CITY OF LODI

ADMINISTRATIVE POLICY AND PROCEDURE MANUAL

SUBJECT: : DRUG AND ALCOHOL TESTING - Policy

DATE ISSUED: : May 7, 2008

SECTION: : D

REFERENCE: : US DOT (FTA) 49 CFR Part 40;

49 CFR Part 655

49 CFR Part 382

49 CFR Part 29

Omnibus Transportation Employee Testing Act of 1991

SECTION 1: PURPOSE

The City of Lodi is committed to providing safe and efficient public services in fulfilling our responsibilities to the citizens of our community. To achieve this purpose, it is the policy of the City to:

Provide a workplace free from the adverse effects of drug and alcohol abuse or misuse;

Assure that employees are not impaired in their ability to perform assigned duties in a safe and productive manner;

Encourage employees to seek professional assistance for drug and alcohol abuse or dependency;

Comply with all Federal and State regulations requiring a drug-free workplace.

Coverage under this policy does not exempt covered employees from compliance with the City’s Drug-Free Workplace Policy and Procedure. The obligations and requirements set forth below are in addition to existing obligations and requirements set forth in the Drug-Free Workplace Policy and Procedure.

SECTION 2: EMPLOYEE ASSISTANCE PROGRAM

The City has established a voluntary Employee Assistance Program (EAP) to aid those employees who voluntarily seek help for alcohol or drug problems. Employees should contact their supervisors, the EAP provider, or the Human Resources Division for additional information.

Employees who think they may have an alcohol or drug usage problem are encouraged to voluntarily seek confidential assistance from the EAP or other available resources. Employees who voluntarily come forward and seek assistance will not be disciplined solely for having or admitting a drug or alcohol problem. The City will take into consideration employees’ performance problems caused by such dependency. The voluntary seeking of treatment shall not provide immunity from disciplinary action which were proposed or in process. However, action on related problems may be postponed pending successful resolution of the usage problem. Successful completion of a drug or alcohol treatment program shall be considered when determining disciplinary actions. While the City will be supportive of those who seek help voluntarily, the City will be equally firm in identifying and disciplining those who continue to be substance abusers and do not voluntarily seek help or continue substance abuse even while enrolled in counseling or rehabilitation programs.

SECTION 3: CITY ADMINISTRATOR

The Human Resources Division is designated to administer this policy and procedure and to answer questions concerning its implementation. The Human Resources Division may be contacted as follows:

City of Lodi

P.O. Box 3006

Lodi, CA 95241-1910

Phone: (209) 333-6704

SECTION 4: COVERED EMPLOYEES

Employees in classifications listed in Appendix A are “covered employees” because they perform “safety sensitive functions” as described in Section 6 below, and thus are subject to all of the provisions of this policy.^{^[1]}^[1]

An employee may be given a written exemption from this Policy by Human Resources, if the employee’s job duties do not include performing a “safety sensitive function.”

SECTION 5: DEFINITIONS

Accident: Means an occurrence associated with the operation of a vehicle, if as a result:

1) An individual dies;

2) An individual suffers a bodily injury and immediately receives medical treatment away from the scene of the accident;

3) One or more vehicles incur disabling damage as the result of the occurrence and are transported away from the scene by a tow truck or other vehicle. For purposes of this definition, “disabling damage” means damage which precludes departure of any vehicle from the scene of the occurrence in its usual manner in daylight after simple repairs. Disabling damage includes damage to vehicles that could have been operated but would have been further damaged if so operated, but does not include damage which can be remedied temporarily at the scene of the occurrence without special tools or parts, tire disablement without other damage even if no spare tire is available, or damage to headlights, taillights, turn signals, horn, or windshield wipers that makes the inoperative; or

4) When a State or local law enforcement authority issues a citation to the covered employee for a moving violation arising from the accident.

Alcohol: The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols including methyl and isopropyl alcohol.

Alcohol Concentration: The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by a breath test.

Alcohol Use: The consumption of any beverage, mixture, or preparation, including any medication, containing alcohol.

Breath Alcohol Technician (BAT): An individual who instructs and assists individuals in the alcohol testing process and operates an evidential breath testing device (EBT).

Chain of Custody: Procedures to account for the integrity of each urine or blood specimen by tracking its handling and storage from point of specimen collection to final disposition of the specimen.

Confirmation (or confirmatory) Test: For alcohol testing means a second test, following a screening test with a result of 0.01^{^[2]}^[2] 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.

Controlled Substance (drug): Any illegal drug or any substance identified in schedules I through V of the Controlled Substances Act as they may be amended. This includes, but is not limited to: marijuana (THC metabolite), amphetamines, opiates (including Heroin), phencyclidine (PCP), and cocaine, as well as any drug not approved for medical use by the U.S. Drug Enforcement Administration or the U.S. Food and Drug Administration. Illegal use includes use of any illegal drug, misuse of legally prescribed drugs, and use of illegally obtained prescription drugs. Substances for testing will only be added to the panel for testing only with agreement of the affected collective bargaining units or as required by the appropriate regulatory agency.

