HomeMy WebLinkAboutMINUTES - 07171990 - IO.7 1 .0.-7
To: I BOARD OF SUPERVISORS 5 _L _ Contra
FROM: Costa
INTERNAL OPERATIONS COMMITTEE
County
DATE: July 9, 1990 00-a coons `P�
SUBJECT: STATUS REPORT ON IMPLEMENTATION OF THE DRUG AND ALCOHOL
ACTION PLAN
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
1. Acknowledge the fact that the County Health Services
Department has been granted $100, 000 to assist the County in
undertaking a major planning effort in the area of alcohol
and drug programs consistent with current state law.
2. Request the Health Services Department to video-tape any
significant drug or alcohol program activities which occur
in the next few months, either for possible use in
conjunction with the media event on September 7, 1990 or
independent of that event and in an effort to document those
activities in which the County is engaged which are worthy
of documentation in this manner.
3 . Express the Board's appreciation to the Health Services
Director and his staff, particularly Chuck Latting, for the
outstanding effort which produced the attached material on
how a private sector employer can develop a Workplace
Substance Abuse Policy for its workplace and encourage its
distribution to as many employers as possible over the next
several months.
BACKGROUND:
On July 9, 1990, our Committee met with the Health Services
Director, Chuck Latting, Sheri Cramer and Jerry Nava to update us
CONTINUED ON ATTACHMENTY- eS YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD ITT
APPROVE OTF��
SUNNE WRIGHT MCPEAK TO POWERS
SIGNATURE(S):
ACTION OF BOARD ON July 17 , 1990 APPROVED AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT I . I V ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
CC: County Administrator ATTESTED 117 /990
Health Services Director PHIABATCHIrLOR,CLERKOFTHEBOARDOF
SUPERVISORS AND COUNTY ADMINISTRATOR
BY ,DEPUTY
M382 (10/88)
on the most recent efforts which have been undertaken toward
implementation of the Drug . and Alcohol Action Plan.
We learned from the Health Services Director that the County has
received a $100,000 grant to conduct planning toward an
integrated planning process for drug and alcohol programs in this
County, as outlined by Senator Seymour' s SB 2599 (Chapter 983 ,
Statutes of 1988) .
We are urging the Health Services Department to document
significant conferences, programs, and other events which take
place over the next several months, regardless of whether they
are going to be reflected in the media event being planned for
September 7, 1990.
We will continue to receive and share with the full Board of
Supervisors those activities in support of the Drug and Alcohol
Action Plan which appears to be worthy of being highlighted in
this manner.
Developing A
Workplace Substance Abuse Policy
Cal• � f
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You can create an environment where the
abuse of alcohol and the use of illegal drugs
is not tolerated.
Health Services Department
Alcohol and Drug Abuse Programs
'A
Contra
CostaChuck fatting
(: RCU Drug Free Work Place ,
1 Coordinator
.. (415) 646-1087
Drug Program Administration
595 Center Avenue, Suite 200
Martinez, California 94553
TABLE OF CONTENTS
Drug Screening in the Workplace ................................................................1
PolicyElements .............................................................................................2
Sample Elements of a Policy........................................................................3
Model Substance Abuse Policy ....................................................................5
Sample Policy Statements ............................................................................10
Mt. Diablo Unified School District Policy ......................................................15
Sample Collective Bargaining language .....................................................16
Drug-free Workplace Act..............................................................................25
Drug Detection Periods ................................................................................33
Tracking Sheet for Performance ...................................................................34
Fitness for Drug Review ...............................................................................35
Procedure for Addressing Alcohol and
Other Drug Abuse in the Workplace .............................................................36
Bibliography
Additional Resources
DRUG SCREENING IN THE WORKPLACE
You will discover that many, if not most, of the sample drug policies and
the policy elements .provided in this document refer to screening both
applicants and current employees for drug use.
Many of these policies and the practices set forth in these policies are
being challenged in the court systems of this Country. Therefore, it is
most important that an employer consult an attorney prior to
establishing policies and procedures involving drug screening in the
workplace.
POLICY ELEMENTS
Companies must have a clearly delineated policy on drugs in the workplace. A policy
must have the support of top management, and should be developed in close consultation
with all of the necessary departments including: union, 'personnel, security, legal,
employee assistance, occupational safety and health representatives.
In the interest of fairness and good business practice, a policy statement should be
created and announced to the workforce before instituting the policy. The policy should
be written, clear, acknowledged by each employee, and applied in a fair and consistent
manner.
Drug policies should address issues such as:
• The company's overall position on drug use, including alcohol
• The organization's position on job performance as it relates to
drug use
• The organization's position on safety of the public and co-workers
as it relates to drug abuse
• Any drug deterrence technique, including urinalysis, which will
be utilized
• The consequences of testing positive, including adverse personnel
actions and/or mandatory treatment requirements
• The responsibility of the employee to seek treatment for addiction
problems
• The assistance which will be available to employees with addiction
problems
• The need for strict confidentiality for employees who are in
treatment, and the procedures for dealing with the violation of
confidentiality.
A drug policy will be accepted and supported by employees if it is clearly delineated and
the rationale is understood.
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SAMPLE ELEMENTS OF A POLICY
1. Policy Objectives-The Company has an obligation to its employees, customers, and
the public at large to take reasonable steps to assure safety in the workplace, safety and
quality in the products it sells, and the safety in their distribution.
2. Prohibitions - To this end, the Company reaffirms its policy that the following are
strictly prohibited.
(a) Reporting to work under the influence of intoxicants, drugs, or controlled substances.
(b) The use, possession, transfer, or trafficking of intoxicants, illegal drugs, or controlled
substances in any amount or.in any manner (i) on Company premises or in Company
vehicles at any time, whether or not performing Company business, or (ii) while
performing Company business anywhere,including off-Company property. Any employee
convicted of a felony attributable to the use, possession, or sale of intoxicants, illegal
drugs, or controlled substances on or off Company property will be subject to disciplinary
action,_including immediate.termination.
(c) The use in any way of Company property or the employee's position within the
Company to make or traffic.intoxicants, illegal drugs, or controlled substances.
(d) Any other use, possession, or trafficking of intoxicants, illegal drugs, or controlled
substances in a manner which is detrimental to the interest of the Company.
