver's health plan. Any recommended participation in a counseling or rehabilitation program will be • at the driver's own expense or pursuant to coverage under an employee's benefit plan. • Page 22 382.605 (e) Conflict of Interest of Substance Abuse Professional. The City shall ensure (e) that a Substance Abuse Professional who determines that a driver requires assistance in resolving problems with alcohol misuse or controlled substance use does not refer the driver to the Substance Abuse Professional's private practice or to a personal organization from which the Substance Abuse Professional receives compensation or in which the Substance Abuse Professional has a financial interest. This paragraph does not prohibit a Substance Abuse Professional from referring a driver for assistance provided through a public agency, the City or a person under contract to provide treatment for alcohol or controlled substance problems on behalf of the City, the sole source of therapeutically appropriate treatment under the driver's health insurance program; or the sole source of therapeutically appropriate treatment reasonable accessible to the driver. 382.605 (f) Inapplicability of Section. The requirement of this section with respect to (f) referral, evaluation, rehabilitation do not apply to applicants who refuse to submit to a pre-employment controlled substance test or who have a pre- employment controlled substance test with a verified positive test result. 12. APPEALS PROCEDURE (a) Concerning disciplinary actions taken pursuant to this City of St. Anthony Policy Implementing the Federal Omnibus Transportation Employee Testing Act and Related Regulations, available appeal procedures are as follows: (1) Temporary Employees. Temporary employees as defined in the City of St. Anthony Personnel Policy shall have no right of appeal. (2) Non-Veterans on Probation. An employee who has not completed the probationary period and who is not a veteran, has no right to appeal. (3) Non-Veterans After Probation. A regular employee who has completed the probationary period and who is not a veteran, has a right to appeal to the City Manager no later than 15 calendar days of the action, or the employee may utilize the grievance procedure included in the applicable collective bargaining agreement. (4) Veterans. An employee who is a veteran has a right to appeal to the City Manager, a permanent demotion (including salary decreases), or a discharge, if the employee submits a notice of appeal within sixty (60) calendar days of the action, regardless of status with respect to the probationary period. An employee who is a veteran may have • Page 23 additional rights under the Veterans Preference Act, Minn. Stat. 197.46, and as such will be notified by the City in writing of any proposed disciplinary action. (b) All notices of appeal not covered under a collective bargaining agreement must be submitted in writing to the City Manager, 3301 Silver Lake Road, St. Anthony, Minnesota 55418, and shall be provided an appropriate hearing. (c) An employee who is covered by a collective bargaining agreement may elect to seek relief under the terms of that agreement by contacting the appropriate union and initiating grievance procedures in lieu of making an appeal to the City Manager. 13. GOOD FAITH EFFORT The City of St. Anthony will make a continuing good faith effort to maintain a drug-free workplace through the implementation of the City of St. Anthony Implementing the Federal Omnibus Transportation Employee Testing Act and Related Regulations. This policy implementing the Federal Omnibus Transportation Employee Testing Act is based upon final federal regulations at the time of the adoption of this policy. Any revisions in the federal rules shall take precedence over this policy to the extent that the policy has not incorporated the revised rules. POLICY MODIFICATION Addendum No. 1, 10/95 In accordance with state and federal law, The City of St. Anthony has altered its procedures governing pre-employment alcohol testing. Pre-employment alcohol testing will now be conducted pursuant to the City's drug and alcohol testing policy applicable to non- transportation employees. A copy of that policy will be provided to all individuals given a contingent offer of employment as a transportation employee. sadrglpo1