EXECUTIVE ORDER NO. 95-01
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
PHIL BREDESEN, MAYOR
Subject: Alcohol And Controlled Substance Testing For Safety-Sensitive Positions.
WHEREAS, the Omnibus Transportation Employee Testing Act of 1991 requires alcohol and drug testing of safety-sensitive employees in the aviation, motor carrier, railroad and mass transit industries; and
WHEREAS, the Department of Transportation published rules mandating anti drug and alcohol misuse prevention programs in February, 1994; and
WHEREAS, the published rules generally require implementation beginning on January 1, 1995 for large employers with fifty (50) or more safety-sensitive drivers; and
WHEREAS, The Metropolitan Government of Nashville and Davidson County (Metropolitan Government) is considered a large employer subject to the January 1, 1995 deadline; and
WHEREAS, the Metropolitan Charter has granted powers and duties to oversee employment matters to the Metropolitan Civil Service Commission, the Metropolitan Board of Health, the Metropolitan Board of Hospitals, and the Metropolitan Board of Public Education; and
WHEREAS, the provisions of the Omnibus Transportation Employee Testing Act of 1991 apply to some employees not covered by one of these boards or commission of the Metropolitan Government; and
WHEREAS, there is a need to adopt guidelines implementing the provisions of the Omnibus Transportation Employee Testing Act of 1991 to all applicable employees of the Metropolitan Government not covered by one of these boards or commissions (excluding Nashville Electric Service and Metropolitan Development and Housing Agency).
NOW, THEREFORE, I Philip Bredesen, Mayor of The Metropolitan Government of Nashville and Davidson County, by virtue of the power and authority vested in me, do hereby direct and order that the employees identified below will be covered by the general policy and all provisions and procedures set forth in this Executive Order:
I. General Policy
It is the policy of Metropolitan Government to maintain a workplace that is free from the effects of drug and alcohol abuse. Employees in safety-sensitive positions which require a Commercial Driver's License, and applicants for such positions, will be subject to controlled substances and alcohol testing. This testing is in compliance with the federal Omnibus Transportation Employee Testing Act of 1991 and related U.S. Department of Transportation rules and regulations.
II. Specific Prohibitions
No driver is allowed to possess alcohol products while operating a commercial motor vehicle or performing a safety-sensitive function.
No employee is allowed to report for duty or remain on duty under the following circumstances:
• While having alcohol in his/her possession
• While having a breath alcohol concentration of 0.04 percent or greater as indicated by an alcohol breath test. An employee shall be removed from a safety-sensitive function if s/he has a breath alcohol concentration of 0.02 or greater. Such employee is subject to retesting and may be referred for assessment.
• While using alcohol.
• Within four hours after using alcohol.
In addition, any employee is prohibited from refusing to submit to an alcohol test and from using alcohol within eight hours after an accident, unless the test has been completed.
B. Controlled Substances
Use or possession of illegal controlled substances by safety-sensitive drivers is prohibited on-duty or off-duty: no employee may have detectable levels of illegal substances while on-duty. Any unauthorized use of controlled substances is prohibited. No employee shall be allowed to perform a safety-sensitive function while impaired by medication, including over-the-counter medications. Any employee who is impaired by medication must notify his/her supervisor immediately. An employee may be required to provide a physician statement that medications prescribed and/or over-the-counter medications, do not adversely affect the employee's ability to operate a commercial vehicle. The supervisor shall take appropriate action such as approving leave or giving the employee an alternate assignment on a temporary basis.
III. Who is Subject to Testing
This policy requires testing of employees in safety-sensitive positions, who drive a commercial motor vehicle, and employees who perform safety-sensitive functions which require them to hold a Commercial Drivers License. Safety-sensitive functions are any of those on-duty functions set forth by the U.S. Department of Transportation in 49 CFR § 395.2, paragraphs (1) through (7). They include functions from the time an employee begins to work or is required to be in readiness to work until the time s/he is relieved from work and all responsibility for performing work. Safety-sensitive functions include the following:
waiting to be dispatched;
repairing and inspecting equipment;
performing or assisting in loading and unloading;
repairing or obtaining and waiting for help with a disabled vehicle; or
performing requirements related to accidents.