3. .Notice to Supervisor of Legal Drugs or Medications - Any employee who is
taking a drug or medication, whether or not prescribed by the employee's physician,
which may adversely affect that employee's ability to perform work in a safe or productive
manner is required to report such use of medication to his or her supervisor. This includes
drugs which are known or advertised as possibly affecting judgement, coordination, or
any of the senses, including those which may cause drowsiness or dizziness. The
supervisor in conjunction with the Personnel Department then will determine whether the
employee can remain at work and whether any work restrictions will be necessary.
4. Company's Right To Search - When the Company has any reason to believe that
an employee is violating any aspect of this policy, he or she may be asked by the
Company to submit immediately at any time (including breaks and the lunch period) to
a search of his or her person and/or to make his or her locker, lunch box, briefcase,
purse, pockets, wallet, personal belongings, desk, vehicles, or any other receptacle he
or she uses or has access to, available for inspection. Entry on the Company premises
constitutes consent to searches and inspections. Refusal to consent to a search or
inspection when requested by the Company constitutes insubordination and a_violation
of company policy.
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5. Company's Right to Test - The employee may be asked to submit to a medical
examination and/or eye, blood, urine, or other medical tests.
6. Disciplinary Action for Violation of the Policy - Any employee who violates any
aspect of this policy, including refusal to submit to any of the above-described searches,
inspections, or testing when requested by the Company will be subject to disciplinary
action, which may be immediate termination. When the Company has reason to believe
the employee is violating this policy, the employee. may be suspended immediately
pending investigation.
7. New Hires -All new hires and re-hires of regular full-time or part-time employees may
be required to take a urine or other medical test and to agree in writing to allow the results
of those tests to be furnished to and used by the Company. Those persons who do not
pass such test(s) shall not be employed.
8. Notification of Law Enforcement Agencies and Other Actions - Other actions,
such as notification of law enforcement agencies, may be taken in regard to an employee
Violating this policy at the Company's discretion as it deems appropriate.
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Drugs in the Workplace Committee
Model Substance Abuse Policy
Model Substance Abuse Policy
Definitions as used in this policy:
1. "Substance" means alcohol or drugs.
2. "Alcohol" means ethyl alcohol or ethanol.
3. "Drugs" means any substance taken into the body, other than alcohol, which may
impair one's mental faculties and/or physical performance.
4. "Employee" means all persons who work full time, part time, or under contract for
a company, including management staff.
One of the greatest problems facing our society today is the abuse of drugs and alcohol.
The nationwide impact of substance abuse in the workplace in now estimated to exceed
$30 billion annually. This staggering amount only measures lost productivity and quality;
it does not put a dollar value on personal pain and suffering.
The management of our company is vitally concerned about the well-being of its
employees, our most valuable asset. We are equally concerned that our company's
hard earned reputation and positive image not be compromised in any way.
Alcohol and drug abuse have an adverse effect on job performance, create dangerous
situations, and serve to undermine our customers' and the community's confidence in our
company.
Our company cannot and will not condone drug or alcohol abuse on the part of its
employees, nor will it condone any employee behavior on or off the job that may serve
to damage the company's reputation.
Our policy concerning drug and alcohol use and,abuse is as follows:
1. The company will not hire anyone who is known to currently abuse substances.
2. The company will educate and inform its employees about the health consequences
of drug and alcohol abuse.
3. Employees must report to work in a fit condition to perform their duties. Being under
the influence of drugs or alcohol is not acceptable.
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4. Any employee on company business, on or off company premises, is prohibited from
purchasing, transferring, using, or possessing illicit drugs or using alcohol or
prescription drugs in any way that is illegal.
5. Employees will not be terminated for voluntarily seeking assistance for a substance
abuse problem; however, continued performance, attendance, or behavioral problems
may result in loss of a job.
6. Employees on physician-prescribed medication must notify a designated company
official if there is a likelihood that such medication could affect job performance and
safety.
7. Employees arrested for off-the-job drug or alcohol involvement may be considered to
be in violation of the company substance abuse policy.
8. Where available evidence warrants, the company will bring matters of illegal drug or
alcohol use to the attention of appropriate law enforcement authorities.
Program Options
In order to implement a substance abuse program based upon the above model policy
statement, a company must decide what program options it wants to offer. Suitable
options, and the possible features they might contain, are included for consideration. to
facilitate their review, the option features are synopsized.
Prevention and Education
1. Inform management of the nature, extent, and consequence of substance abuse within
the work force and the prospective work force market, even if specific acts do not
manifest themselves, thereby obtaining a commitment to work towards a drug free
workplace.
2. Disseminate to all managers, employees, and prospective employees, the company's
written policy on substance abuse through the usual route of personnel communications.
3. Provide employees, with the aid of employee groups if appropriate, accurate
information on the legal, physical, and psychological consequences of on-the-job and off-
the-job substance abuse.
4. Train all supervisors and, where appropriate, representatives of employee groups,
about drugs and paraphernalia, signs and symptoms of substance abuse, and
performance deterioration signals, which aids them in implementing the company's
substance abuse policy.
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5. Provide a list of public and private resources available to managers and employees
that will assist them in addressing their substance abuse prevention, intervention, and
treatment needs.
Enforcement and Performance
Drug Testing
1. Each employer should consider the value of pre-employment drug testing for all
appropriate applicants. Obviously such pre-employment testing must be within the
boundaries of existing law, economically feasible for the employer, and based upon a
careful analysis of the positions for which testing is required.
2. Each employer should consider the value of "for cause" drug testing and testing that
is provided within a treatment program. Employers should, when there are clear
indications of performance problems that are related to drug use, require that individuals
submit to an established testing protocol. Similarly, individuals enrolled in treatment
programs may be required to submit to drug testing.
3. Employers should require random testing for all employees in appropriately designated
sensitive positions.
4. Employers should require random testing during any routinely required physical
examination.
5. Any drug testing must be carried out in compliance with carefully developed,
comprehensive testing protocols that have been reviewed by and disseminated to all
employees. The committee has reviewed various protocols and recommends that
employers consider the drug testing standards contained in Mandatory Guidelines for
Federal Drug Testing Programs.
Detecting Substance Abuse
1. All managers and supervisors should be trained to identify job performance problems
that may be caused by substance,abuse, and to be aware of the appropriate response
to such employees.
2. Employers should consider establishing some method that would enable employees
to confidentially or anonymously report any drug supplier in the workplace. Obviously,
the method must be used with full respect for the rights of all parries concerned.
Information received through this method should be thoroughly and completely
investigated before any action is taken by the employer.
