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HomeMy WebLinkAbout96-034 CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA RESOLUTION Date March 18, 1996 Resolution 96 34 Motion By Johnson SecondedBy sindt RESOLUTION ADOPTING DRUG AND ALCOHOL TESTING POLICY FOR COMMERCIAL VEHICLE DRIVERS WHEREAS, on February 15, 1994, the federal government mandated alcohol and controlled substance testing for all commercial vehicle drivers; and WI~REAS, the City is required to implement the testing policy. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lakeville: 1. The attached City of Lakeville Dru and Alcohol Testing Polic for g Y Commercial Vehicle Drivers is adopted. The policy shall be construed and applied consistent with federal law and regulations. The policy is not applicable to employees covered by similar policies in collective bargaining agreements. 2. The City Administrator is directed to insert the policy into the City's Employee Handbook and to distribute copies to affected employees. ADOPTED this lath day of March , 1996, by the City Council of the City of Lakeville. CITY OF LAKEVILLE BY: Du ne R. Zaun, Mayor TTEST: Charlene Friedges, y Clerk 35530.07 RNK:03/08/96 • CITY OF LAKEVII.LE DRUG AND ALCOHOL TESTING POLICY FOR COMI~~RCIAL VEHICLE DRIVERS I. INTRODUCTION On February 15, 1994, the federal government, through the U.S. Federal Highway Administration, issued a thorough set of regulations mandating alcohol and controlled substance testing for all commercial motor vehicle drivers. All employees not covered by this policy continue to be covered by the City's general alcohol and drug testing policy. II. DEFINITIONS 1. Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol. 2. Alcohol Concentration (or content) means the alcohol in a volume of breath expressed in terms of grams of alcohol per 2101iters of breath as indicated by an evidential breath test. 3. Commercial Motor Vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle: a. Has a gross combination weight 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 21271 ® and which require the motor vehicle to be placarded under the Hazardous Materials Regulations. 4. Confirmation Test for alcohol testing means a second test, following a screening test with a result of .02 or greater, that provides quantitative data of alcohol concentration. For controlled substances testing means a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the screen test and which uses a different technique and chemical principle from that of the screen 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) . 5. Controlled Substance means a drug or other substance or immediate precursor, included in schedules I, II, III, IV, or V of 21 U.S.C 812 as they may be revised from time to time. 6. Driver means any person who operates a commercial motor vehicle. 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 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 to drive a commercial motor vehicle. 7. Performing a Safety Sensitive Function means a driver is considered to be performing a safety sensitive function during any period in which the driver is actually performing, ready to perform, or immediately available to perform any safety; sensitive functions. 8. Refusal to Submit (to an Alcohol or Controlled Substances Test) means that a driver 1) fails to provide adequate breath for testing or 2) fails to provide adequate urine for controlled substances testing, without a valid medical explanation after he or she has received notice of the requirements to provide such samples under the provisions of this policy. In addition, refusal to submit also includes conduct which clearly obstructs the testing process. 9. Safety Sensitive Function means any of those on-duty functions set forth in 49 CFR 395.2 paragraphs 1-7 hereby reproduced: 21277 2 • 1) 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 duty by the motor carrier; 2) All time inspecting, servicing, or conditioning any commercial motor vehicle at any time; 3) All driving time as defined in the term driving time in this section; 4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth as defined by the term sleeper berth of this section; 5) 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; 6) All time spent after an accident to stop; take all necessary precautions to prevent further accidents at the scene; provide the driver's name, employer, and license; and to render reasonable assistance to injured persons; 7) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle. 10. Screening Test (or Initial Test) On alcohol testing, it means an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in the driver's system. In controlled substance testing, it means an immunoassay screen to eliminate "negative" urine specimens from further consideration. 11. Substance Abuse Professional means 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 who possess knowledge of and clinical experience in the. diagnosis and treatment of alcohol and controlled substances-related disorders. 12. Violation Rate means the number of drivers found during random tests given to have an alcohol concentration of .04 or greater, plus the number of drivers who refuse a required random test, divided by the total reported number of drivers in the 27277 3 industry given random alcohol tests plus the total reported number of drivers in the industry who refuse a random test. III. PROHIBITIONS 1. Alcohol Concentration. No driver shall report for duty or remain on duty requiring the performance of safety sensitive functions while having an alcohol concentration of .04 or greater. (see V E. below., for. a driver alcohol concentration. of more than .02 but less than .04). 