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HomeMy WebLinkAbout1996-009 - ~ . . RESOLUTION NO. 96-9 Establishing Implementation Policy for the Federal OmnibusTransportation Testing Act BE IT RESOLVED by the City Council of the City of Stillwater, Minnesota that the Federal Omnibus Transportation Employee Testing Act and Related Regulations Implementation Policy as shown on the attached Exhibit "A" is hereby approved. Adopted by the Council this 2nd day of January 1996fk ~yor -i t!ff; (LJ,M/h City Clerk Attest: '--,. Exhibit IIAlI ~ CITY OF STillWATER FEDERAL OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT AND RELATED REGULATIONS IMPLEMENTATION POLICY POLICY: 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 Testing Act and the U,S, Department of Regulations, 49 C.F.R. Part 382. This policy is in addition to and separate from any other drug policy the City of Stillwater may adopt. Any questions related to this policy should be directed to the City Coordinator. SCOPE OF COVERAGE: This policy is applicable to every employee with a Commercial Drivers' License (CDL) who operates, is ready to operate or is available to operate commercial motor vehicles used in intra- or interstate commerce to transport passengers or property, and meets anyone of the following criteria: a. b. c. e d. e. Has a gross combination rate of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or The vehicle has a gross vehicle or combination weight greater than 26,000 pounds; or The vehicle carries hazardous material requiring placarding; or The vehicle is designed to transport 16 or more passengers, including the driver. A commercial vehicle does not include a fire truck or other emergency fire equipment. (Note: As of January 1, 1996, persons affected by this policy include the employees of the Public Works and Parks departments.) DEFINITIONS: Accident/ReDortable Accident - An occurrence involving a commercial motor vehicle operating on a public road which results in: a) a fatality; or b) receipt of a citation under State or local law for a moving traffic violation resulting from an accident; or c) bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or d) one or more motor vehicles incurring disabling damage as a result of the accident, requiring the vehicle to be transported away from the scene by a tow truck or other vehicle. All motor vehicle accidents shall be reported, regardless of the severity, immediately upon their occurrence. Alcohol and substance abuse testing will be conducted if the accident involves any of the situation listed above. . Alcohol - the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight 1 alcohols including methyl or isopropyl alcohol. - Alcohol Concentration (or content) - the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test under this procedure. Alcohol Use - the consumption of any beverage, mixture, or preparation, including any medication, containing alcohol. BAT (Breath Alcohol Technician) - 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 specimen by tracking its handling and storage from point of specimen collection to final disposition of the specimen. .cirl - the City of Stillwater. Confirmed Alcohol Test - a second test, following a screening test with a result of 0,02 or greater, that provides quantitative data of alcohol concentration. Confirmed Drug Test - 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 in chemical principal form that of the screen test in order to insure reliability and accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine). Confirmation Tests - for controlled substances, a third analytical procedure to reconfirm the presence of a specific drug or metabolite. If the rest result of the primary specimen is positive the driver may request that the MRO direct the split specimen be test in any different DHHS-certified laboratory for presence of the drug(s). ~ Consortium - an entity, including a group or association of employees 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 behalf of the employers. Controlled Substance - any drug is which is not legally obtainable or which is legally obtainable but either has not been legally obtained or is misused. The term includes, but is not limited to, marijuana, cocaine, stimulants, depressants, narcotics, hallucinogens, prescription drugs not properly used according to physician directions, prescription drugs not being used for prescribed purposes and prescription drugs procured by fraud. Driver/EmDlovee - 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 employer or who operate a commercial motor vehicle at the direction of or with the consent of the employer. 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, EBT (Evidential Breath Testing Device) - an EBT provided 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." 2 . ~ - . FWHA - The Federal Highway Administration. Job Aoolicant - a person who applies to becom~. an employee of the City of Stillwater and has received a job offer contingent upon the person passing a drug and alcohol test. Medical Review Officer (MRO) - a licensed physician who is knowledgeable in the medical use of prescription drugs and the pharmacology and toxicology of illicit drugs and has knowledge of substance abuse disorder and has appropriate medical training to interpret and evaluate a driver's confirmed positive test result together with driver's medical history and any other relevant biomedical information. Positive Test Result - a finding of the presence of a drug or the drug metabolite or alcohol in the sample tested in levels at or above the threshold detection levels set by the DHHS. Random Selection - a mechanism for selection of employees for testing where each employee has an equal chance of being tested each time selections are made. Reasonable Cause/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 two (2) supervisors or officials who have received training in the identification of behaviors indicative of drug and alcohol use. Refusal to submit (to an alcohol or a controlled substance test - when a driver: (1) fails to provide adequate breath for testing without a valid medical explanation after the driver has received notice of the requirement for breath testing; or (2) 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; or (3) engages in