Delano Joint HSD | AR 4212.43 Personnel
Alcohol And Controlled Substances Testing
Federal law prohibits alcohol misuse and use of controlled substances that could affect the performance of a safety-sensitive function by employees. This administrative regulation implements the requirements of Federal Law.
This administrative regulation shall be applicable only to those employees of the Delano Joint Union High School District who hold a commercial driver's license which is necessary to perform job related duties, such as, but not limited to, operating a commercial motor vehicle.
1. Alcohol is the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols, including methyl and isopropyl alcohol.
2. Alcohol use is the consumption of any beverage, mixture, or preparation, including any medication containing alcohol.
3. Breath alcohol technician (BAT) is an individual who instructs and assists individuals in the alcohol testing process and operates an evidential breath testing device (EBT).
4. Commercial motor vehicle is a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
a. Has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds.
b. Has a gross vehicle weight rating of 26,001 or more pounds.
c. Is designed to transport 16 or more passengers, including the driver.
d. Is of any size and is used in the transportation of hazardous materials requiring placards.
e. School buses of any size.
5. Confirmation test, for alcohol testing, is a second test that provides quantitative data of alcohol concentration following a screening test with a result of 0.02 grams or greater of alcohol per 210 liters of breath. For controlled substances testing, it is a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the screen test and which uses a different technique and chemical principle from that of the screen test in order to ensure reliability and accuracy.
6. Covered employee is an employee subject to the requirements of applicable federal law and this regulation. Covered employees are those who hold a commercial driver's license which is necessary to perform job related duties, such as, but not limited to, operating a commercial motor vehicle.
7. Driver is any person who operates a commercial motor vehicle.
8. Employer is any person (including the United States, a state, the District of Columbia or a political subdivision of a state) who owns or leases a commercial motor vehicle or assigns persons to operate such a vehicle, including agents, officers, and representatives of the employer. Delano Joint Union High School District is the employer.
9. Evidential breath testing device (EBT) is a device approved 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" (CPL).
10. Medical review officer (MRO) is a licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated by an employer's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result, together with their medical history and any other relevant biomedical information.
11. On-duty time, as that phrase is defined by federal regulations and this regulation, means all of the time from the time a covered employee begins to work, is required to be in readiness to work, until the time they are relieved from work and all responsibility for performing work. All time spent providing a breath sample or urine specimen including travel time to or from a collection site, in order to comply with the regulation.
12. Performing (a safety-sensitive function) is any period in which the driver is actually performing, ready to perform, or immediately able to perform any safety-sensitive functions.
13. Refusal to submit (to an alcohol or controlled substance test) is when a driver (1) fails to provide adequate breath for testing without a valid medical explanation after they have received notice of the requirement of breath testing, (2) fails to provide adequate urine for controlled substances testing without a valid medical explanation after they have received notice of the requirement for urine testing or (3) engages in conduct that clearly obstructs the testing process.
14. Safety-sensitive function, for purposes of this regulation, shall mean any of the functions defined in Title 49 of the Code of Federal Regulations. More specifically, safety-sensitive functions include all functions performed by a covered employee during on-duty time and include:
a. All time at a carrier or shipper plant, terminal, facility, or other property waiting to be dispatched, unless the driver has been relieved from duty by the employer.
b. All time inspecting equipment as required by the Federal Motor Carrier Safety Regulation (FMCSRS) or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time.
c. All time spent at the driving controls of a commercial motor vehicle.
d. All time, other than driving time, spent on or in a commercial motor vehicle.
e. All time loading or unloading a commercial motor vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded.
f. All time spent performing the driver requirements associated with an accident.
g. All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
15. Screening test (a.k.a. initial test) in alcohol testing, is an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in their system. In controlled substances testing, it is an immunoassay screen to eliminate negative urine specimens from further consideration.
16. Substance abuse professional is a licensed physician (medical doctor or doctor of osteopathy), or a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission) with knowledge of a clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.
1. No covered employee shall report for duty, or remain on duty requiring the performance of safety-sensitive functions, while having an alcohol concentration of 0.02 or greater.
2. No covered employee shall remain on duty, or operate a commercial motor vehicle, while that employee possesses alcohol. This includes the possession of medicines containing alcohol (prescription or over-the-counter), unless the packaging seal is unbroken.
3. No covered employee shall use alcohol during on-duty time, while performing safety-sensitive functions.
4. No covered employee shall perform safety-sensitive functions within four hours after using alcohol.
5. No covered employee required to take a post-accident alcohol test shall use alcohol for eight hours following the accident or until they undergo a post-accident alcohol test.
