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HomeMy WebLinkAboutAgenda - 10-20-2009 - 6gORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 20, 2009 Action Agenda Item No. (D - SUBJECT: Revision to Personnel Ordinance Article III, Section 11.0 Drug and Alcohol Testing Policy DEPARTMENT: Human Resources PUBLIC HEARING: (Y/N) No ATTACHMENT(S): 1. Revised Article III, Section 11.0 Orange County Personnel Ordinance, Drug and Alcohol Policy 2. Drug and Alcohol Testing Policy: .Administrative Rules and Regulations INFORMATION CONTACT: Michael McGinnis, HR Director 245-2552 M. Jewel Wray, HR Manager 245-2556 Annette Moore, Staff Attorney 245-2317 PURPOSE: To revise Article III, Section 11.0 of the Orange County Personnel Ordinance and to provide for Administrative Rules and Regulations for Drug and Alcohol Testing Program. BACKGROUND: The United States Department of Transportation (DOT) regulates certain employers' compliance with drug and alcohol testing rules and procedures. These regulations cover transportation employers, safety-sensitive transportation employees and service agents with federal contracts. Orange County has positions in several departments including Aging/Orange Public Transportation (OPT), Public Works, Recreation and Parks, and Solid Waste that are covered by the Federal Transit Administration (FTA), 49 CFR Part 655, Federal Motor Carrier Safety Administration (FMCSA), 49 CFR Part 382; and 49 CFR Part 40. The Drug and Alcohol Testing Section of the Orange County Personnel Ordinance provides the procedures governing collection and testing of a specimen under the policy, and was first adopted in January 1996. Since 1996, the Board has amended the Ordinance as federal and state laws and regulations regarding drug and alcohol testing procedures have changed. The Board last amended the Ordinance in 2005. Since that time, there have been several significant changes to 49 CFR Part 40 that are not currently reflected in the County's Ordinance. Specifically, 49 CFR Part 40 has been amended to include: • Mandatory specimen validity testing; • A full description of the behavior and circumstances that constitute a refusal to take a drug and/or alcohol test; • A clear description of the consequences for a covered employee who has a verified positive test result and if the County has a second chance policy; • The consequences of a Negative Dilute test result; and 2 • Direct observation collections (a new federal law rule applicable to all DOT Return to Duty & Follow up Drug Testing, effective August 31, 2009). The Federal Transit Administration (FTA) conducts a review of grantees every three years to ensure they meet statutory and administrative requirements of the program. Recently, the FTA conducted a review of Triangle Transit (TT). Orange County Public Transportation is a subcontractor of Triangle Transit, a grantee and recipient of the Urbanized Area Formula Program funds administered by the FTA. In its review of TT, the FTA identified deficiencies in Orange County's Drug and Alcohol Testing Policy. As result, the amendments, included in the attached Administrative Rules and Regulations for the Orange County's Drug and Alcohol Testing Policy, must be submitted to Federal Transit Administration by November 1, 2009. If the County fails to approve changes to Orange County Drug and Alcohol policy, the County will be in violation of mandatory regulations by DOT. TT will have send funds back to the DOT. In addition, Orange County would have to cease the use of its Commercial Motor Vehicle operated by employees who hold Commercial Drivers Licenses. On January 15, 2008, the Board gave the County Manager authority to create a set of Administrative Rules and Regulations that "were consistent and necessary to carry out the provisions of the Personnel Ordinance as well and provide administrative and technical guidance to the Personnel Program." Recently, some significant changes have occurred in the federal regulations governing drug and alcohol testing that must be implemented into the County's Drug and Alcohol Testing program', if the County is to be compliant with federal law. Staff is recommending that instead of incorporating th Ordinance that they be placed into Administrative Rules ar County Manager. This change would allow the Manage brought about by amendments to state and federal laws, The Board would be notified as provided in the Ordinance Administrative Rules and Regulations. (See Attachment 1 Section 11.0 of the Personnel Ordinance and Attachment Rules and Regulations.) ese changes into the Personnel id Regulations implemented by the r to efficiently implement changes regulations and judicial decisions. of any substantive changes to the for the proposed revised Article III, 2 for the proposed Administrative FINANCIAL IMPACT: OPT will not receive DOT funds for Community Transportation Program. RECOMMENDATION(S): The Manager recommends that the Board: (1) Adopt the revised Article III, Section 11.0 of the Orange County Personnel Ordinance, and repeal the current Article III, Section 11.0 upon adoption of the revision; (2) Direct the County Manager to promulgate Administrative Rules and Regulations for a Drug Testing Program consistent with the current Ordinance and state and federal law; and _ (3) Make these changes effective with the signing of the Administrative Rules and Regulations by the County Manager. ' Article III, Section 11.0, of the Orange County Personnel Ordinance. ~~~ - ~0~~ -1~ 3 Attachment 1: Administrative Rules and Regulations Proposed Revised Article III, Section 11.0 of the Orange County Personnel Ordinance: Drug and Alcohol Testing: In accordance with the provisions of the federal and state statutes, and their implementing regulations, Orange County will maintain a workforce free of alcohol and drug abuse to protect the safety of County employees and the public in compliance with the Drug-Free Workplace Act of 19&8 and the Omnibus Transportation Employee Testing Act of 1991. An employee who refuses or fails to comply with this section of the Personnel Ordinance may be subject to discipline up to, and including dismissal. This County Manager will promulgate Administrative Rules and Regulations necessary to carry out the provisions of this section of the Personnel Ordinance consistent with all applicable state and federal laws and regulations governing workplace anti-drug and alcohol programs including, but not limited to: • The Federal Transit Administration (FTA) of the U.S. Department of Transportation 49 CFR Part 655 as amended, that mandates urine drug testing and breath alcohol testing for safety-sensitive positions and prohibits performance of safety-sensitive functions when there is a positive test result. • The U.S. Department of Transportation (DOT) 49 CFR Part 40, as amended, that sets standards for the collection and testing of urine and breath specimens; and • The Federal government 49 CFR Part 29, "The Drug-Free Workplace Act of 1988," which requires the establishment of drug-free workplace policies and the reporting of certain drug-related offenses to the FTA. This policy incorporates those requirements for safety- sensitive employees and others when so noted. • North Carolina General Statutes § 95-230 et al. Controlled Substance Examination Regulations. Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 4 Attachment 2: Administrative Rules and Regulations Drug and Alcohol Testing I. ORDINANCE In accordance with the provisions of the federal and state statutes, and their implementing regulations, Orange County will maintain a workforce free of alcohol and drug abuse to protect the safety of County employees and the public in compliance with the Drug-Free Workplace Act of 1988 and the Omnibus Transportation Employee Testing Act of 1991. An employee who refuses or fails to comply with this section of the Personnel Ordinance may be subject to discipline up to, and including dismissal. This County Manager will promulgate Administrative Rules and Regulations necessary to carry out the provisions of this section of the Personnel Ordinance consistent with all applicable state and federal laws and regulations governing workplace anti-drug and alcohol programs including, but not limited to: • The Federal Transit Administration (FTA) of the U.S. Department of Transportation 49 CFR Part 655 as amended, that mandates urine drug testing and breath alcohol testing for safety-sensitive positions and prohibits performance of safety-sensitive functions when there is a positive test result. • The U.S. Department of Transportation (DOT) 49 CFR Part 40, as amended, that sets standards for the collection and testing of urine and breath specimens; and • The Federal government 49 CFR Part 29, "The Drug-Free Workplace Act of 1988," which requires the establishment of drug=free workplace policies and the reporting of certain drug-related offenses to the FTA. This policy incorporates those requirements for safety-sensitive employees and others when so noted. • North Carolina General Statutes § 95-230 et al. Controlled Substance Examination Regulations. II. AUTHORITY The Orange County Personnel Ordinance, Article III, Section 11.0 provides that the County Manager will promulgate any rules or regulations necessary to carry out the provision of this section of the Personnel Ordinance. III. RULE The purpose of this rule is to implement and give effect to Article III, Section 11.0 of the Orange County Personnel Ordinance "Drug and Alcohol Testing." This policy is intended to carry out the purpose of the Orange County Personnel Ordinance Article III, Section 10.0 and 11.0 and to comply with applicable state and federal regulations governing workplace anti-drug and alcohol programs. Page 1 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 5 IV. ADMINISTRATIVE RULES AND REGULATIONS A. Purpose. The purpose of this policy is to maintain a workforce free of alcohol and drug abuse and to protect the safety of the public and County employees in compliance with the Drug-Free Workplace Act of 1988 and the Omnibus Transportation Employee Testing Act of 1991. This policy is intended to comply with all applicable state and federal laws and regulations governing workplace anti-drug and alcohol programs including: 1. The Federal Transit Administration (FTA) of the U.S. Department of Transportation 49 CFR Part 655 as amended, that mandates urine drug testing and breath alcohol testing for safety-sensitive positions and prohibits performance of safety-sensitive functions when there is a positive test result. 2. The U.S. Department of Transportation (DOT) 49 CFR Part 40, as amended, that sets standards for the collection and testing of urine and breath specimens, including; specimen validity testing; and 3. The Federal government 49 CFR Part 29, "The Drug-Free Workplace Act of 1988," which requires the establishment of drug-free workplace policies and the reporting of certain drug-related offenses to the FTA. This policy incorporates those requirements for safety-sensitive employees and others when so noted. 4. North Carolina General Statutes § 95-230 et al., "Controlled Substance Examination Regulations." B. Definitions: 1. Alcohol: The intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol: 2. Alcohol Test: A screening and confirmation test conducted by a trained Breath Alcohol Technician (BAT) using an Evidential Breath Testing (EBT) device which measures the presence of alcohol in the body. 3. Breath Alcohol Technician: An individual who instructs and assists individuals in the alcohol testing process and is certified to operate an Evidential Breath Testing device. 4. Cancelled Test: In drug .testing, a test that has been declared invalid by a Medical Review Officer. A cancelled test is neither a positive nor a negative test. In alcohol testing, a test that is declared invalid under 49 CFR 40.79 of the federal regulations. Page 2 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 6 5. Chain of Custody: Procedures designed to ensure proper handling, labeling, identification, confidentiality and documentation of test samples. 6. County Safety Sensitive Positions: For purposes of Orange County drug and alcohol testing, a County safety sensitive position is an Orange County position: a. Requiring consistent and frequent repair, operation and maintenance of heavy equipment, trucks, or automobiles (At least 40 percent of the time on a regular basis; or positions in which equipment operation is an important and primary job task on a periodic basis -- in contrast to positions where driving is involved to transport himself or herself to other job sites); or b. Working with lazge equipment or materials with a potential for hazazd; or c. Working in an independent setting with youth on a regular basis; or d. Requiring the transportation of clients in the custody and care of Orange County Human Services Departments on a regular basis; or e. Whose functions impact the rescuing of human life. 7. Covered Duties: Duties which are County safety sensitive as defined in the these Administrative Rules and Regulation, or duties which are FTA safety sensitive and covered under the federal regulations. 