conduct that obstructs the testing process. Safety-Sensitive Function - any of the following: (1) all time at a carrier or shipper plant, termination, facility or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the City; (2) all time inspecting equipment as required by federal regulations or otherwise inspecting, servicing or conditioning any commercial motor vehicle at any time; (3) all driver time which shall mean all time spent at the driving controls of a commercial motor vehicle in operations; (4) 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 conforming to the requirements of federal regulations; (5) all time loading or unloading a commercial motor vehicle, being loaded or unloaded, remaining in readiness to operate a cor:nmercial motor vehicle, or in giving or receiving receipts for shipments loaded or unloaded; (6) all time spent performing the driver requirements of the federal statutes related to accidents; 3 (7) all time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle. - 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 the driver's system. In controlled substance testing, it means an immunoassay screen to eliminate "negative" urine specimens from further consideration. Substance Abuse Professional (SAP) - a licens,ed physician or a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission) with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorder. PROHIBITED CONDUCT Conduct Related to Alcohol: 1 . 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 hours following administration of the test and the driver will not be compensated during the time off. The driver may use accumulated vacation or compensatory time leave hours during the absence if accrued and available. A detectable alcohol concentration level is in violation of City policies and actions also may be taken under those policies, which may be in addition to this policy. 2. 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. ~ 3. 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. 4. No driver shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol in any quantity unless the alcohol is manifested and transported as part of a shipment. This includes the possession of medicines containing alcohol (prescription or over-the-counter), unless the packaging seal is unbroken.. 5. No driver shall use alcohol while performing safety-sensitive functions. 6. 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. 7. No driver shall perform safety-sensitive functions within four hours after using alcohol. 8. The City, having actual knowledge that a driver has used alcohol within four hours, shall not permit a driver to perform or continue to perform safety~sensitive functions. 9. No driver required to take a post-accident alcohol test because of loss of human life or who 4 . ~ - . receives a citation under state or local law for a moving traffic violation ansmg from an accident shall ,use alcohol for eight (8) hours following the accident, or until the driver undergoes a post-accident test, whichever ,iccurs first. 10. No driver shall refuse to submit to a post-accident alcohol test, a random alcohol test, a reasonable suspicion alcohol test, or a follow-up alcohol test mandated by this policy and federal law. 11. 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 1. 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. Misuse of any controlled substance is a violation of City policies and actions may be taken under those policies, which may be in addition to this policy. 2. The City, having actual knowledge that a driver has used a controlled substance, shall not permit the driver to perform or continue to perform a safety-sensitive function unless use is permitted pursuant to the written instruction of the physician. 3. A driver shall inform the driver's supervisor of any therapeutic drug use. 4. No driver shall report for duty, remain on duty, or perform a safety-sensitive function, if the driver tests positive for controlled substances. 5. 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 safety-sensitive function. 6. No driver shall refuse to submit to a post-accident controlled substance test, a random controlled substance test, a reasonable suspicion controlled substance test, or a follow-up controlled substance test mandated, by this policy and federal law; such refusal shall be considered a positive test result. 7. The City shall not permit a driver who refuses to submit to such controlled substance tests to perform or continue to perform safety-sensitive functions. CONSEQUENCES TO EMPLOYEES ENGAGING IN PROHIBITED CONDUCT 1. Discioline. Any person found to be in violation of this policy is subject to discipline up to and including discharge. Disciplinary actions taken pursuant to this policy are appealable pursuant to the procedures established in the City's Policy and Procedures Manual or any applicable collective bargaining agreement, but not both. Nothing in this policy limits or restricts the right of the City to discipline or discharge an employee for conduct or behavior which otherwise violates the City's policies, procedures or rules, provided the employee is not tested for controlled substances or alcohol. 2. Removal from safetv sensitive oositions. Except as provided in federal law, no driver shall be 5 allowed to perform safety sensitive functions, including driving a commercial 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. e 3. Refusal to submit to testing. All applicants and employees have the right to refuse to undergo drug and alcohol testing. If an individual refuses to undergo drug and alcohol testing required by this policy, no such test will be given. However, an applicant who refuses such testing shall be deemed to have withdrawn the application of employment and shall be disqualified from further consideration of employment. Any employee refusing to take such test required by this policy shall not be permitted to perform safety sensitive functions and will be considered insubordinate and will be subject to disciplinary action including possible dismissal. 