Employees in positions where operating a commercial motor vehicle is essential to the function, and the job description requires a Commercial Drivers License, are identified as regular drivers who are subject to the provisions of this policy. Supervisors are subject to testing as long as they oversee the work of drivers and may drive or perform other safety-sensitive functions when needed. Mechanics who repair and maintain Commercial Motor Vehicles, testing them on public roads, are also covered by this policy. A list of impacted classifications is given in Appendix 1. Other employees who hold a Commercial Drivers License may occasionally operate a Commercial Motor Vehicle, or be assigned to drive on a relief basis when a regular driver is not available. This pool of drivers must be designated and subject to testing prior to being assigned to perform a safety-sensitive function. The procedure for these drivers is outlined in Appendix 2.
IV. Tests Required - Tests for both alcohol and controlled substances shall be required for the circumstances listed below.
Tests will be conducted after a provisional offer of employment has been made and before an employee performs a safety-sensitive function for the first time. Tests must also be completed before an employee is promoted, transferred or assigned to a safetysensitive position and upon return to work when an employee has been on leave or otherwise out of the program for a period of six months or longer. A person will not be allowed to perform safety-sensitive functions unless the alcohol concentration is less than 0.04 and may be retested in 24 hours if the result is 0.02 or greater but less than 0.04. The controlled substances test must be negative as determined by applying limits set in the federal guidelines.
Alcohol and controlled substances tests will be conducted after accidents on drivers whose performance could have contributed to the accident, as determined by a citation for a moving violation, and for all fatal accidents, even if the driver is not cited. Tests should be done as soon as practicable after the accident although there should be no delay in any medical treatment required. Alcohol tests should be completed within two hours of the accident and in no event after eight hours and controlled substance tests will be administered within 32 hours of the accident.
C. Reasonable Suspicion
These tests shall be ordered when a trained supervisor observes and documents appearance, behavior, speech or body odors of an employee which are characteristic of the use of alcohol or controlled substances. Observations may include symptoms of chronic use or withdrawal. Trained supervisors must document these observations on an approved form. The Appointing Authority or his/her designee will review this documentation and pertinent information to ascertain the suspicion. If s/he agrees, s/he will order the employee to submit to a controlled substances and/or alcohol test. No employee shall be allowed to drive or perform any safety-sensitive function when suspected of being impaired until a test reports that the employee is medically qualified to drive.
Tests shall be ordered on a random, unannounced basis from the pool of employees identified as subject to this policy. Random selection of employees is done by an independent contractor using a statistically valid method, such as a computer-based listing of employees by social security or employee number.
At least twenty-five percent (25%) of employees will be tested annually for alcohol, with tests being done just before, during or after the performance of a safety-sensitive function.
At least fifty percent (50%) of employees shall be subject to testing for controlled substances, with test being performed at any time the employee is at work.
An employee notified by his/her supervisor to report for a controlled substances or alcohol test must go immediately to the collection site.
An employee's name remains in the pool after being tested so that every employee shall have an equal chance of being tested each time selections are made.
E. Return to Duty and Follow-up Testing
Return to Duty - Any employee who tests positive under this policy must test again before returning to a safety-sensitive function. This test must be no more than 0.02 for alcohol and negative for controlled substances.
Follow-up - Following a determination that an employee is in need of assistance in resolving problems associated with the use of alcohol or controlled substances, the employee id subject to unannounced testing. There must be at least six (6) tests within the first twelve (12) months after an employee returns to work. The length of time an employee is subject to follow-up testing and the number of tests required beyond the minimum six tests required is to be determined by the Substance Abuse Professional and shall not exceed sixty months.
V. How Tests Will Be Done
Testing for the use of alcohol will be done using evidential breath testing (EBT) devices approved by the federal government. A screening test will be conducted first and anything less than 0.02 is considered a negative test. If the alcohol concentration is 0.02 or greater, a second confirmation test must be conducted. The Metropolitan Government reserves the right to order a blood test as additional confirmation in extraordinary situations.