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The Role of Law Enforcement
1. Employers should meet with appropriate local government agencies (e.g., law
enforcement agency, office of alcohol and drug abuse coordination, etc.) to establish an
agreement concerning the role eachwill play in responding to drug abuse in the
workplace. 'Such an agreement usually should begin with an assessment of the situation.
An effort should be made to determine the knowledge and understanding the employer,
key managers, and line supervisors have regarding drugs in the workplace. If training is
required basic training may be provided to supervisors and managers.
2. In emergency situations, such as when the sale or use of illegal drugs is observed,
local law enforcement should be contacted using the appropriate emergency phone
number. The employer should, as with any emergency situation, be able to describe the
activity observed, identify involved persons and witnesses, etc.
3. If an employer suspects specific substance abuse acts are occurring within the
workplace but has no direct knowledge of such activity, local law enforcement should be
contacted to discuss what kind do investigation is most appropriate.
4. Employers should understand that when assistance is requested from local law
enforcement and criminal proceeding is subsequently initiated, they will be expected to
support the criminal proceeding by testifying, providing paid release time for others to
testify, etc.
Rehabilitation
1. Companies should consider implementing employee assistance programs (EAPs)
because these programs have a positive impact on people with problems, facilitate
positive management/labor relations, encourage problem resolution, maintain an
employee's dignity and confidentiality, and provide a return on the company's investment.
2. An EAP should be open to all employees on a self or supervisory referred basis for the
purpose of information, advice, referral, or counseling. The purpose of counseling in the
EAP is to assist employees with problems which impact adversely upon work performance
or conduct. When these problems are effectively confronted and treated, the employees
are expected to become healthier, better adjusted individuals and are likely to perform
more productively in their jobs.
3. Supervisors and other appropriate management and union personnel should be
trained in recognizing employees with problems and how to utilize the EAP.
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4. Except for limitations on sensitive positions, no employee's job security or promotion
opportunity should be jeopardized by a request for counseling or outside referral
assistance from the EAP in connection with alcohol, drug abuse, or emotional problems.
5. An EAP should operate under a clearly defined policy which outlines the purpose of
the EAP, organizational and legal mandates, employees' eligibility, roles and
responsibilities of various personnel in the organization, and procedures for program use.
6. A company should review its health benefits package for the purpose of determining
adequacy of coverage for alcohol and drug abuse problems.
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r .
EMPLOYEE ASSISTANCE PROGRAMS
Sample Policy Statements
Clear and concise organizational policy regarding drugs in the workplace is an important
component of any effective workplace drug abuse program. Most of the policy
statements following are from medium-sized to large organizations having Employee
Assistance Programs, so that the policy also is intended to cover EAP operations.
Policy of a large Petrochemical Company
The company believes that alcohol or drug abuse is an illness requiring medical treatment.
It will therefore (a) encourage affected individuals to seek medical help voluntarily at an
early stage; (b) assist supervisors in dealing with associated problems related to work
performance; (c) discourage supervisors,fellow employees, and possibly family members
from."covering up" for the affected individual.
Medical treatment may be obtained by (a) voluntary referral-an employee who feels that
he or she may have an alcohol or other drug problem is encouraged to seek the advice
and help of the company medical department, his private physician, or any agency with
special interest in this field. When the help of the medical department is sought on a
voluntary basis the case will be handled confidentially, as in any other kind of illness; (b)
mandatory referral-an employee may be referred by management to the regional health
center for medical help because of deteriorating job performance or excessive
absenteeism associated with abuse of alcohol or drugs.
Eligibility of benefits. Since problem drinking and misuse of drugs are treatable
illnesses, an employee will be eligible for temporary disability benefits while he cooperates
in taking any medical treatment prescribed and conscientiously endeavors to regain
normal health.
Failure to respond to treatment. Addiction to alcohol or drugs is not, in itself, sufficient
grounds for payment of extended disability benefits or retirement under Section 2.2(c) of
the retirement plan. Failure to follow prescribed medical treatment or to improve work
performance to an acceptable level will be justification for termination of employment on
the same basis as any other employee whose work performance is unsatisfactory.
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Effect on company rules. It is emphasized that recognizing alcoholism or drug abuse
as an illness does not detract from local rules and regulations in respect to intoxication
on the job, or having liquor on company property, which should continue to be enforced.
Policy of a Large Public Company
(An Overview states the company's concern about alcohol and drug abuse as it affects
job performance and the work environment, and as it undermines the public's confidence
in the company.)
The company will take action against employees who use, distribute, or possess
controlled substances on or off the job, and who violate company rules in reference to
possession of alcohol on the job.
Employees must report to work in a fit condition for duty. Being under the influence of
alcohol or drugs is prohibited.
Alcoholism and drug abuse are recognized as illnesses or "disorders" and the company
accepts responsibility for providing channels of help, but it is the employees' responsibility
to seek help.
If the employee seeks help prior to discovery, then confidentiality, job security, and
promotional opportunities will be protected. But if the employee does not seek help and
the problem in some way comes to the attention of the company, then disciplinary action
will result.
Employees who use or distribute drugs on the job are subject to discharge, and any
drugs confiscated will be turned over to local law enforcement.
If an employee is arrested off the job for drug involvement, the company will consider
-various circumstances surrounding the arrest before taking action.
If an employee is under treatment with a drug that could alter his or her ability to do the
job, the employee could be subject to reassignment. Each employee is requested to sign
the policy statement.
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Policy of a Large Chemical Manufacturing Company
In order to assure a safe and efficient work environment, the following policy has been
adopted to supplement existing personnel policies, practices, and procedures;
Impairment Prohibited
No employee will report for work or will work impaired by any substance, drug or alcohol,
lawful or unlawful, except with management's approval; such approval will be limited to
lawful medications and based strictly on an assessment of the employee's ability to
perform his/her regular or other assigned duties safely and efficiently. "Impaired" means
under the influence of a substance such that the employee's motor senses (i.e., sight,
hearing, balance, reaction, reflex) or judgement either are or may be reasonable
presumed to affected. Any violation of this policy may result in summary discipline, up to
and including discharge.