2. Alcohol Possession. No driver shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol. 3. On Duty Use. No driver shall use alcohol while performing safety sensitive functions. 4. Pre Duty Use. No driver shall perform safety sensitive functions within four hours after using alcohol. 5. Use Following an Accident. No driver required to take apost-accident alcohol test shall use alcohol for eight hours following the accident, or until the driver undergoes apost-accident alcohol test, whichever occurs first. 6. Refusal to Submit to a Required Alcohol or Controlled Substance Test. No driver shall refuse to submit to a post accident alcohol or controlled substances test, a reasonable suspicion alcohol or controlled substances test, or a follow-up alcohol or controlled substances test. 7. City's Duty Regarding Alcohol. If the City has actual knowledge that: a) a driver has an alcohol concentration of .04 or greater; or b) a driver is using alcohol while performing safety sensitive functions; or c) a driver has used alcohol within the past four hours, d) the driver refused to submit to a test required under number six above; the City shall not permit the driver to perform or continue to perform safety sensitive functions. 21271 4 • If the City has actual knowledge that a driver possesses alcohol, it shall not permit the driver to continue to drive a commercial motor vehicle. 8. Controlled Substances Use. 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. The City may require a driver to inform the City of any therapeutic drug use.. 9. Controlled Substance Testing. No driver shall report for duty, remain on duty or perform a safety sensitive function, if the driver tests positive for controlled substances. 10. City's Duty Concerning Controlled Substances. The city, having actual knowledge that a driver has tested positive for controlled substances or that a driver has used a controlled substance, shall not permit the driver to perform or continue to perform safety sensitive functions. IV. CONSEQUENCES FOR VIOLATIONS A. Discipline. A violation of any of the terms of part III of this policy may be grounds for disciplinary action. B. Removal. A driver determined to have violated any prohibition in part III of this policy shall be .immediately removed from the safety sensitive function. C. Referral. A driver determined to have engaged in conduct prohibited by part III of this policy shall be referred to and evaluated by a substance abuse professional in accordance with the procedure set forth in Appendix A. D. Penalties. A civil penalty of up to $1,000 may be imposed on the driver by the Department of Transportation for violating the rules set forth in this policy. A fine of up to $10,000 may be imposed on the City for violating these. rules. E. Other alcohol related conduct. A driver tested under part V who is found to have an alcohol concentration between .02 and .04 shall not perform or continue to perform safety sensitive functions for an employer, including driving a commercial motor vehicle, until the start of the driver's next regularly scheduled duty period, but not less than 24 hours following administration of the test. 21271 5 • F. Refusal to submit to a required test. A driver who refuses to submit to a require test shall be subject to paragraphs A and C above as appropriate. The Federal Highway Administration will disqualify drivers for one year, under the procedures in 49 CFR 386, if a driver refuses to submit to apost-accident test after a fatal accident. An applicant's refusal to submit to apre-employment test precludes hiring the applicant. A driver's refusal to submit to a return-to-duty test precludes a return to duty. V. REQUIRED EMPLOYER TESTING A. Requirement for Notice. Before performing an alcohol or controlled substances test, the City shall notify a driver that the alcohol or controlled substances test is required by federal rules. B. Pre-employment Testing. Every driver shall undergo testing for alcohol and controlled substances before the driver performs a safety sensitive function for the City for the first time. If a driver has been performing safety sensitive functions prior to the adoption of this policy, the driver must be tested before performing any safety sensitive functions in 1996. The City is not required to perform an alcohol test required by the preceding paragraph if all of the following are true: 1. The driver has undergone an alcohol test required by this section or another DOT regulation within the previous six months and the test result indicated the driver had an alcohol concentration level below .04; and 2. The City ensures that no prior employer of the driver of which the City has knowledge has records indicating the .driver has violated the rules of this policy or another DOT regulation within the previous six months; and 3. The City contacts the alcohol testing program in which the driver participated to verify the foregoing requirements were observed. The City is not required to perform apre-employment controlled substance test if: 1. The driver participates in a controlled substances testing program in conformity with this policy; and 27277 6 • 2. Any test results showed an absence of controlled substance use; and 3. The city ensures that no prior employer of the driver of which the City has knowledge has records indicating the driver has violated this policy or another DOT regulation within the previous six months; and 4. The City contacts the controlled substance testing program in which the driver participated to verify the foregoing requirements were observed. If the City uses, but does not employ, a driver more than once a year, the City must assure itself once every six months that the driver participates in an alcohol and controlled substances testing program(s) that meet the requirements of this policy. C. Post-Accident Testing. 