Evidential Breath Testing Device (EBT): A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHSTA’s “Conforming Products List of Evidential Breath Measurement Devices” (CPL).

Medical Review Officer (MRO): A licensed physician responsible for receiving laboratory results generated by the City’s Drug-Free Workplace and Drug and Alcohol Testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s confirmed positive test result together with his/her medical history and any other relevant biomedical information.

Performing a Safety-Sensitive Function: An employee is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety-sensitive function.

Screening Test (also known as initial test): In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath specimen. Testing is only permitted just before, during, and just after the performance of safety-sensitive duties. In controlled substance testing, an immunoassay screen to eliminate “negative” urine specimens from further analysis.

Substance Abuse Professional(SAP): A SAP

SECTION 6: SAFETY-SENSITIVE FUNCTIONS

A safety sensitive function is driving one of the following vehicles:

A. a vehicle with a gross combination weight of at least 26,001 pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;

B. a vehicle with a gross vehicle weight of at least 26, 001 pounds;

C. a vehicle designed to transport 16 or more passengers, including the driver; or

D. a vehicle used to transport those hazardous materials found in the Hazardous Materials Transportation Act.

SECTION 7: PROHIBITIONS

The following conduct is prohibited and may result in disciplinary action, up to and including termination:

A. Reporting for duty or remaining on duty requiring the performance of safety sensitive functions while having an alcohol concentration of 0.04 or greater;

B. The use of alcohol within the four (4) hours preceding the performance of safety-sensitive functions, and the allowance of an employee to perform safety-sensitive functions with the knowledge that the employee has used alcohol within that time frame.

Employees who are in a “stand-by” status, shall not use alcohol or controlled substances while in such status. Employees who may be subject to “call-out” for emergency situations, and who may be the only qualified employee available for such duty, and who has used alcohol, may respond to such calls under the following guidelines:

(1) That the employee immediately notify the supervisor of the use of alcohol within the last four hours and the determination for the employee to respond is approved by the supervisor; (2) That the employee perform simple tasks of minimal risk to the safety sensitive functions(s); and (3)That the employee does not use alcohol after he/she has been notified to report for emergency duty.

C. Being on duty or operating a vehicle described in Section 4 above, while possessing alcohol;

D. Using alcohol while performing a safety sensitive function;

E. Reporting for duty or remaining on duty requiring the performance of safety sensitive functions when the employee used any controlled substances, except if the use is pursuant to the instructions of a physician who has advised the employee that the substance does not adversely affect the employee’s ability to safely operate a vehicle; or DOT funded equipment and machinery.

F. Reporting for duty or remaining on duty requiring the performance of safety sensitive functions if the employee tests positive for controlled substances;

G. Refusing to submit to any alcohol or controlled substances test required by this policy. Such refusal (see Section 8) shall be considered an act of insubordination. The consequences for a refusal to submit to a required test are the same as if the employee had tested at 0.04 or greater or had violated any of the other prohibitions in this policy.

H. The allowance of an employee to perform or continue to perform safety-sensitive functions after having knowledge of the employee’s use of alcohol or controlled substances while on duty.

I. An employee who has actual knowledge of an accident in which his/her performance of a safety-sensitive function has not been discounted by the City as a contributing factor to the accident is prohibited from using alcohol for eight (8) hours following the accident. The prohibition ends eight (8) hours after the accident (i.e. when a test is no longer required), once the employee has taken a post-accident test, or once the City has determined that the employee’s performance could not have contributed to the accident.

SECTION 8: REFUSAL TO SUBMIT TO AN ALCOHOL AND/OR DRUG TEST

A refusal to submit to an alcohol or controlled substances test required by this policy includes, but is not limited to:

A. A refusal to provide a urine sample for a drug test.

B. An inability to provide a urine sample without a valid medical explanation;

C. A refusal to complete and sign the breath alcohol testing form, or otherwise to cooperate with the testing process in way that prevents the completion of the test;

D. An inability to provide breath or to provide an adequate amount of breath without a valid medical explanation;

E. Tampering with or attempting to adulterate the urine specimen or collection procedure;

F. Not reporting to the collection site in the time allotted by the supervisor or manager who directs the employee to be tested;

G. Leaving the scene of an accident without a valid reason as to why authorization from a supervisor or manager who shall make a determination whether to send the employee for a post-accident drug and/or alcohol test was not obtained.

H. A failure to undergo medical examination.

I. A failure to permit monitoring/observation.

J. A failure to take a second test.

K. Providing a verified adulterated or substituted sample.

L. A failure to remain until the testing process is complete.

SECTION 9: CONSEQUENCES FOR EMPLOYEES FOUND TO HAVE ALCOHOL CONCENTRATION LEVELS OF 0.01 OR GREATER BUT LESS THAN 0.04

An employee whose alcohol test indicates an alcohol concentration level between 0.01 and 0.04 will be removed from his or her safety sensitive position for at least twenty-four (24) hours.