B. Controlled Substances
Controlled substance tests will be done by urinalysis and will check for the following drugs:
• Marijuana (THC metabolite);
• Amphetamines and Methamphetamines;
• Opiates (including heroin and codeine); and
• Phencyclidine (PCP).
Samples will be given at a collection site designated or approved by the Metropolitan Government, and analysis shall be conducted by a laboratory certified by the U.S. Department of Health and Human Services (DHHS). If a screening test is positive for a controlled substance, a confirmation test shall be performed using the gas chromatography/mass spectrometry (GC/MS) analysis.
C. Testing Procedures
An employee or applicant will be given a written order to report to a collection site for testing. S/he will then report to the collection site immediately with a picture identification. S/he will complete the chain of custody form and follow procedures established for the collection site. A summary of procedures are listed in Appendix 3.
A breath alcohol test (BAT) will be conducted at the site and/or when ordered, the employee will give a urine sample for controlled substances. The urine sample will be split in case of the possibility of retest. All test and laboratory procedures, including the chain of custody procedures, shall be those detailed in 49 CFR, Part 40 Procedures for Transportation Workplace Drug and Alcohol Testing Programs. These procedures are available for review in the Department of Personnel and in the office of the personnel manager for each department with employees subject to testing under this policy.
VI. Notification of Results and Role of the Medical Review Officer
All controlled substances tests shall be reviewed and interpreted by a physician designated as the Medical Review Officer before they are reported to the employer. If the laboratory reports a confirmed positive result to the Medical Review Officer, the Medical Review Officer shall contact the driver to determine if there is an alternative medical explanation for the substances found in the employee's urine specimen. If the employee provides appropriate documentation and the Medical Review Officer determines that there is legitimate medical use of the prohibited substances, the result shall be reported as negative to the employer although the employee may not be medically qualified to perform safety-sensitive functions. The department administrator will notify the employee of test results, and if positive, will inform the employee to contact the Medical Review Officer if the Medical Review Officer has been unable to contact the employee.
VII. Consequences of a Positive Test
A. Removal from Driving
An employee who tests positive for controlled substances or alcohol, refuses to submit to such tests, or attempts to tamper with the test shall be in violation of this policy and shall be removed from performing defined safety-sensitive functions pending further action. Refusal to submit includes failure to provide an adequate breath or urine sample for testing.
B. Removal from Register or List
Employees and applicants who have a confirmed positive pre-appointment test result for controlled substances or alcohol or refuse to test will be denied appointment and removed from the register or list.
C. Rehabilitation and/or Disciplinary Action
Employees who test positive on any test for controlled substances or alcohol, including pre-appointment tests, shall be subject to further action which may include rehabilitation and/or disciplinary action up to and including termination. Disciplinary action is at the discretion of the Appointing Authority. The Appointing Authority may take into account factors such as the circumstances which led to testing, the employee's work history, length of employment, job performance, and past corrective or disciplinary action.
VIII. Retest Provision
Breath alcohol tests shall be conducted and confirmed while the employee or applicant is present, eliminating the need for a retest. For controlled substances, an employee or applicant who has confirmed positive test results may request that the split sample be tested at a separate laboratory with federal certification. Such request must be made within seventy-two (72) hours of learning of the confirmed positive test. Any action required by this policy as the result of a positive test is not stayed pending the result of a test on the split sample.
All costs associated with the retesting of the split sample must be must be prepaid by the employee, including shipping and handling, transportation, testing and reporting to the Medical Review Officer. If the result of the retest is negative, these costs will be reimbursed to the employee.
IX. Return to Work and Follow-up
Employees with a confirmed positive test for controlled substances or alcohol will be referred to a Substance Abuse Professional for evaluation. No employee shall be allowed to return to a safety-sensitive position until s/he submits to a return to work test with confirmed negative test results and s/he is recommended by the Substance Abuse Professional to return In addition, any employee with a confirmed positive test shall be required to sign a Return-to-Work Agreement prior to his/her return to a safety-sensitive position.