Possession Prohibited
No employee at any work site will possess any quantity of any substance, drug or alcohol,
lawful or unlawful, which in sufficient quantity could result in impaired performance, except
for authorized substances. "Work site" means any office, building, or property, (including
parking lots) owned or operated by the employer, or any other site at which an employee
is to perform work for the employer. "Possess" means to have either in or on an
employee person, personal effects, motor vehicle,tools, and areas substantially entrusted
to the control of the employee such as desks, files, and lockers. Authorized substances
include only (1) lawful over-the-counter drugs (excluding alcohol) in reasonable amounts;
and (2) other lawful prescription drugs or alcohol, the possession of which management
has been advised and approved in advance. Any violation of this policy may result in
summary discipline, up to and including discharge.
Substance Screening
For purposes of assuring compliance with the above, both employees and applicants for
employment may be subject to substance screening under the circumstances described
below. "Substance screening" means testing of blood, urine, breath, saliva, or otherwise
as reasonably deemed necessary to determine possession or impairment, and the
completion of a substance use questionnaire.
Applicants. Prior to assuming any job, an applicant will be subject to substance
screening incident to a preemployment physical. Refusal to submit to such screening will
make it impossible to medically classify the applicant,foreclosing any further action on his
employment.
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Employees. The substance screening of employees will be the determination of a
component/unit. Any such screening will be under the circumstances described below.
Before the implementation of any such substance screening, classes of employees that
will be subject to inclusion will be so notified.
Suspected impairment. When there is reasonable evidence to suspect any employee
has reported to work or is working impaired, he or she may be subject to substance
screening. Refusal to submit to such screening will be considered an act of
insubordination, with attendant disciplinary and employment consequences.
Post Accident/Incident
Any employee involved in either a job-related accident or job-related incident involving the
apparent violation of a safety rule or standard, which did or could have resulted in serious
injury or property damage, may be subject to substance screening. Refusal to submit to
such screening will be considered an act of insubordination, with attendant disciplinary
and employment consequences.
Safety Critical Jobs
Employees holding safety critical jobs may be subject to substance screening at any time
on a random or other nondiscriminatory basis, as a term and condition of holding such
jobs. Only those jobs the performance of which requires a high degree of care and
caution in execution that even minor impairment would constitute an imminent hazard will
classified as "safety critical." Incumbents of such jobs will be so notified. Upon request,
employees will be considered for reassignment to a non-safety critical job that may be
available providing they are qualified and such reassignment is consistent with applicable
personnel policies and/or contractual requirements. Any refusal by an incumbent of a
safety critical job to submit to substance screening will be considered an act of
insubordination, with attendant disciplinary and employment consequences.
Inspections
For purposes of assuring compliance with the prohibition of possession, employees may
be subject to inspections of the kinds and under the circumstances described below. Any
refusal to submit to such an inspection will be treated as an act of insubordination, with
attendant disciplinary consequences.
Without cause. An employee's locker, closet, work area, desk, files, company motor
vehicle, and similar areas are subject to inspection at any time on a random or any other
nondiscriminatory basis for purposes of this program. Similarly, an employee's own car,
lunch box, and like personal containers are subject to such inspection when brought onto
any work site.
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Administration
Privacy. The results of any program screening will be considered a .medical report
disseminated only in strict compliance with the Company Occupational Health/Medicine
Information "Confidential
Policy".
Handicaps. The program will be administered so as not to interfere with the rights of
handicapped applicants and employees, except to the extent any substance abuse
handicap would directly interfere with job performance.
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MT. DIABLO UNIFIED SCHOOL DISTRICT
DRUG ABUSE POLICY
Personnel - Certificated
Rights, Responsibilities, Duties
Drug Free-- orkplace
Pursuant to the requirements of the Drug Free Workplace Act of 1988 (Public Law 100-
690, Title V, Subtitle D), it is the policy of the Mt. Diablo Unified School District to continue
to provide a drug free workplace.
The manufacture, distribution, dispensing, possession or use of a controlled substance
is prohibited in the workplace. The workplace includes all facilities under the control and
use of the district.
Any violation of this prohibition by an employee of the Mt. Diablo Unified School District
may result in (1) requiring such employee to participate satisfactorily in a drug abuse
assistance or rehabilitation program; or (2) disciplinary action up to and including
termination.
PLEASE NOTE
(Each employee must sign that they have read and understand the above statement)
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SAMPLE COLLECTIVE BARGAINING LANGUAGE
SUBSTANCE ABUSE POLICY
Prepared by The Baking Industry
and Teamster Labor Conference
(BITLC) under a grant from the
Federal Mediation and Concilia-
tion Service through its new
Labor-Management Cooperation
Programs initiative.
WHEREAS, the Employer and the Union acknowledge that substance abuse is a serious
and complex, but treatable condition/disease that negatively affects the productive,
personal, and family lives of employees and the stability of companies; and,
WHEREAS, the Employer and the Union are committed to addressing the problems of
substance abuse in order to ensure the safety of the working environment, employees,
and the public, and to providing employees with access to necessary treatment and
rehabilitation assistance; and
WHEREAS,the Employer and Union have defined a program of employee assistance and
have provided coverage to assure that employees requiring treatment and rehabilitation
resulting from their substance abuse can receive such services without undue financial
hardship;
NOW THEREFORE, the Employer and the Union agree that,
1. Appropriate efforts will be undertaken by the Employer and the Union to establish
employee understanding that the experience of alcohol or drug problems is not, of itself,
grounds for adverse action. Employees will be strongly encouraged to seek and receive
the services of the employee assistance program prior to such problems affecting job
performance or resulting in on the job incidents.
When the Employer has a reasonable suspicion based on objective criteria that an
employee is under the influence of alcohol or drugs, hereinafter referred to as 'substance',
the Employer may require that the employee immediately go to a medical facility to
provide both urine and blood specimens for the purpose of testing and to receive a fitness
for work examination by a licensed physician.
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Reasonable suspicion based on objective criteria means suspicion based on specific
personal observations that the Employer representative can describe concerning the
appearance, behavior, speech, or breath odor of the employee. 'Suspicion is not
reasonable, and thus not a basis for testing if it is based solely on third party observations
and reports.
2. The requirement for this testing shall be implemented where practicable, in accordance
with the following procedures:
(a) When the Supervisor has established a reasonable suspicion that an employee may
be under the influence of substance(s), based upon specific, individualized observations,
the Supervisor shall contact another Supervisor or management employee, for purposes
of confirming the reasonable suspicion. The Supervisor shall contact the Business Agent,
Union Steward, or other bargaining unit employee for the purpose of informing and
involving the appropriate and available Union representative in the immediate situation.