8. Drug: An illegal drug or illegal use of a controlled substance identified under the "Drug Test" definition below as prohibited. 9. Drug Test: A test, including providing the necessary sample of body fluid by the employee to be tested, for the presence of any of the following drugs or drug metabolites in the urine of an employee: a. Amphetamines; b. Cannabinoids (Marijuana); c. Cocaine; d. Opiates; e. Phencyclidine (PCP) Page 3 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 ~ 10. Federally Required Position Coverage (FTA Safety Sensitive): Federal drug and alcohol testing regulations apply to an employee who: a. Operates a commercial motor vehicle and is subject to the commercial driver's license (CDL) requirement. A "commercial motor vehicle" includes any motor vehicle used to transport passengers or property if the vehicle: i. Has a gross combination of weight rating of 26,001 or more pounds, including a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or ii. Has a gross vehicle weight rating of 26,001 or more pounds; or iii. Is designated to transport 16 or more passengers, including the driver; iv. Is of any size and is used to transport materials that are hazardous for the purpose of the Hazardous Materials Transportation act and that require the motor vehicle to be placarded under the Hazardous Materials Regulations. b. Performs or supervises the performance of certain functions related to mass transit. These functions include: i. Operating, maintaining or controlling the dispatch or movement of a revenue service vehicle. ii. First-line supervision of anyone operating, maintaining or controlling the movement of a revenue service vehicle if the supervisor's responsibilities include the performance of such functions. iii. Mechanical maintenance ,repair of a revenue service vehicle or equipment used in revenue service. 11. Medical Review Officer (MRO): A licensed physician responsible for receiving laboratory results of drug tests. The MRO has specific training in the area of substance abuse disorders and has medical training to interpret and evaluate an individual's confirmed positive test result together with his or -her medical history and any other relevant biomedical information. 12. On-Call: Time when an employee is required to leave a telephone number where he or she can be reached or to carry a pager and is subject to being called back to work, but may come and go freely. Page 4 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 $ 13. Refusal to Submit to Testing An em~loyee or applicant who in accordance with these Administrative Rules and Regulations refuses to submit to, or fails to supply the necessary sample to conduct an alcohol or drug test when testin ig s required by these Administrative Rules and Regulations. 14. Revenue Service Vehicle: A vehicle used to transport passengers as part of a revenue-producing service. 15. Return to Duty Agreement: A written agreement required as a condition of continued employment for an employee who has a positive drug or alcohol test result prior to return to work, if he or she is not dismissed from Orange County employment. 16. Substance Abuse Professional: A licensed or certified physician, psychologist, social worker, employee assistance professional or addiction counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium on Alcohol and other Drug Abuse. The Substance Abuse professional also must have clinical experience in the diagnosis and treatment of alcohol and drug-related disorders. C. Covered Employees. All employees are subject to drug and alcohol testing as provided in this policy, as a condition of employment, except that employees in the Sheriff s Department, covered under separate policy, and employees reporting to the Register of Deeds who are covered as the Register of Deeds voluntarily elects to cover them. Any employee who may have a problem with alcohol or drug abuse is encouraged to seek professional assistance. The County's Employee Assistance Program is available for confidential counseling, substance abuse assessment and treatment referral. D. Types of Drug and Alcohol Testing 1. Reasonable Suspicion Testing -Required when trained personnel observe behavior on the job which is characteristic of alcohol or drug misuse. 2. Random Testing -Required on a random, unannounced basis just before, during, or just after the performance of covered duties. Random selections are made using a scientific, automated random sampling technique. 3. Pre-employment Testing -Required after an offer to hire, but prior to beginning work in the covered position. Also required when an employee transfers to a position involving covered duties or when an employee in a covered position has been on leave for 90 days or more and returns to duty. Pre-employment testing involves drug testing only. Alcohol testing is not included as part of the pre-employment testing process. Page 5 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 9 4. Post-Accident -Required on any County employee driver of a motor vehicle, or any employee not on the vehicle (an automotive mechanic, for example) whose performance could have contributed to the motor vehicle accident. A covered accident is one which occurs while the employee is performing County duties and one which meets any one of the following conditions: a. A fatality results from the accident (whether or not the driver caused the accident). A motor vehicle accident may include an incident in which an individual is injured even though there is no vehicle collision. b. A person in the accident is treated at a medical facility (unless the driver can be completely discounted as a contributing factor to the accident). c. One of the vehicles in the accident receives disabling damage (unless the driver can be completely discounted as a contributing factor to the accident). 5. Return-to-Duty -Required when an employee has had a confirmed positive alcohol or verified positive drug test and returns to duty. 6. Follow-Up -Required on an employee who has returned to duty following a positive alcohol or drug test. Tests are unannounced and at least six drug and alcohol tests are conducted in the first 12 months after return to duty. Follow-up testing may continue for up to five years after return to duty. E. Testing Coverage 1. Reasonable Suspicion -Conducted for any County employee, temporary or permanent, when trained personnel determine that reasonable suspicion exists that the employee is at work under the influence of drugs or alcohol. (See Appendix IV.G.l.o, "Determining Reasonable Suspicion.") 