4. Pre-emplovmentliob oromotion testina. The City will not withdraw an offer of employment or promotion to a driver position made contingent on the applicant passing drug or alcohol testing based on a confirmatory test. Where there has been a confirmatory test and a re-conformatory retest (controlled substance only), the City will withdraw the contingent offer of employment or promotion to a driver position if the City determines that in accordance with the Minnesota Human Rights Act that alcohol or drug abuse prevents the applicant from performing the safety- sensitive functions of the job in question. 5. Other tests. The City will not discharge, discipline, discriminate against, or request or require the rehabilitation of a driver 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 and in any confirmatory retest (controlled substance only) the city may do the following: a. For first oositive 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. The City may determine which program may be more appropriate after consultation with a Substance Abuse Professional (SAP) or physician trained in the diagnosis and treatment of chemical dependency. Participation in a counseling or rehabilitation program will be at the driver's own expense or pursuant to coverage under the driver's own health care plan. - If the driver refuses to participate in a 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 follow-up 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 driver shall be dismissed from employment. b. F9r second oositive test result. If alcohol or drug abuse prevents the driver from performing the safety sensitive functions after a second positive test result the driver shall be subject to disciplinary action including possible discharge from employment. c. Follow-uo testing, The employee shall be subject to unannounced alcohol and controlled substance use testing. 6. Referral. evaluation and treatment. a. Resource advisory. Each driver who engages in conduct prohibited by federal law and this policy shall be advised by the City of the resources available to the driver in 6 . - e . evaluating and resolving problems associated with the misuse of controlled substances, including the names addresses, telephone numbers Substance Abuse Professionals and counseling treatment programs. b. Evaluation Abuse Professional. Each driver who engages in 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 to resolve problems associated with alcohol misuse and controlled substance use. Nothing in this policy shall limit 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 other incident, including, but not limited to a conviction of any criminal drug statute for a violation occurring at the workplace. CIRCUMSTANCES UNDER WHICH DRUG AND ALCOHOL TESTS SHALL BE REQUIRED OR REQUESTED During the Aoolication Process - All job applicants, including persons currently employed by the City of Stillwater, applying for a job where duties include operating the City's commercial motor vehicles are required to undergo testing for drugs if a job offer is made. The job offer is 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 tests results, and refusals to be tested, within the preceding two years. Reasonable Susoicion 1. Citv's Determination of Reasonable Susoicion of Alcohol or Controlled Substance Violations - The City shall require a driver to submit to an alcohol test when the departmental supervisor has reasonable suspicion to believe that the driver has violated the provision 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, 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. 2. Trained Supervisor of Emolovee - The required observations for alcohol 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 persons who make 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. 3. Timing of Reasonable Susoicion Observations - Alcohol testing is authorized by federal law and this policy only if the observations required by paragraph 1. above are made during, just proceeding, or just after the period of the work day 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 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 safety-sensitive functions or while the driver is in a state of readiness to drive. 4. Citv Drua and Alcohol Testing Policv - If the driver is not performing safety-sensitive functions 7 and reasonable suspicion exists, drivers may be tested for drugs and alcohol under the City of Stillwater Drug and Alcohol Testing policy. e 5. Prompt Administration of Test - if an alcohol test required by federal law and this policy is not administered within two (2) hours following the determination of reasonable suspicion, the City shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If 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 an alcohol test and shall state in the record the reasons for not administering the test. 6. 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: a) An alcohol test is 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 the driver has violated the prohibitions of this policy and federal law concerning the use of alcohol. 7. Written Records of Observations - A written record (attached) 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. e Return to Duty Testin9 - An employee found to have violated this policy shall not return to work until after undergoing return-to-duty tests indicating an alcohol concentration of less than 0.02 and a verified negative result for controlled substances. Follow-uD Testing - Following a determination by a SAP that an employee is in need of assistance in resolving problems with alcohol abuse or and/or controlled substances use, an employee shall be subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the SAP. Follow-up testing shall not exceed sixty (60) months from the date of the employee's return to duty. Random Testing - Through a consortium, the City will receive the names of randomly-selected drivers subject to this policy for unannounced alcohol and controlled substances testing using a computer- based random number generator that is matched with the employee's identifying number. Alcohol testing shall be performed just before, during or after the driver's performance of safety-sensitive duties. Drivers selected for testing must proceed immediately to the testing site; provided, however, that if an employee is performing a safety-sensitive function at the time of notification, driver shall cease performing the safety-sensitive function and proceed to the testing site as soon as