Controlled substances and alcohol testing results and records shall be maintained under strict confidentiality by Metropolitan Government, the company contracting to administer the testing program, the testing laboratory, and the Medical Review Officer. These results cannot be released to others without the written consent of the employee. Exceptions to these confidentiality provisions shall be limited to a decision-maker in litigation or administrative proceedings or officials designated in the federal regulations. Statistical records shall be maintained for required reports to the Federal Department of Transportation.
Employees involved in testing and the administration of this policy shall observe strict confidentiality of an employee's test results and treatment. Any employee who violates this requirement for confidentiality will be subject to disciplinary action.
Informational Program - A program will be presented for all employees covered by this policy to help them understand the policy and the Metropolitan Government's program on substance abuse. This will include training on the provisions of the policy, information about controlled substances and alcohol use, and treatment resources which are available. The policy will be made known to all new employees and the information will be incorporated in new employee orientation.
Supervisors - Supervisors of safety-sensitive employees shall attend a program of training. This program will be designed to teach supervisors how to identify and document substance use among employees and to familiarize them with the controlled substances testing program, provisions of this policy, and related laws.
Program Administrator - The administrator for this program shall be designated by the Director of the Personnel Department and shall serve as the liaison with the company who manages testing and reporting. The head of each department with a number of affected. by this policy shall also designate an administrator for the department. A listing of those persons currently designated is attached as Appendix 4.
XII. Grace Period
There shall be a sixty-day grace period from the date of this Executive Order prior to the implementation of random testing and testing based on reasonable suspicion. During this time, employees who need counseling and/or rehabilitation are encouraged to seek help. Anyone who seeks counseling during this period or who is currently participating in a program will not be disciplined for voluntary self-identification as long as he/she complies with the counseling program agreement and refrains from abusing controlled substances and alcohol. If a problem with controlled substances or alcohol abuse occurs at any time after the grace period, appropriate action (referral for counseling or discipline), will be taken in accordance with this policy. The sixty-day grace period shall not apply to post-accident or pre-appointment testing.
XIII. Conflict with other Laws or Court Action
The Omnibus Transportation Employee Testing Act of 1991 preempts state and local laws that may be in conflict therewith. The Substance Abuse Policy currently in effect is preempted in situations where this policy applies but remains in effect for all other employees.
If any provision of this policy, or the application thereof, to any person or circumstance is held to be invalid, the invalidation shall not affect any other provisions or the application of this program and to this end the provisions of the program are declared to be severable.
Alcohol - any food, beverage, mixture or preparation, including any medication, containing methyl alcohol.
Alcohol Concentration (alcohol content) - a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as shown by an evidential breath test.
Collection Site - a place designated by the Metropolitan Government where employees present themselves to provide a specimen of breath, urine, and/or blood to be analyzed for the presence of alcohol or controlled substances.
Confirmation Test - a second test: for alcohol, this test provides quantitative data of alcohol consumption; for controlled substances, this is an analytical procedure using a different technique and chemical principle from the screening test.
Controlled Substances - a stimulant, narcotic, cannabinoid, or derivation thereof, or any other substance as controlled by law.
Employee - a person who works for the Metropolitan Government whose job requires a Commercial Drivers License, whether for regular, relief, or occasional operation of a Commercial Motor Vehicle.
Medical Review Officer - a licensed physician or board licensed toxicologist who has the knowledge of substance abuse disorders and the appropriate medical training to interpret and evaluate an individual's positive test results.
Refusal to Submit - willful refusal to participate in alcohol and controlled substances testing: inability or failure to provide an adequate breath or urine sample for testing without a medical explanation: tampering or attempting to tamper with a test sample.
Screening Test - for alcohol, an analytical procedure to determine whether an employee may have a prohibited amount of alcohol in his/her system: for controlled substances, an immunoassay screen to eliminate "negative" urine specimens from further consideration.
Substance Abuse Professional - a licensed physician, or a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor (no state certification), with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substance-related disorders.
XV. Effective Date
This Executive Order shall be effective as of January 1, 1995.
Ordered this 18th day of January 1995.