In the presence of the employee and Union representative, the Supervisor shall present
the observations establishing the reasonable suspicion. The employee shall, upon
hearing the Supervisor's confirmed observations, receive a written description of his/her
rights, obligations, and options and shall be presented with the opportunity to immediately
self-refer to the employee assistance program.
(b) While the observation of the Business Agent, Union Steward, or other bargaining unit
employee, may be solicited and are relevant in the context of the joint Employer/Union
commitment to addressing the problem of substance abuse, Union representatives will
not be expected to give their assent to the Supervisor's decision to require testing or to
take other management action.
(c) An employee who does not self-refer into the employee assistance program and
refuses to go to a medical facility, after being informed of the observations establishing
reasonable suspicion and of the requirement for immediate fitness for work examination
and provision of blood and urine samples, will be discharged.
If requested, the employee shall sign consent forms authorizing : (1) the medical facility
to withdraw a specimen of blood and urine; (2) authorizing the testing laboratory to
release the results of the testing to the medical facility for physician review and to the
Employer; and (3) at the employee's discretion, he/she may authorize the same release
as defined in (2) to the Union. By signing these consent forms, the employee does not
waive any claim or cause of action under the law. An employee's refusal to sign the
release shall constitute a refusal to be examined and tested subject, however, to Section
2.(d) below.
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(d) An employee who refused to be_examined and tested shall be encouraged to go to
the medical facility for this purpose with the understanding that blood and urine samples
drawn will not be tested unless that employee, within twenty-four (24) hours, authorizes
that these be tested.
If, at the end of this period, the employee still refuses to have the samples tested, the
employee will be discharged unless the employee agrees, within the same twenty-four (24)
hour period to self-refer into the employee assistance program.
(e) The employee to be tested shall be taken to the medical facility by an Employer
representative and, at the request of the employee, the Business Agent, Union Steward
or other bargaining unit employee.
(f) In an effort to protect individual privacy, employees will not be subject to direct
observation while rendering urine samples. if the employee provides blood and/or urine
samples that contain confirmed evidence of any form of tampering or substitution, the act
shall constitute a refusal to be tested and the employee shall be discharged.
(g) Blood and urine samples shall be drawn, subject to the provisions in Section 3 below.
Upon receipt of the'specimens by the laboratory, one of the two urine specimens will be
placed immediately, unopened, in a locked freezer for storage for a period of six months.
Employees may, within twenty-four (24) hours of receipt of test results, request the
presence of an approved, consulting toxicologist during the full conduct of a second,
independent test to be conducted at the laboratory site. Employees requesting
independent tests are liable for the costs of the second test and the consulting toxicologist
unless the employee's second test results are negative.
In cases of second tests, the urine specimen alone will be used as this fluid better retains
the integrity of its chemical contents. Because some drugs/drug metabolites deteriorate
or are lost during freezing and/or storage, the retesting of specimens is not subject to
the same testing level criteria as were used in the original analysis.
(h) Employees subject to the requirements for testing shall be suspended, effective
immediately after receipt of the fitness for work examination and rendering of samples, for
the period of time required to process, screen, and confirm test results.
(i) Employees whose test results are negative, and who pass the fitness for work
examination, shall be reinstated with back pay for the period of suspension, except as
provided in Section 4 (a) below. Employees whose test results are positive shall not be
eligible for reinstatement with back pay but shall be given the opportunity to immediately
self-refer into the employee assistance program. In the absence of immediate self-referral,
such employees will be discharged.
18
3. The examination and testing procedures and standards to be carried out by the
medical facility personnel and testing laboratory shall be those adopted by the Employer
and the Union, shall use the blood alcohol level established by State law for intoxication,
shall rely in the testing for drugs other than alcohol, on the urine specimen to test for the
presence of drugs and/or their metabolites, shall consider'presence' only and not degree
of intoxication or impairment,and shall include the following general components:
(a) Rigorous review, selection, and performance monitoring of medical facilities
performing the examination and specimen collection and of the laboratory facilities
performing the tests.
(a.1) Medical Facilities
Medical facilities performing the examination and specimen collection must be under the
direction of a licensed physician. The facility must employ at least one charge nurse who
is a registered nurse.
A licensed physician must perform the fitness for work examination and review the
laboratory reports of drug tests. The physician must have knowledge of substance abuse
disorders and must possess the appropriate medical training to interpret and evaluate all
positive test results together with the employee's medical history, including medications
use, and any other relevant biomedical information.
The medical facility must possess all necessary personnel, materials, equipment,facilities,
and supervision to provide for the collection, security, temporary storage, and
transportation (shipping) of blood and urine specimens to the drug laboratory. The
medical facility must provide written assurances that the specimen collection space is
secure; that chain of custody forms will be properly executed by authorized collection
personnel upon receipt of specimens; that the handling and transportation of specimens
from one authorized individual or place to another will be accomplished through the use
of chain of custody procedures; and that no unauthorized personnel are permitted in any
part of the specimen collection or storage spaces.
(a.2) Laboratory Facilities
-Laboratory facilities must comply with applicable provisions of any State licensure
requirements and must be approved by the BITLC and/or the parties to the agreement.
BITLC approval of a laboratory shall be contingent upon successful demonstration and
on-site review establishing that the laboratory meets the standards for accreditation
promulgated by the National Institute on Drug Abuse and upon the laboratory's ongoing
participation in a program of external quality assurance. These standards may be revised
as recommended by the National Institute on Drug Abuse
19
(b) Specific specimen collection procedures that include safeguards to ensure the
employee's right to privacy.
Authorized specimen collection personnel shall request that the employee show positive
identification by providing a pictured identification card such as a driver's license and shall
assure that the employee signs the waiver agreement that explains the procedures for
testing and reporting results. These personnel shall remove all articles and items from
the collection space or bathroom, shall assure that toilet water is colored or blued, shall
turn off the hot water valve under the sink, shall assume that the tamper-proof specimen
collection kit is intact, and shall instruct the employee to wash and dry hands prior to
entry. Employees shall remove all excess clothing and leave belongings outside the
bathroom and shall provide urine samples in two containers. Employees will not be
subject to direct observation while rendering samples. Authorized specimen collection
personnel shall, however, be present outside the bathroom and shall receive containers,
assure that the quantity is sufficient for testing, check color and measure the temperature
of each container and record same. These personnel shall fill in specimen labels in the
presence of the employee, shall cap and seal containers with evidence tape and shall
secure the employee's initials on the tape.