1. As soon as practicable following an accident involving a commercial motor vehicle, the City shall test each surviving driver for alcohol and controlled substances: a. Who was performing safety sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or t~ b. Who receives a citation under State or local law for a moving traffic violation arising from the accident. 2. Test Types. a. Alcohol Tests. If a test required by this section is not administered within two 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 required by this section is not administered with eight 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 Federal Highways Administration (FHWA) upon request of the Associate Administrator. b. Controlled Substance Tests. If a test required by this section is not administered within thirty-two hours following the accident, the City shall cease attempts to administer a controlled substances test, and prepare and maintain on file a record stating the reasons the test was • 21271 7 \ • not promptly administered. Records shall be submitted to the FHWA upon request of the Associate Administrator. 3. 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. 4. The City shall provide drivers with necessary past-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. 5. The City may use the results from any breath or blood alcohol test or controlled substance urine test given by a peace officer in accordance with law. D. Random Testing 1. The minimum annual percentage -rate for random alcohol testing shall be twenty-five percent (25 of the average number of driver positions. 2. The minimum annual percentage rate for random controlled substances testing shall be fifty percent (50 of the average number of driver positions. 3. The FHWA Administrator may increase or decrease the minimum annual percentage rate for alcohol testing applicable January 1 of the calendar year following publication. 4. The selection of drivers for .random alcohol and controlled substances 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 drivers' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each driver shall have an equal chance of being tested each time selections are made. • 21271 g • 5. The City shall 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 percentage rate for random alcohol testing determined by the FHWA Administration. For controlled substances testing, the City shall randomly select a sufficient number of drivers for controlled substances testing during each calendar year to equal an annual rate not less than the minimum annual percentage rate of fifty percent (50 of drivers. 6. The random alcohol and controlled substances test conducted shall be unannounced and the dates for administering random alcohol and controlled substances test shall be spread reasonably throughout the calendar year. 7. Each driver who is notified of selection for random alcohol and/or controlled substances testing shall proceed to the test site immediately; provided, however, that if the driver is performing asafety-sensitive function at the time of notification, the driver shall cease to perform the safety-sensitive function and proceed to the testing site as soon as possible as directed. 8. 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 functions. E. Reasonable Suspicion Testing 1. A driver shall submit to an alcohol test when the City has reasonable suspicion to believe that the driver has violated the prohibitions concerning alcohol, except for II. B. (Alcohol Possession). The determination that reasonable suspicion exists to require the driver to undergo an alcohol test shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. 2. A driver hall submit to a controlled substances test when the City has reasonable suspicion to believe that the driver has violated the prohibitions concerning controlled substances. The City's determination that reasonable suspicion exists to require the driver to undergo a controlled substances test shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances. • 21271 9 3. A trained supervisor or City official shall make the required observations for alcohol and/or controlled substances for reasonable suspicion testing. The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver. 4. Alcohol testing is authorized only when the observations are made during, just preceding, or just after the period of work day that the driver is ..required to be incompliance, A driver may be directed by the City to only undergo reasonable suspicion testing 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 functions. 