2. Random -Conducted on any County employee, temporary or permanent, whose position: a. Is covered under Federal drug and alcohol testing regulations as defined in Section IV.B.10, or b, Involves driving an emergency response vehicle transporting patients. 3. Pre-Employment -Conducted on any: a. Permanent employee whose position is Page 6 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 10 (1) Covered under the Federal drug and alcohol testing regulations, as defined in Section IV.B.10, or (2) Designated by the County as County safety sensitive, as defined in Section IV.B.6. b. Temporary employee whose position: (1) Is covered under the Federal drug and alcohol testing regulations as defined in Appendix A, or (2) Involves driving an emergency response vehicle transporting patients. c. County employee who transfers into a position covered by the pre- employment drug testing requirements of these Administrative Rules and Regulations. 4. Post-Accident - Conducted on any County employee, permanent or temporary, when conditions for post-accident testing are met as provided in Section IV.D.4. Return-to-Duty -Conducted on any County employee, permanent or temporary, prior to returning to duty when the employee has had a confirmed positive alcohol or verified positive drug test. 6. Follow-Up -Conducted on any County employee who has been identified by a substance abuse professional as needing assistance in resolving problems with alcohol or drug misuse and who has returned to duty. 7. Designation of Covered Positions -The County maintains a list of positions covered by Random and Pre-Employment Testing, as specified in these Administrative Rules and Regulations. 8. ~ Sheriff s Department Positions -Positions in the Orange County Sheriff's Department are not covered by the drug -and alcohol testing provisions of these Administrative Rules and Regulations. The Sheriff maintains a separate drug and alcohol testing policy in ~ conformance with the requirements of the North Carolina Criminal Justice Commission. F. Refusal to Take the Drug or Alcohol Test. 1. An employee or applicant who refuses to submit to, or fails to suyply the necessary sample to conduct an alcohol or drug test when testing as. required by this Administrative Rules and Regulations will be considered to Page 7 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 1 ~ have refused to test and will be subject to the same consequences as having a positive test. 2. Behavior That Constitutes Refusal to Submit to a Test. An employee or an applicant is deemed to have refused to submit to a test if the following occurs: a. Fails to appear for any test (except apre-employment test) within a reasonable time as determined by the employer, and consistent with applicable DOT agencyregulations after being directed to do so bythe employer. This includes the failure of an employee to appear for a test when called bra third party administrator; b. Fails to remain at the testing site until the testing_process is complete except apre-employment test); c. Fails to provide a urine ~ecimen for an~ teg st required by this part or DOT agency regulations except a pre-employment test); d. In the case of a directly observed or monitored collection in a drug test fails to permit the observation or monitoring ofS our provision of a specimen; e. Fails to provide a sufficient amount of urine when directed, and it has been determined throu hg a required medical evaluation, that there was no adequate medical explanation for the failure; f. Fails or declines to take an additional drug test the employer or collector has directed you to take; g. Fails to undergo a medical examination or evaluation, as directed by the Medical Review Officer (MRO~part of the verification process or as directed by the Designated Employer Representative DER) In the case of afire-employment drub test, the employee is deemed to have refused to test on this basis only if the pre- employment test is conducted following a contingent offer of em~loyment If there was no continent offer of employment, the MRO will cancel the test; or h. Fails to cooperate with an~part of the testing_process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process, fail to wash hands after being directed to do so by the collector); For an observed collection, fails to follow the observer's instructions to raise your clothing above the waist, lower clothin Page 8 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 ~ 2 and undemants and to turn around to permit the observer to determine if you have any type of.~rosthetic or other device that could be used to interfere with the collection process; j. Possesses or wears a prosthetic or other device that could be used to interfere with the collection process; k. _Admits to the collector or MRO that they adulterated or substituted the specimen; If the MRO reports that the employee has a verified adulterated or substituted test result; An employee who refuses to take a drug test, incurs the consequences ~ecified under DOT agencyregulations for a violation of those DOT agency re ations. 4. When an em~loyee refuses to participate in the Bart of the testing_process the Collector or the MRO must terminate the testing_process, document the refusal on the proper forms and in the proper manner then immediately notify the DER by any means e ~ telephone or secure fax machine) that ensures that the refusal notification is immediately received. As a referral physician ~e ~ physician evaluating a "shy bladder" condition or a claim of a legitimate medical e~lanation in a validity testing situation you must notify the MRO, who in turn will notify the DER. 5. An employee who refuses to take anon-DOT test or to sib a non-DOT form has not refused to take a DOT test; but does constitute a refusal under these Administrative Rules and Regulations. There are no consequences under DOT agency regulations for refusing to take anon-DOT test. 6. An Employee who refuses to submit to a drug or alcohol test will be subject to immediate dismissal under the Orange Count~Personnel Ordinance. G. Conditions for Testing 1. Reasonable Suspicion - a. The County requires an employee undergo reasonable suspicion testing for drugs and/or alcohol when trained personnel substantiate that employee is exhibiting behavior at work which suggests reasonable suspicion that the employee is at work under the influence of drugs and alcohol. See Section G.l.o below, "Determining Reasonable Suspicion for Drug and Alcohol Use." Page 9 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 13 17. Substantiating Reasonable Suspicion. "Reasonable Suspicion" exists when trained personnel substantiate specific, objective, observations that can be articulated concerning appearance, behavior, speech, body odor or other indicators of probable drug or alcohol use. 18. Trained Personnel. "Reasonable Suspicion" of drug or alcohol use requires substantiation by trained personnel. Trained personnel for this purpose means an individual who has received at least one hour of training on alcohol misuse and one hour of training on drug misuse, including physical, behavioral, speech and performance indicators of probable alcohol or drug misuse. 