6. No covered employee shall refuse to submit to any test required by law or this regulation.
7. No covered employee shall report for duty, or remain on duty requiring the performance of safety-sensitive functions, when the covered employee uses or possesses any controlled substances, except when the use or possession is pursuant to the instructions of a physician who has advised the driver that the substances do not adversely affect the driver's ability to safely operate a commercial vehicle.
The driver is required to inform the district of any prescribed drug use.
Other Alcohol Related Conduct
Although the following conduct is unacceptable, it is not considered to be "prohibited conduct" for the purposes of this regulation. As outlined in this regulation, engaging in prohibited conduct has specific consequences not applicable to this section.
No covered employee found to have an alcohol concentration of .02 or greater but less than .04 shall perform or continue to perform safety-sensitive functions until the start of the driver's next regularly scheduled duty period, but not less than 24 hours following administration of the test.
If an applicant or covered employee produces a test result indicating an alcohol concentration equal to or greater than .04, that employee shall be transported to their residence by the employer.
A covered employee who fails a required test shall not receive their normal compensation for hours during which the employee is prohibited by federal law, and this regulation, from performing a safety-sensitive function. Failure is defined as a verified positive result by an MRO for controlled substances and/or an alcohol concentration of .02 or greater. The employee may not utilize sick time, vacation, or compensatory time during the period the prohibition is in place.
Consequences of Prohibited Conduct
1. No covered employee shall return to duty or remain on duty to perform safety-sensitive functions if the covered employee has engaged in conduct prohibited by this regulation.
2. Any covered employee tested under this regulation who is found to have an alcohol concentration equal to or greater than .04, or who tests positive on a verified controlled substances test, shall not continue to perform safety-sensitive functions for the employer. In this situation, the covered employee shall not resume the performance of safety-sensitive functions until the employee produces a Return-To Duty test with a result indicating an alcohol concentration of .02, and/or a result indicating a negative result for controlled substances use.
3. Any covered employee discovered to have engaged in prohibited conduct shall be subject to an evaluation by a substance abuse professional (SAP) to determine what, if any, assistance the employee needs in resolving problems associated with alcohol misuse and controlled substances use. The SAP shall be a person who is qualified for that position in accordance with applicable federal requirements.
4. Any covered employee discovered to have engaged in prohibited conduct associated with substance abuse shall be terminated.
All tests conducted pursuant to this regulation shall comply with the requirements of applicable federal law. See Appendix B.
1. Prior to the first time a covered employee performs safety-sensitive functions for the employer, the employee shall undergo testing for controlled substances.
2. The employer shall not allow any covered employee to perform safety-sensitive functions unless the covered employee has produced a controlled substances test result from a medical review officer indicating a verified negative test result.
3. The employer reserves the right not to employ an applicant who has received a controlled substances test indicating a verified positive test result.
4. The employer is responsible for the costs associated with pre-employment testing.
Previous Employment Information
1. Upon application to a covered position, applicants will be required to sign a release authorizing the employer to obtain testing information from the applicant's previous employers. The applicant's signature on the release shall be a condition of employment.
2. The information shall include: any alcohol test results with a concentration greater than .04, any positive controlled substances test results, and any refusals to be tested.
3. The information shall be obtained from the applicant's previous employers from the past two years.
4. Upon offering an applicant a position, the employer shall obtain the required information. The employer shall endeavor to obtain the information within 14 days.
5. Should the information reveal that the applicant is not eligible to perform safety-sensitive functions (pursuant to 49 CFR, Part 382.413(g)), the employer shall withdraw the employment offer.
1. As soon as practicable following an accident involving a commercial motor vehicle, the employer shall test the following individuals for alcohol and controlled substances: (1) any covered employee who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life, and/or (2) any covered employee who receives a citation under state or local law for a moving violation arising from the accident.
For the purposes of this regulation an accident is defined as an incident involving a commercial motor vehicle in which there is either a fatality, an injury treated away from the scene, or a vehicle is required to be towed from the scene.
2. If the alcohol test is not administered within two hours following the accident, the employer shall document the reasons the test was not promptly administered. If the alcohol test is not administered within eight hours following the accident, the employer shall cease attempts to administer the test and shall document the reasons the test was not administered.
3. If the controlled substances test is not administered within 32 hours following the accident, the employer shall cease attempts to administer the test and document the reasons the test was not administered.
4. Drivers who are subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused testing.
1. The employer shall randomly select covered employees for alcohol and controlled substances testing during each calendar year, in accordance with applicable federal law. The minimum annual percentage rate for random alcohol testing shall be 25 percent of the average number of covered employees until further notification is received from the Federal Department of Transportation. The minimum annual percentage rate for controlled substances testing shall be 50 percent of the average number of covered employees, until further notification is received from the Federal Department of Transportation.