possible. FWHA rules requires the City to conduct random controlled substances testing on 50% of the average number of employees and random alcohol testing on 25% of the average number of drivers. Drivers may be selected for more than one test per year. Tests shall be spread reasonably throughout the year. Post-Accident - A City employee is required to submit to a controlled substance and/or alcohol test 8 . ~ - . following an accident involving a loss of a human life, and/or a citation resulting from the accident, and/or bodily injury that requires immediate medical attention away from the scene and/or one or more vehicles, either county-owned or other, incurring disabling damage (not able to move on own power) as a result of the accident; the City may also test Llhder the City's Drug Testing Policy. The driver shall be responsible for contacting the supervisor as soon as possible following the accident. The supervisor is responsible, after being notified, for ensuring that drug and alcohol testing is completed as outlined by this policy. The supervisor or a City official will provide transportation to and from the collection site. The driver may not use alcohol for eight (8) hours following an accident, or until the driver undergoes a post-accident test, which ever occurs first. A driver 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 such testing. However, nothing in this section shall be construed to require the delay of necessary medical attention for persons injured in the accident or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to an accident, or to obtain necessary emergency medical care. Alcohol testing must occur within two (2) hours of the accident. If testing is not administered within two hours, a documented explanation must be provided. If the alcohol testing is not administered within eight (8) hours, it can no longer be pursued and the reasons documented. Controlled Substance testing must occur within 32 hours after the accident. If the testing is not administered within 32 hours, it can no longer be pursued and the reasons documented. Breath or blood alcohol tests conducted by on-site federal, state or local law enforcement having independent authority will be acceptable provided such tests conform to applicable federal, state or local law, and the results of the test are obtained by the City in situations where that test can be administered earlier than the City can get to the scene or when an alcohol test cannot be conducted by the City within eight hours. Any driver subject to post-accident testing who leaves the scene of an accident before a test is administered or fails to remain readily available for testing may be deemed to have refused to submit to testing unless the person leaves the scene to receive emergency medical attention or the driver must leave the scene of an accident necessary to obtain assistance. The City of Stillwater will provide necessary post-accident information, procedures, and instructions to the driver prior to operating a commercial motor vehicle. DRUG AND ALCOHOL TESTING: Controlled substances testing is conducted by analyzing an employee's urine specimen. Split urine samples will be collected according to FHWA regulations. The employee will provide a urine sample at a designated collection site. The collection site person shall pour the urine specimen into two bottles labeled "primary" and "split", seal the specimens, complete a chain of custody document and prepare the bottles for shipment to the testing laboratory for analysis. If the employee is unable to provide the appropriate quantity of urine, the collection site person shall instruct the employee to drink not more than 24 ounces of fluids and, after a period of no more than two hours, again attempt to provide a complete sample. If the employee is still unable to provide a complete sample, the testing shall be discontinued and the City notified. The MRO shall refer the employee for a medical evaluation to determine if the employee's inability to provide a specimen is 9 genuine or constitutes a refusal to test. For pre-employment testing, the City may elect to not have the referral made and revoke the employment offer. e Drug test results are reported directly to the MRO by the testing laboratory. The MRO reports the results to the City's designated contact person. If the results are negative, the City is informed and no further action is necessary. If the test result is confirmed positive, the MRO Shall give the employee an opportunity to discuss the test result. The MRO must review any medical records supplied by an employee to determine if a confirmed positive test is the result of the employee having taken legally prescribed medication. The MRO shall notify each employee that the employee has 72 hours in which to request a test of the split specimen at the employee's expense. The MRO will contact the employee directly, on a confidential basis, to determine whether the person wishes to discuss the positive test result, The MRO will review the confirmed positive test result to determine whether there is an acceptable medical reason for the positive result. The MRO shall verify and report a positive test result to the CitY when there is no legitimate medical reason for a positive test result as received from the testing laboratory. If after making reasonable efforts and documenting these efforts, the MRO is unable to reach the employee directly, the MRO must contact the designated City contact person, who shall direct the employee to contact the MRO. If the City contact person is unable to contact the employee, the employee will be placed on suspension. The MRO may verify a test positive without having communicated directly with the employee about the test results under the following circumstances: 1. The employee expressly declines the opportunity to discuss the test results. e 2. The employee has not contacted the MRO within five (5) days of being instructed to do so by the City. The FWHA alcohol test rules require breath testing administered by a SAT using an EST. Two breath tests are required to determine if a person has a prohibited alcohol concentration. Any result 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 an employee attempts and fails to provide an adequate amount of breath, the City