19. Determining Reasonable Suspicion. In the determining reasonable suspicion, the following process is followed: (1) A supervisor who suspects that an employee is at work under the influence of drugs or alcohol immediately informs the department head of this and the specific reasons. (2) If the department head is not available or has not received the necessary training to substantiate reasonable suspicion, a trained supervisor may serve as the department head's designee. (3) The department head immediately contacts the Employment Officer, Employee Relations Officer or Human Resource Director. If the Employment Officer, Employee Relations Officer or Human. Resource Director is not available, another trained Human Resource staff member may assist in process of determining reasonable suspicion. The department director and the trained human resource representative meet with the employee involved in order to directly observe the employee's behavior. (4) Based on this and review of all the available information, the department director and human resource representative jointly determine whether sufficient evidence exists to substantiate reasonable suspicion of drug or alcohol use and to require a drug and alcohol test. (5) The department head and the human resource representative make a written record of the specific observations leading to the reasonable suspicion determination and sign it. (6) The determination of reasonable suspicion requires a trained supervisor and a trained human resource representative as provided in this section. Page 10 Orange County Personnel Rules-and Regulations Manual Issue Date: 10/21/09 14 The Human Resource Department arranges for the reasonable suspicion drug and/or alcohol test. If the need for the test arises outside of County business hours, the department head may contact the Human Resource representative and obtain information on testing arrangements by calling the County 9-1-1 Center. f. Following the substantiation of reasonable suspicion, the department director or designee notifies the employee of the requirement for an immediate drug and/or alcohol test. If the employee refuses to take the test, the .department head or designee advises the employee that refusal of testing in this circumstance has the same consequence as a positive test result and that the employee will be subject to disciplinary action, including dismissal under the Orange County Personnel Ordinance. g. The supervisor or other County official escorts the employee to the testing location. From the time reasonable suspicion is determined, the employee is removed from duty and observed to assure that he or she does not ingest anything or attempt to acquire "clean" urine from another person. h. After the testing is completed, the supervisor or County official escorting the employee to the testing location should use every reasonable means to assure the employee reaches home safely. i. A reasonable suspicion alcohol test should be administered within two hours and may not be administered later than eight hours following the reasonable suspicion determination. If the test is not administered within two hours and also if is not administered within eight hours, the supervisor must document and submit to the Human Resource Department the reasons for not administering the test. j. A reasonable suspicion drug test must be administered no later than 32 hours following the reasonable suspicion determination. If the test is not administered within 32 hours, the supervisor must document and submit to the Human Resource Department the reasons for not administering the test. k. While awaiting results of a reasonable suspicion drug test, a permanent employee is placed on leave with pay for the regulazly scheduled work hours. (A temporary employee is not paid for the missed work time.) 1. Examples of Indicators Consistent with Alcohol and Drug Use. The following indicators comprise a representative, but not exclusive list of factors which may be the basis for substantiating the reasonable suspicion of alcohol or drug use. Page 11 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 15 (1) Slurred speech (2) The odor of alcohol or marijuana about the person (3) Inability to walk a straight line (4) Loss of coordination (5) Physical or verbal altercations (6) .Unusual behavior which warrants bringing it to the attention of a supervisor such as confusion, disorientation, marked personality changes, irrational behavior. (7) Possession of drugs (8) Verifiable information from a credible source that an employee may have been impaired while performing assigned duties. (9) A pattern of unexplained accidents and injuries (10) Arrests, citations and deferred prosecutions associated with drugs or alcohol (in conjunction with other indicators listed above) (11) A pattern of excessive absenteeism, late reporting or deterioration in work performance (in conjunction with other indicators listed above) 2. Random a. Random drug and alcohol testing occurs while the employee is on-duty, immediately prior to performing covered duties, or immediately after performing covered duties. b. For random testing purposes, the pool of employees covered under Federal drug and alcohol testing regulations is maintained separately from the pool of County safety sensitive employees as designated by the County. c. Selection of employees for random testing is made by a scientifically valid random sampling method. Each time a random selection is made, each employee has an equal chance of being selected. Random tests are unannounced and spread reasonably throughout the year. d. The Human Reosurce Department notifies the department of the employee(s) identified for random testing. The department notifies the Page 12 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 16 employee. Once notified of a random test, the employee proceeds immediately to the testing site by transportation which may be provided by the department. 