(c) Flawless chain of custody procedures governing specimen handling throughout the
testing process. Chain of custody procedures shall assure that blood and urine samples
shall not leave the sight of the employee until each vial has been sealed and initialed and,
that at least the following'measures are taken by medical facility and laboratory staff:
(c.1) Medial Facilities
Authorized medical facility personnel shall seal specimen tubes with evidence tape in the
presence of the employee and the employee shall initial the evidence tape. These
personnel shall complete a chain of custody form and shall place the sealed and initialed
specimen tubes in the drug collection kit or box provided by the laboratory along with the
chain of custody form and signed waiver. The collection kit or box shall be sealed by
authorized medical facility personnel and this seal or tape shall be initialed by these
personnel and by the employee.
The medical facility shall make prior arrangements for courier pickup of the specimens
and shall assure that all specimens are couriered or shipped to the testing laboratory as
immediately as possible. The medical facility shall assure that no specimens will be
.shipped on a friday or the day before a holiday and that any specimens held at the facility
overnight shall be placed in a secured refrigerator until courier pickup.
20
(c.2) Laboratory
the testing laboratory shall assure that personnel authorized to receive specimens
immediately open the package, inspect the sealing tape for initials, and open the kit or
box. These personnel shall examine and inspect the chain of custody form,the specimen
tubes, and kit or box to assure that it conforms to the requirements of Subsection c.1
(above). If these requirements are not met, the laboratory personnel shall immediately
notify the laboratory's scientific director and shall document any and all inadequacies in
the chain of custody requirements. The laboratory's scientific director shall immediately
notify the medical facility, the Employer and the Union of the inadequacies and shall retain
the specimens in a locked freezer pending disposition direction.
If the requirements are met, authorized laboratory personnel shall sign on-the appropriate
line of the chain of custody form and deliver the specimen kit or box to authorized
laboratory technologists for testing. Each technologist shall sign on the appropriate line
of the chain of custody form.
All positive samples shall be secured with evidence tape, signed and dated by an
authorized technologist. Upon completion of testing procedures, testing reports shall be
prepared and signed by at least two authorized technologists for the review, approval, and
signature of the scientific director.
(d) Established levels below which specimens are deemed negative:
Drug Assay Screening
Cut off level
Blood Alcohol 100 mg/dl
Cocaine Metabolite 300 ng/ml
Phencyclidine 25 ng/ml
Opiates 300 ng/ml
Amphetamine 1000 ng/ml
Cannabinoids 100 ng/ml
(e) Laboratory use of appropriate screening and confirmation procedures and
technology.
The laboratory shall assure that each specimen will be screened by an immunoassay
method i.e., EMIT, RIA, FPI, for each drug/drug group. Each specimen shall also be
analyzed for acid, neutral and basic drugs by thin layer chromatography (TLC).
21
If either or both of these assays are positive, and intermediate screening procedure shall
be performed by a second, authorized laboratory technologist using a more specific TLC
procedure, an alternate second immunoassay method, and/or a high pressure liquid
chromatography.
Gas chromatography/mass spectrometry (GC/MS) must be sued as the final confirmation
method. All three tests must be positive before a specimen is reported as positive.
Blood and urine ethanol testing shall be performed by gas chromatography (GC) and, if
positive, a second GC column shall be used. If results are positive on both columns,
fluorescent polarization immunoassay (FPI) or an enzymatic assay shall be use as the
third and confirming test.
Final confirmation by gas chromatography/mass spectrometry(GC/MS) and/or
fluorescent polarization immunoassay (FPI) shall be subject to the following levels below
which specimens are deemed negative:
Drug Assay Screening
Cut off level
Blood Alcohol * 100 mg/di
Cocaine Metabolite 150 ng/ml
Phencyclidine 25 ng/ml
Opiates 300 ng/ml
Amphetamine 300 ng/ml
Cannabinoids 20 ng/ml
* Subject to Section 3
Screening methods measure a group of drugs and/or their metabolites simultaneously.
Confirmatory methods, on the other hand, measure single and specific drugs and/or their
metabolites. Cut off levels for confirmatory methods, therefore, may be lower than those
for initial screening.
(f) Procedures to assure the confidentiality of test results and the treatment of these
records as confidential health information or data.
The laboratory shall ensure that testing reports, including the original chain of custody
form, are mailed to those personnel authorized by the medical facility, the Employer, and
if the employee so chooses, by the Union immediately and shall ensure that, in the event
that telephone reports of testing results are required by the medical facility, the Employer
and the Union, a security code system be used to establish that results are being verbally
reported only to those individuals authorized by the medical facility, the Employer and by
the Union.
22
A. After examination and specimen testing results, the following shall apply:
(a) If an employee is subject to discipline or termination under existing practices, such
employees shall not utilize the substance abuse policy to circumvent the labor agreement
to existing practices or to avoid discipline or termination.
(b) In the cases not covered in Section 4(a) above, the employee will have the
opportunity for appropriate assistance, assessment, referral, treatment, and aftercare as
provided in the employee assistance program and as agreed in the employee assistance
program's individual treatment plan with the employee. Failure to seek and receive these
services or failure to abide by the terms of the treatment plan shall be grounds for
discharge.
(c) An employee who seeks and receives assistance and who completes the defined
employee assistance program shall, upon return to work, be subject to random and
mandatory tests for a period of nine (9) months.
(d) An employee who, on the basis of such random and mandatory tests defined in 4 (c)
above, provides samples that contain positive and confirmed evidence of substances at
or above the stipulated levels, shall not be give a second opportunity to access the
employee assistance program as an alternative to discharge.
(e) Employees who successfully complete the employee assistance program and their
individual treatment plan agreements and who return to work will be encouraged to
contact and avail themselves of the employee assistance program's services on a self-
referral basis whenever they desire ongoing assistance and support.
Employees who relapse and for whom reasonable suspicion of substance use is
established a second time, and whose test results are positive, will be subject to the
disciplinary procedures up to and including discharge. The Union and Employer may
agree, however, to consider such mitigating factors as the employee's length of sobriety,
job performance, length of service, etc. in such situations.
5. The employee assistance program shall include the following components:
(a) Full clinical evaluation and appropriate assessment followed by a specific individual
treatment plan and regimen for the receipt of counseling,treatment, aftercare, and related
services subject to the ongoing monitoring of the employee assistance program staff.