will direct the employee to obtain written evaluation from a licensed physician to determine if the employee's inability to provide a specimen is genuine or constitutes a refusal to test. Alcohol test results are reported directly to the designed City contact person. LICENSED TESTING LABORATORY - The testing laboratory shall be Medtox Laboratories, Inc., 402 West County Road D, ST. Paul, Minnesota 55112, 800-832-3244, 612~636-7466, which is a lab certified to perform controlled substance testing according to DHHS regulations. REFUSAL TO UNDERGO TESTING AND CONSEQUENCES OF REFUSAL: All applicants and employees have the right to refuse to undergo drug and alcohol testing. If an individual refuses to undergo drug and alcohol testing required by this policy, no such test shall be given. An applicant who refuses to take a drug and alcohol test shall be disqualified from further consideration 10 . ~ - a ,., for the conditionally-offered position. An employee refusing to take a drug and alcohol test required by this policy shall not be permitted to perform safety sensitive functions and will be considered insubordinate and will be subject to disciplinary action including possible dismissal. EMPLOYEE/APPLICANT RIGHTS - All applicants and employees subject to the drug testing provisions of this policy have the right to request, at employee or applicant expense, a retest of the split urine sample within 72 hours of receiving notice of a confirmed positive test result. If the employee requests an analysis of the split specimen within seventy-two (72) hours of having been informed of a verified positive test, the MRD shall direct, in writing, the laboratory to provide the split specimen to another DHSS-certified laboratory for analysis. If an employee has not contacted the MRD within seventy-two (72) hours, the employee may present to the MRD information documenting that serious illness, injury, inability to contact the MR, lack of actual notice of the verified positive test, or other circumstances unavoidably prevented the employee from timely making contact. If the MRD concludes that there is a legitimate explanation for the employee's failure to contact within seventy- two (72) hours, the MRD shall direct the analysis of the split specimen. If the confirming retest is negative, no adverse action will be taken against the employee and an applicant will be considered for employment. The City will not discharge an employee that, for the first time, receives a certified positive drug or alcohol test result unless: 1. the employee refuses to meet with a substance abuse professional for the purpose of an evaluation for alcohol/controlled substance use/abuse and recommendations for an education, counseling or treatment program; or 2. the employee fails to enter the recommended program, or fails to successfully complete the program; or 3. the employee fails a return to duty alcohol and controlled substance test at the successful completion of the recommended program or subsequent unannounced follow-up alcohol and controlled substance testing. EVALUATION AND REHABILITATION - Dn a first occurrence, the evaluation will be provided by the City's Employee Assistance Program. Any recommended participation in counseling or rehabilitation programs will be at the employee's own expense or pursuant to coverage under the employee's benefit plan. DISCIPLINE - Any person found to be in violation of this policy is subject to discipline up to and including discharge. Disciplinary actions taken pursuant to this policy are appealable pursuant to the procedures established in the City's Policy and Procedures Manual or any applicable collective bargaining agreement, but not both. Nothing in this policy limits or restricts the right of the City to discipline or discharge an employee for conduct which violates the City's policies or rules provided the employee is not tested for controlled substances or alcohol. 11 APPEALS PROCEDURE a. Concerning disciplinary actions taken pursuant to this policy implementing the Federal Omnibus Transportation Employee Testing Act and Related Regulations, appeal procedures available to employees are as follows: 1. Non-veterans on orobation. An employee who has not completed the probationary period and who is not a veteran has no right of appeal. 2. Non-veterans after orobation. A regular employee who has completed the probationary period and who is not a veteran has a right to appeal to the City Administrator no later than 15 calendar days of the action, or the employee may utilize the grievance procedure included in the applicable collective bargaining agreement. 3. Veterans. An employee who is a veteran has a right to appeal to the City Coordinator a permanent demotion (including salary decreases), or a discharge, if the employee submits a notice of appeal within sixty calendar days of the action, regardless of status with respect to the probationary period. An employee who is a veteran may have additional rights under the Veterans Preference Act, Minn. Stat. 197.46. b. All notices of appeal not covered under a collective bargaining agreement must be submitted in writing to the City of Stillwater City Coordinator, 216 North 4th Street, Stillwater, MN 55082, which shall provide 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 taking an appeal to the City Coordinator: CONFIDENTIALITY OF TEST RESULTS - All alcohol/controlled substances test results and required records are considered confidential information. Any information concerning an individual's test results and records will be maintained in the City's Personnel (Administration) Department and shall not be released without the written permission of the individual except as provided for by regulation or law. ALCOHOL AND CONTROLLED SUBSTANCE CONTACT PERSON - The City Coordinator or his/her designee will coordinate the implementation, direction, and administration of the City's alcohol and controlled substances policy. The City Coordinator is the principal contact for the collection site, the testing lab, the MRO, the BAT and the person tested. Employee questions concerning this policy should be directed to the City Coordinator. POLICY MODIFICATION - The City of Stillwater retains the right to modify this policy to conform to changes in regulation or law. 1 \2\96 12 - e .