3. Post-Accident a: As soon as practical following a covered accident, -the supervisor or department head arranges for a drug and alcohol test to be administered to the covered employee. If the need for the test arises outside of County business hours, the supervisor or department head may obtain necessary information to arrange for the drug and alcohol test from the County 9-1-1 Center. b. The post-accident alcohol test should be administered within two hours, and no later than eight hours following the accident. If the test is not administered within two hours, the supervisor must document, and submit to the Human Resource Department the reason the alcohol test was not administered. If the alcohol test is not administered within eight hours following an accident, attempts to administer the test cease and the supervisor documents and submits to the Human Resource Department the events that resulted in the failure to administer the test. c. Apost-accident drug test must be administered within 32 hours following the accident. If the drug test is not administered within 32 hours, the supervisor should document, and submit to the Human Resource Department, the reasons for not administering the test. d. An employee subject to post-accident testing must remain readily available for testing. It is considered a refusal to submit to testing, and thus has the same consequence as a positive test result, if an employee unnecessarily leaves the scene of an accident before a required test is administered, or if the employee fails to remain readily available for testing. e. In no case, should the post-accident testing requirement delay medical attention for persons injured in the accident. 4. Pre-Employment a. After the offer for employment is made for a position covered under this policy, the final candidate is required to undergo a drug test prior to beginning work in the .position. A positive test result or refusal to submit to the drug test will result in disqualification for employment. b. An applicant who refuses to submit to a drug test will not be considered for employment for a two year period following the refusal. Page 13 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 ~ 7 c. An applicant who does not pass a drug test as required will not be considered for employment for atwo-year period following the date of the test and then will be considered only when the applicant provides documentation that he or she has successfully completed a drug treatment program and the applicant passes apre-employment drug test. d. For any covered permanent position, the Human Resource Department arranges for the pre-employment drug test and notifies the candidate and the department head of the result. For any covered temporary appointment, the department is responsible for contacting the Human Resource Department to arrange the drug test. e. In addition to pre-employment drug testing, the County-may obtain and review information from any past employer within the previous two years as to any positive test or refusal of a test. Any such positive test or refusal to test is treated as in Item c above. f. An applicant who fails to provide written consent for the County to obtain information from past employers will not be considered for employment. Return-to-Duty and Follow-Up Testing a. An employee who is allowed to return-to-duty following referral, evaluation and release to return to duty from a substance abuse professional is required to submit to a drug and/or alcohol test prior to return to duty. b. An employee returning to duty following a positive alcohol or drug test result and following referral and evaluation by a substance abuse professional is subject to a minimum of six unannounced alcohol and drug tests during the next 12 months of employment. Follow-up testing may continue for up to five years following return-to-duty. H. Positive Test Results 1. Disciplinary Action a. If an employee tests positive for drugs or alcohol (Breath Alcohol Test results indicate a 0.04 or greater concentration of alcohol in the employee's system), the employee is subject to disciplinary action, including dismissal at the discretion of the Manager or, in the case of a Social Services or Health Department employee, the Social Services Director or Health Director respectively. In reaching a decision as to appropriate disciplinary action, the department head Page 14 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 18 making a recommendation and the Manager, Social Services Director or Health Director considers such factors as: (1) The employee's work history, including length of service and any past disciplinary action. (2) The employee's job functions such as FTA or County safety sensitive job functions. (3) The circumstances of the positive test result. b. Pending the County's decision as to disciplinary action, the employee is removed from duty and receives leave with pay for the regularly scheduled work hours. c. If the decision is to dismiss the employee, any such dismissal is handled as provided in Article IX of the Ordinance. An employee who is dismissed is referred to the County's Employee Assistance Program for substance abuse assessment and referral for treatment. d. If the decision is to allow the employee to continue in employment, such employment is contingent on the employee's signed acceptance of the terms of the County's written Return to Duty Agreement. 2. Return to Duty Agreement. a. The Return to Duty Agreement terms include: (1) The employee's acceptance of mandatory referral through the County's Employee Assistance Program for substance abuse assessment and treatment and the requirement for the approval of a substance abuse professional before return to work. (2) A requirement that the employee have a negative test for drugs and an alcohol test with a result of less that 0.02 prior to return to duty. (3) The employee's agreement to unannounced follow up testing, including at least six tests in the 12 months after return to duty and tests continuing for up to five years. (4) An agreement to comply with the substance abuse treatment plan and to provide reports as to compliance to the Human Resource Department. Page 15 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 19 (5) The employee's acknowledgement that he or she will be dismissed from County employment if he or she fails to comply with the terms of the Return to Duty Agreement or has a positive drug test or an alcohol test with a result of 