5. If an alcohol test is not administered within two (2) hours following the determination, the City shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test is not administered within eight (8) hours following the determination, the City shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test. Notwithstanding the absence of a reasonable suspicion alcohol test, driver shall not report for duty.. or:remain on duty requiring the performance of safety-sensitive functions .while under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse, nor shall the City permit the driver to perform or continue to perform safety-sensitive functions, until: a. An alcohol testis. administered and the driver's alcohol concentration measures less than 0.02; or b. Twenty-four (24) hours have elapsed following the determination that there is reasonable suspicion to believe that the driver has violated the prohibitions concerning the use of alcohol. Except as provided above, the City shall not take any action 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 from taking any action otherwise consistent with law. 6. A written record shall be made. of the observations leading to a controlled substance reasonable. suspicion test, and signed by the supervisor or City official who made the observations, within twenty-four (24) hours of the z~z~i 10 • observed behavior or before the results of the controlled substances test are released, whichever is earlier. F. Return-To-Duty Testing 1. The City shall ensure that before a driver returns to duty requiring the performance of asafety-sensitive function after engaging in prohibited .conduct concerning alcohol, the driver shall undergo areturn-to-duty alcohol est with a result indicating an alcohol concentration of less than 0.02. 2. The City shall ensure that before a driver returns to duty requiring the performance of asafety-sensitive function after engaging in prohibited conduct concerning controlled substances, the driver shall undergo areturn- to-duty controlled substances test with a result indicating a verified negative result for controlled substances use. G. Follow-up Testing 1. Following 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 substances testing as directed by a substance abuse professional. 2. Follow-up .alcohol testing shall be conducted only when 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 safety-sensitive functions. VI. HANDLING OF TEST RESULTS, RECORD RETENTION AND CONFIDENTIALITY A. Records -Department of Transportation .Rules and Regulations as follows are incorporated by reference: Section 382.401 Retention of Records. Section 382.403 Reporting of results in a Management Information System. • 21277 11 Section 382.405 Access to Facilities and Records. Section 382.407 Medical Review Officer Notifications to the Employer. Section 3$2.409 Medical Review Officer Record Retention for Controlled Substances. B. Notification -The City shall notify the driver of the results of random reasonable suspicion and post-accident tests for controlled substances conducted under § 382.411 if the test results are verified positive. The City shall also inform the driver which controlled substance or substances were verified as positive. • • 21271 12 APPENDIX A REFERRAL, EVALUATION, AND TREATMENT A. The City shall advise any driver who has violated subpart B of this policy of the resources available to the driver in evaluating and resolving problems associated with the misuse of alcohol and the use of controlled substances. The City shall provide the driver with names, addresses, and telephone numbers of substance abuse professionals and counselling and treatment programs. B. Each driver who violates part B of 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 substances use. C. Evaluation 1. Before a driver returns to duty requiring the performance of a safety sensitive function after engaging in conduct prohibited by part B of this policy, the driver shall undergo areturn-to-duty alcohol test with a result indicating an alcohol concentration of less than .02 if the conduct involved alcohol, or a controlled substances: test with a verified negative result if the conduct involved a controlled substance. 2. In addition to the previous paragraph, each driver identified as needing assistance in resolving chemical problems: a. shall be evaluated by a substance abuse professional to determine that the driver has properly followed any rehabilitation program prescribed under paragraph b of this section, and b. shall be subject to unannounced follow-up tests administered by the City following the driver's return to duty. The City shall follow the testing frequency and methodology requirements of 49 CFR 382.605. D. The City may elect to provide the evaluation and rehabilitation required by this section; however, the City must use a substance abuse professional. The assignment of costs shall be made in accordance with employer/driver agreements and employer policies . E. If the City decides to provide the requisite evaluation and rehabilitation functions, the City can not allow the substance abuse professional to refer patients to the 21271 A-1 professional's private practice or to an outfit from which the professional receives remuneration. F. The requirements of this Appendix do not apply to applicants who refuse to submit to apre-employment testing or who have apre-employment alcohol test with a result indicating an alcohol concentration of .04 or greater or a controlled substances test with a verified positive test result. 21271 A-2