(b) Active encouragement and procedures for the voluntary and self referral of troubled
employees to the employee assistance program in cases in which reasonable suspicion
has not been established and in which examination and testing procedures are not
invoked.
23
}
(c) Assurances and procedures to protect the confidentiality of employees who voluntarily
seek employee assistance program services; procedures governing the management of
such employee records as medical information.
6. Any disputes arising under this addendum shall be subject to the grievance procedure
established in the labor agreement, up to and including arbitration.
24
DRUG-FREE WORK PLACE ACT
title 41 , U.S. Code, Sec. 701
A. Statute:
DRUG-FREE WORKPLACE ACT of 1988: . The law requires federal contractors (with
contracts of $25,000 or more) and grantees to achieve and maintain a "drug-free
workplace". The Act became effective on March 18, 1989. Specifically, the Act requires
the covered contractor or grantee to certify that it is providing a drug-free workplace by:
1. Publishing a statement notifying employees that the unlawful manufacture,
distribution, dispensation, possession, or use of a controlled substance is
prohibited in the workplace, and specifying the actions that will be taken if the
prohibition is violated.
2. Establishing a drug-free awareness program to inform employees about:
(a) The dangers of workplace drug abuse:
(b) The employer's drug-free workplace policy;
(c) Any available drug counseling, rehabilitation, and employee assistance
programs; and
(d) The penalties applicable to employees for drug abuse violations.
3. Requiring that each employee engaged in the performance of the grant or
contract be given a copy of the employer's anti-drug statement.
4. Notifying each employee, by means of the written statement that, as a condition
of employment on the grant or contract, each employee must:
(a) Abide by the terms of the statement; and
(b) Notify the grantee or contractor of any criminal drug statute conviction for a
violation occurring in the workplace no later than 5 days after such conviction.
5. Notifying the contracting agency within 10 days after receiving notice of an
employee's workplace-related criminal drug conviction.
6. Imposing a sanction on, or requiring satisfactory participation in an employee
assistance or rehabilitation program by, any employee convicted of a workplace
-related criminal drug conviction. the Act specifically states the sanction can
include discipline up to or actual termination of the employee.
7. Making a good faith effort to continue to maintain a drug-free workplace by
implementing the six requirements just described.
Contractors who falsely certify that they are providing a drug-free workplace, or
who fail to carry out the requirements described above, are subject to contract
suspension, or termination, or both. In addition, the contractor can be debarred
from future..government work for up to 5 years.
25
REGULATIONS
1. Drug-Free Workplace Act Regulations, issued by the Office of Federal Procurement
Policy, 54 Fed. Reg. 4945 (January 31, 1989). The regulations implement the Act, and
provide a series of Questions and Answers (text included herein).
2. Department of Defense "Drug-Free Workforce" Regulations, 53 Fed-Reg. 37763
(September 28, 1988).
On September 28, 1988, the Department of Defense issued an interim final regulation
requiring defense contractors to maintain a program for achieving a drug-free workforce.
The interim rule went into effect on October 31, 1988. To meet the requirement, certain
DOD contractors must include a "drug-free workforce" clause in"
- All contracts that involve access to classified information;
- Any other contract when the contracting officer determines that inclusion of
the clause is necessary for reasons of national security or for the purpose of
protecting the health or safety of those using or affected by the.product of or
the performance of the contract (except for commercial or commercial-type
products).
Under this rule, DOD contractors must"institute and maintain a program for achieving the
objective of a drug-free work force," including an employee assistance program,
supervisory training to spot drug use, provisions for employee self-referrals for treatment,
and "testing on a controlled and carefully monitored basis."
Unlike the Drug-Free Workplace Act, covered contractors must establish a program for
testing of employees in sensitive positions, defined as those employees working with
classified information or in jobs involving health, safety, trust, or confidence. The
contractor has significant discretion, however, as to the extent and criteria of such testing
and for determining who these sensitive employees are. In addition, contractors are
permitted -- but not required -- to establish a drug testing program where there is
reasonable suspicion to believe an employee is using illegal drugs, when an employee is
involved in an accident or unsafe practice, and as part of a follow-up to drug counseling
or rehabilitation. The contractor also may establish a program for pre-employment drug
screening of applicants. Employees who are found to be drug users are not permitted
to remain in or return to a sensitive position until such time as successful rehabilitation has
been achieved. . the DOD is expected to issue a final drug-free workforce regulation
sometime during 1989.
26
3. Department of Transportation Regulations
Six separate agencies within the Department of Transportation -- the Federal Railroad
Administration (FRA), the Federal Highway Administration (FHWA), the Federal Aviation
Administration (FAA), the Research and Special Programs Administration (RSPA), the
Coast Guard, and the Urban Mass Transportation Administration (UMTA) — all have
issued drug testing requirements applicable to private sector employers under its
jurisdiction. 53 Fed. Reg. 47001 (Nov. 21, 1988).
Each of the DOT agency drug testing regulations has features which are unique to the
sector being regulated. Ukewise, there are variations in the wording, organization, and
effective dates among the regulations. Nevertheless, the following basic elements are
common to each of the individual regulatory programs.
• Mandatory pre-employment testing for safety-sensitive positions
• Mandatory employee testing for safety-sensitive positions
(a) On a periodic basis
(b) For reasonable cause
(c) After a serious accident; and
(d) Random
• Mandatory written Employer Anti-Drug Policy
• Mandatory employee and supervisor training
• Employer discretion regarding discipline/rehabilitation
• Mandatory employee assistance programs including a requirement for
designation of a "Medical Review Officer"; and
• Preemption of inconsistent state and local laws (except UMTA)
a. Federal Railroad Administration
The FRA was the first DOT agency to promulgate extensive regulations addressing drug
and alcohol testing. Those regulations, which became effective on February 10, 1986,
49 C.F.R. ss219 et seq., requiring drug testing after significant train accidents and
employee fatalities, authorized testing. for "reasonable cause," and permitted pre-
employment drug screens. The FRA recently amended its regulations to add among
other things, mandatory random testing requirements. Random Drug Testing; 53 Fed.