0.02 or greater. (6) A date by which the employee must meet the requirements for substance abuse assessment and negative return to duty test or he or she will be dismissed. b. During the period after the decision to allow the employee to continue employment and the employee's completing the specific steps necessary to return to duty, the employee is on leave without pay. If he or she has earned, unused Vacation Leave, Sick Leave or Personal Leave Days, such time may be used in lieu of leave without pay. 3. Substance Abuse Assessment and Treatment. a. In the instance of a positive drug or alcohol test, the County makes a mandatory referral through the County's Employee Assistance Program to a substance abuse professional for substance abuse assessment and treatment. The substance abuse professional assesses the employee's level of substance abuse and makes a referral for treatment if appropriate. b. When a referral for treatment is made, the employee must participate in the treatment as recommended. The employee signs a release form to insure information on attendance at the EAP and subsequent treatment is provided to the County. Failure to sign the appropriate releases constitutes failure to participate in treatment and may result in dismissal. c. The employee must pay the cost of treatment. d. Leave During Treatment. The employee may use earned Sick Leave, Vacation Leave, Leave without Pay, or any combination during the treatment period. 4. Reemployment. An employee who has a positive drug or alcohol test and is dismissed may be considered for re-employment with documentation of successful completion of a drug or alcohol abuse treatment program, and upon the successful completion of apre-employment drug test. I. Alcohol Test Results between 0.02 and 0.04 Page 16 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 2 ~ 1. An employee who is tested and found to have an alcohol concentration of 0.02 or greater but less than 0.04 must not perform any covered duties for the next 24 hours. The employee must leave the workplace (not in a County vehicle) and must not report back to work until the end of the 24 hour period. The employee may use earned Vacation Leave or leave without pay to cover any missed work time. 2. An employee who receives test results between 0.02 and 0.04 is counseled about the requirement of reporting to work without the presence of alcohol in his or her system. 3. An employee who is tested and found to have an alcohol concentration of 0.02 but less than 0.04 and who has previously had an alcohol test result between 0.02 and 0.04 is subject to disciplinary action, including dismissal; in accordance with these Administrative Rules and Regulations. On any third occurrence of a test result between 0.02 and 0.04, the employee is dismissed, in accordance with these Administrative Rules and Regulations. J. Special Drug Test Results (1) An adulterated or substituted specimen is considered a refusal to test. (2) A negative dilute specimen is a negative drug test but requires a retest before return to duty. Only one retest ma} be performed. A second negative dilute specimen is considered a negative drug test. The employee or ~plicant will be given the minimum possible advance notice that he or she must~o to the collection site. This testing will not be under the direct testing observation unless instructed by the MRO or there ~is another basis for use of direct observation. (3) Any employee who after August 31, 2009, goes .for .return-to-duty and follow up testing must have their collections observed as provided in 40 CFR Part 40. K. Alcohol Testing Procedures Any alcohol test will be conducted at a site which affords visual and aural privacy to the individual being tested. Unauthorized persons will not be permitted access to the testing location when a test is in progress. 2. Alcohol testing will be performed by a Breath Alcohol Technician (BAT) trained and certified in the principles of Evidential Breath Testing (EBT) methodology. Page 17 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 2 ~ 3. Alcohol tests with a result of 0.02 alcohol concentration or greater must be confirmed with an EBT that is capable of printing out each test result. L. Drug Testing Procedures 1. Any drug test will be conducted through analysis of a urine specimen by a laboratory using testing and quality assurance guidelines established by the Federal Department of Health and Human Services. All testing will be conducted consistent with the procedures set forth in 49 CFR Part 40, as amended. Procedures will account for the integrity of each urine specimen by tracking its handling and storage from the point of specimen collection to final disposition of the specimen. 2. Specimen Validity Testing. Specimen validi testing will be conducted on all urine specimens provided; includin tg estin~ under DOT authority Specimen validity testing is the evaluation of the specimen to determine if it is consistent with normal human urine. The purpose of s ecimen validity testing is to determine whether certain adulterants or foreign substances were added to the urine, if the urine was diluted, or if the ~ecimen was substituted. 3. A split sample method of collection is used. The primary specimen will undergo an initial screen. If the test result of the primary specimen is positive, the split sample may be tested for reconfirmation at the employee's request. If the test result of the primary specimen is negative, the laboratory will dispose of the split sample. 4. Any confirmed positive test result is reviewed and interpreted by a Medical Review Officer (MRO) prior to transmission of the results to Orange County. The MRO will generally review the findings of the drug test with the employee in addition to reviewing the chain of custody procedures followed by the laboratory. M. Confidentiality. Orange County maintains drug and alcohol testing results and records on a confidential basis, except as provided below or by law. 1. The employee, upon written request, is entitled to obtain copies of any records pertaining to his or her use of prohibited drugs or misuse of alcohol including nay drug or alcohol testing records. Covered employees have the right to gain access to any pertinent records such as equipment calibration records, and records of laboratory certifications. 2. Records of a verified positive drug/alcohol test result shall be released to the Drug and Alcohol Program Manager, Department Head and Human Resource Director on a need to know basis. Page 18 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 2 2 3. Records will be released to a subsequent employer only upon receipt of a written request from the employee. 