SECTION 10: CIRCUMSTANCES UNDER WHICH DRUG AND ALCOHOL TESTING WILL BE IMPOSED ON COVERED EMPLOYEES

A. Pre-Employment Testing: All applicants for classifications which are covered by the appropriate Department of Transportation regulations (See Section 4 above), as well as all employees who transfer from classifications which are not covered to classifications which are covered, will be required to submit to pre-employment/pre-duty drug and alcohol testing. Applicants/employees will not be assigned to a safety sensitive position until after a verified negative drug test result.

If the applicant has previously worked for a DOT employer and has previously failed or refused a pre-employment drug test administered under this part within the past two years, the applicant is not eligible for the position.

If a pre-employment drug test is canceled, the City shall require the covered employee or applicant to take another pre-employment drug test administered under this part with a verified negative result.

When a covered employee or applicant has not performed a safety-sensitive function for 90 consecutive calendar days regardless of the reason, and the employee has not been in the City’s random selection pool during that time, the City shall ensure that the employee takes a pre-employment drug test with a verified negative result.

B. Post-Accident Testing: Post-Accident drug and alcohol testing will be conducted on employees following an accident where the employee’s performance cannot be discounted as a contributing factor.

The decision as to whether or not to test the employee will be made by a supervisory and/or management employees. The presumption is for testing. The only reason an employee will not be tested following an accident is if a determination is made that the employee’s performance could not have been a contributing factor. 49 CFR part 655 criteria for testing is a fatality, the need for medical attention away from the scene, and/or disabling damage to the vehicle. An employee must receive emergency medical care before being required to submit to a post accident drug and alcohol test.

Post-accident alcohol tests shall be administered within two (2) hours following an accident and no test may be administered after eight (8) hours. A post-accident drug test shall be conducted within thirty-two (32) hours following the accident. If the appropriate test is not administered within two (2) hours following the accident, the employee’s supervisor shall immediately provide written documentation to the Human Resources Manager stating the reasons why the test was not promptly administered.

C. Random Testing: Covered employees will be subject to random alcohol and drug testing as follows:

(1) A random alcohol test will be administered during any period in which the employee is ready to perform, immediately available to perform, is actually performing, or just after the employee has ceased performing safety-sensitive functions. Please refer to the definition of “Performing a Safety-Sensitive Function” in Section 5 of this policy.

(2) Testing rates are determined by the appropriate regulatory agency.

(3) The selection of employees for random drug and alcohol testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator. Each covered employee shall have an equal chance of being tested each time selections are made.

(4) On the day the employee is selected for random drug testing, his/her supervisor will ensure his/her duties are covered. The employee will receive a written notice indicating the time he/she is to report to the lab for testing.

(5) The City shall ensure that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.

(6) Random tests are unannounced and immediate. There is an equal chance of selection on each draw with no discretion on the part of management.

D. Reasonable Suspicion Testing: Covered employees are also required to submit to an alcohol or drug test when a trained supervisor has reasonable suspicion to believe the employee is under the influence of alcohol or controlled substances. The observation must be based on short-term indicators, such as blurry eyes, slurring, or alcohol on the breath.

A covered employee shall only be randomly tested for alcohol misuse while the employee is performing safety-sensitive functions; just before the employee is to perform safety-sensitive functions; or just after the employee has ceased performing such functions.

To ensure that supervisors are trained to make reasonable suspicion determinations, supervisors vested with the authority to demand a reasonable suspicion drug and alcohol test will attend at least one hour of training on alcohol misuse and at least one hour of training on controlled substances use. The training will cover the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.

SECTION 11: CONSEQUENCES OF FAILING AN ALCOHOL AND/OR DRUG TEST

A positive result from a drug or alcohol test shall result in the mandatory removal of the employee from the safety-sensitive position. Consequences may include discipline, up to and including termination. An employee that produces a dilute negative specimen will be required to take another test immediately.

SECTION 12: COSTS OF TESTING

Where there is testing for reasonable cause, the employee shall be placed on paid administrative leave pending the outcome of the test.

Time spent in conjunction with pre-duty, post-accident, random and reasonable suspicion testing shall be considered as paid time. The City shall also pay for the costs of these tests. The time an employee is removed from safety-sensitive functions is borne by the employee. Such employee may use accrued time including sick leave to cover the absence.

SECTION 13: INFORMATION CONCERNING THE EFFECTS OF ALCOHOL AND CONTROLLED SUBSTANCES AND AVAILABLE METHODS OF INTERVENTION

Available from the Personnel Department are Fact Sheets addressing the effects of alcohol and the various controlled substances which are tested for under this Policy.

SECTION 14: EMPLOYEE REPRESENTATION

Employees shall have the right to representation only during discussions with management prior to a reasonable suspicion test. If a shop steward is not available, an available department employee may be selected to represent the interests of said employee. Such contact shall not, in any way, delay or interfere with the implementation of this policy and its procedure.