2. The selection of covered employees for random alcohol and controlled substances testing shall be made by a scientifically valid method. Under the selection process used, every covered employee shall have an equal chance of being tested each time selections are made.
3. The employer shall ensure that the random tests are unannounced and that the dates for administering the random tests are spread reasonably throughout the calendar year. Every covered employee who is notified of selection for random testing shall cease to perform safety-sensitive functions and shall immediately proceed to the test site.
4. A covered employee shall be subject to random testing at the following times: while the covered employee is performing safety-sensitive functions, just before the covered employee is performing safety-sensitive functions, or just after the covered employee has ceased performing such functions.
5. Substitute employees, since they are also covered employees, are subject to random testing. Substitute drivers will be required to sign a release authorizing the district to release testing information/results to other school districts for which the driver is employed. Substitute drivers will be required to sign the release as a condition of being placed on Delano Public School Substitute driver list.
6. In the event a covered employee who is selected for a random test is on vacation or off duty, the employer will keep the original selection confidential until the driver returns.
Reasonable Suspicion Testing
1. The employer shall require a covered employee to submit to an alcohol or controlled substances test, as appropriate, when the employer has reasonable suspicion to believe that the employee has engaged in prohibited conduct.
2. The employer's determination that reasonable suspicion exist must be based on specific, contemporaneous, articulate observations concerning the appearance, behavior, speech, or body odors of the driver.
3. Reasonable suspicion testing is permitted only if the required observations are made during, just preceding, or just after the period of the workday that the covered employee is performing a safety-sensitive function or required to be in compliance.
4. The observation and determination that a reasonable suspicion exist will be made by a supervisor trained in detecting the symptoms of alcohol misuse and use of controlled substances as per the regulations. The training shall consist of at least 60 minutes of training on alcohol misuse and at least an additional 60 minutes of training on controlled substances use. The observations shall be documented and signed by the official who made the observations within 24 hours of the observed behavior or before the results of the controlled substances test are released, whichever is earlier.
5. If the alcohol test is not administered within two hours following the determination that a test is required, the employer shall document the reasons the alcohol test was not promptly administered. If the alcohol test is not administered within eight hours, the employer shall cease attempts to test and document the reasons the test was not administered.
6. Notwithstanding the absence of a reasonable suspicion alcohol test, no employee shall remain on duty requiring the performance of safety-sensitive functions if the employer has reasonable suspicion to believe that the employee is impaired by alcohol, until:
a. An alcohol test is administered and the driver's alcohol concentration measures less than .02; or;
b. 24 hours have elapsed following the determination that reasonable suspicion exists.
Return-to-Duty and Follow-Up Tests
1. Before a driver returns to duty requiring the performance of a safety-sensitive function, after engaging in prohibited conduct he/she shall undergo a return-to-duty alcohol test with a result less than .02. In addition to a return-to-duty test, the employee is also subject to follow-up testing.
2. In the event a return-to-duty test is required, the driver must also be evaluated by a qualified professional and participate in any assistance program prescribed.
3. Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse, the driver shall be subject to unannounced follow-up alcohol testing. The testing shall consist of a minimum of six follow-up tests within the first 12 months. The SAP may determine after 12 months. The qualified professional may determine after 12 months that additional testing is necessary. Follow-up testing shall not exceed 60 months following the employee's return to duty.
Discipline and Termination
Any employee who engages in prohibited conduct shall be subject to disciplinary action, including termination of employment.
The district subscribes to a zero tolerance philosophy unless otherwise stated.
1. The employer shall distribute this regulation to every covered employee, on an individual basis, prior to the start of alcohol and controlled substances testing. The employer shall also distribute this regulation to every covered employee hired after the adoption of the regulation, and to every covered employee transferred into a position requiring possession of a commercial driver's license. The employer reserves the right to contract with independent agencies to provide services connected with this regulation.
2. Employees will be required to sign a statement acknowledging receipt of the regulation.
3. The person responsible for answering employee questions concerning this regulation shall be the Superintendent.
The employer shall retain all records in accordance with applicable federal law, as set forth in Appendix A.
The regulation shall take effect January 1, 1996.
UNITED SAFETY CODE 7-TITLE 49, 2717
CODE OF FEDERAL REGULATIONS, 7-TITLE 49, 40, 382
RegulationDELANO JOINT UNION HIGH SCHOOL DISTRICT
approved: December 12, 1996Delano, California