4. Records of an employee's drug/alcohol tests shall be released to the adjudicator in a grievance, lawsuit, or other proceeding initiated by or on behalf of the tested individual arising from the results of the drug/alcohol test. 5. Records will be released to the National Transportation Safety Board during an accident investigation. 6. Records will be released to the DOT or any DOT agency with regulatory authority over Orange County or any of its employees. 7. Records will be released if requested by a Federal, state or local safety agency with regulatory authority over Orange County or any of its employees. 8. If a parry seeks a court order to release a specimen or part of a specimen contrary to any provision of Part 40, the County will take the necessary legal steps to contest the issuance of the order. N. Responsibilities. 1. The employee: a. Assures that the ability to perform his or her job duties is not affected due to the use of alcohol or drugs when scheduled to report to work, or scheduled for "on call" duty. b. Attends one hour of training, if in a FTA safety sensitive or County safety sensitive position, in the signs and symptoms of drug and alcohol abuse, including the effects and consequences of drug and alcohol abuse on health, safety and the work place. c. Informs the supervisor, prior to performing covered duties, if taking a prescribed medication that could impair his or her ability to perform the covered duties. d. Refrain from using alcohol for four hours prior to the performance of covered duties and for eight hours following an accident for which drug and alcohol testing may occur or until testing has been completed. 2. The Department Director: Page 19 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 2 3 a. Informs each employee of the drug and alcohol testing requirements for his or her position. b. Provides for one hour of training for each employee in a FTA safety sensitive or County safety sensitive position in the signs and symptoms of drug and alcohol abuse, including the effects and consequences of drug and alcohol abuse on health, safety and the work place. c. Applies this policy consistently to all employees within the department. d. Notifies the Human Resource Department immediately when there is belief that reasonable suspicion may exist of drug or alcohol use and, in conjunction with the Human Resource representative determines whether reasonable suspicion exists. e. Assures that an employee being tested for reasonable suspicion for drugs or alcohol is not allowed to work until the fmal results of the drug test are obtained. f. Assures that an employee to be tested for drugs or alcohol reports to the County's designated test site. g. Makes every reasonable effort to assure that an employee who undergoes a reasonable suspicion drug test, or an employee whose result on a Breath Alcohol Test is greater than 0.04 is safely transported home. 3. The Human Resource Department: a. Assures information regarding the testing and referral of employees and applicants under this policy is treated. as confidential in accordance with the requirements of North Carolina law governing the privacy of employee personnel records. b. Makes arrangements for testing services and assures these are in compliance with the Federal drug and alcohol testing regulations. c. Assures federally required drug and alcohol testing records are maintained. d. Submits annual drug and alcohol testing reports as required by the State and Federal Government. Page 20 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 e. Maintains the list of positions which are identified as County safety sensitive under Orange County's safety sensitive definition and positions which are identified as FTA safety sensitive by Federal Drug and Alcohol Testing regulations. f. Reports any positive drug or alcohol test for an employee in a FTA safety sensitive position to the State Division of Motor Vehicles (DMV) within five business days. Amended following receipt of confirmation of a positive test. 12/1/05 The notice includes the driver's name, home address, driver's license number, social security number and results of the drug or alcohol test. Note: Upon receipt of notice of a positive drug or alcohol test, the DMV will disqualify the employee from operating a commercial motor vehicle or other public transit vehicle until successful completion of treatment. g. Arranges for referrals to a substance abuse professional when a positive test or refusal to test occurs. h. Receives and communicates test results to the department head. i. Provides for one hour of training for each employee in a FTA safety sensitive or County safety. sensitive position in the signs and symptoms of drug and alcohol abuse, including the effects and consequences of drug and alcohol abuse on health, safety and the work place. Provides access to this policy and the corresponding federal regulations including 49 CFR Parts 655 and 40, as amended, for all employees. k. Provides at least two hours of training for supervisors on the physical, behavioral, speech and performance indicators of probable drug and alcohol use. 4. The Medical Review Officer (MRO): a. When the test of the primary specimen is positive, substituted or adulterated, notifies the employee or applicant that he or she has 72 hours in which to request a test of the split specimen. b. Reviews and interprets any confirmed positive laboratory test result and considers all information which might have an impact on the test results by doing the following: 24 Page 21 Orange County Personnel Rules and Regulations Manual Issue Date: 10/21/09 2 5 (1) Conducts an interview with the employee or applicant as necessary. (2) Reviews the employee's or applicant's medical history as necessary. (3) Reviews all medical records made available by the employee or applicant when a confirmed positive test could have resulted from a legally prescribed medication. c. Determines if the test is positive, negative, cancelled or requires a retest.. d. Following review of the test results, reports test results to the authorized County representative in the Human Resource Department. This Section of the Rules and Regulations will become effective upon signing of this document. I direct that the Human Resource Department provide notification to all affected employees of the changes to the policy. Adopted this the day of October 2009. Frank W. Clifton, County Manager Page 22