Reg. 47102
27
b. Federal Aviation Administration
The FAA published proposed regulations entitled "Anti-Drug Program for Personnel
Engaged in Specified Aviation Activities" on March 14, 1988. 53 Fed. Reg. 8368 (March
14, 1988). The final anti-drug program is designed to complement already existing FAA
safety programs authorized under the Federal Aviation Act of 1958, as amended by the
Aviation Drug-Trafficking Control Acto of 1984, and the Federal Aviation Administration
Drug Enforcement Assistance Act of 1988. 53 Fed. Reg. 47024.
c. Federal Highway Administration
On June 14, 1988, FHWA proposed drug testing regulations. 53 Fed. Reg. 22268 (June
14, 1988). As in the case of the FAA, the final regulation is designed to complement
existing FHWA programs authorized under the Commercial Motor Vehicle Safety Act of
1986 and Subtitle T of Title 1 of the Anti-Drug Abuse Act of 1986. 53 Fed. Reg. 47134.
d. Research and Special Programs Administration
The final RSPA drug testing regulation, entitled "Control of Drug Use in Natural Gas,
Uquefied Natural Gas, and Hazardous Liquid Pipeline Operation," sets forth regulations
to require operators of pipeline facilities, other than master meter systems, used for the
transportation of natural gas or hazardous liquids and operators of liquefied natural gas
facilities to have an anti-drug program for employees who perform safety-related functions
covered by the pipeline safety regulations. 53 Fed. Reg. 47084.
e. Coast Guard
The Coast Guard's drug testing regulations require the establishment of anti-drug
programs to reduce the incidence of drug abuse by commercial vessel personnel.
Proposed as "Programs for Chemical Drug and Alcohol Testing of Commercial Vessel
Personnel" on July 8, 1988, the final regulation expands the Coast Guard's existing
_-statutory authority to deny issuance of or revoke a license, certificate of registry, or
merchant mariner's document to drug users. 53 Fed. Reg. 47064.
f. Urban Mass Transportation Administration
UMTA's final regulation requires recipients of federal financial assistance from UMTA, and
operators for such recipients, to implement an anti-drug program for safety-sensitive
employees. 53 Fed. Reg. 47156.
28
4. Nuclear Regulatory Commission Regulations
On June 7, 1989, the Nuclear Regulatory Commission (NRC) published final drug testing
regulations for its licensees. 54 Fed. Reg. 24468 (June 7, 1989). The regulations are
similar, albeit differing in industry specific detail, from the DOT agency final regulations
discussed above. Among the modifications made to the Guidelines by NRC are an
expansion of the list of drugs which can be tested for, authority to use more stringent cut-
off levels for initial screens, and permitting the limited use of initial screening testing to
eliminate negative tests.
C. Cases
1. Skinner v. Railway Labor Executive Ass'n, 109 S. Ct. 1402 (1989). In Skinner, the
Supreme Court sanctioned the testing or railway workers pursuant to regulations issued
by the.Federal Railroad Administration. In 1985, the Federal Railroad Administration
(FRA) issued extensive regulations designed "to prevent accidents and casualties in
reared operations that result from impairment of employees by alcohol or drugs."
Recognizing that there had been 34 fatalities, 66 injuries and over $38 million in property
damage in the period between 1975 and 1983,the FRA decided that its regulations should
address the drug and alcohol problem in two ways: 1) require railroads to test
employees who are directly involved in a "major train accident," and "impact accident," or
an accident that involved a fatality to a co-worker; and 2) authorize (not require) railroads
to give tests after a reportable accident whenever a supervisor has reasonable suspicion
that an employee contributed to the cause or severity of the accident; or when railroad
rules --such as a failure to stop or excessive speeding -- are violated. Railway Labor
Executives' Ass'n v. Burnley, 839 F.2d 575, 577-79 (9th Cir. 1988). The Ninth circuit
struck down the regulations as unconstitutional.
The Supreme Court votes 7 to 2 to reverse the Ninth Circuit, and uphold the FRA plan.
Justice Anthony Kennedy, in delivering the opinion of the Court, stated that drug tests are
reasonable in the right circumstances. First, Justice Kennedy stated that the regulations
are reasonable even though the employer is not required to obtain a warrant. Second,
the Court ruled that an employer does not need "probable cause" in order to test. Third,
the Court noted that an employer need not have "individualized suspicion" before testing,
stating that "where the privacy interests implicated by the search are minimal, and where
an important governmental interest furthered by the intrusion would be placed in jeopardy
by a requirement of individualized suspicion, a search may be reasonable despite the
absence of such suspicion."
29
r
Balancing these employee "privacy" interests with the governmental interests, the Court
ruled in the FBA's favor. According to Justice Kennedy, the FRA's interest in regulating
the conduct of railroad employees engaged in safety sensitive tasks in order to ensure
the safety of the traveling public and .of the employees themselves plainly justifies
prohibiting such employees from using alcohol or,drugs while on duty. Comparing the
FRA's safety interest to that of employers in the nuclear industry, the Court indicated its
willingness in the future to give strong deference to drug-free workplace programs
adopted by employers engaged in safety sensitive operations.
On the"employee"side of the balance, Justice Kennedy noted that the testing procedures
contemplated by the regulations pose only limited threats to worker privacy expectations,
particularly since the workers participate in an industry subject to pervasive safety
regulation by the federal and state governments. Justice Kennedy also thought it
important that the FRA did not require the tests in order to prosecute employees under
criminal laws, but rather to prevent accidents and casualties.
2. National Treasury Employees Union v. Von Rabb; 109 S. Ct. 1384 (1989). In Von
Rabb, the U.S. Supreme Court approved the drug testing of safety and security-sensitive
employees by the Customs Service. In the case, a federal employee union challenged
the Customs Service drug testing program. The Service required current employees
who were seeking promotions to "sensitive" positions — such as drug interdiction or jobs
that involved the carving of firearms or access to classified information --to submit to a
drug test. Even though Customs did not have "individualized suspicion" that a particular
applicant had used drugs, and even though Customs was admittedly "largely drug free,"
the Service based its drug testing policy on the belief that workers who used drugs were
particularly subject to bribery and blackmail, and that the use of drugs was a serious
national problem. The union, however, sought an injunction against the implementation
of the program.
A lower court ruled that the program was unconstitutional because it violated the Fourth
Amendment. National Treasury Employees Union v. Von Rabb, 649 F. Supp. 380 (E.
D. LA. 1986). The Court of Appeals for the Fifth Circuit, however, reversed that decision,
ruling that the test was not "unreasonable° because: 1) Customs attempted to minimize
the intrusiveness of the search; 2) Customs had a demonstrated need for its program
given the pernicious impact of drugs on society; 3)the sample is taken in the most private
facility practicable; 4) the test is voluntary in the sense that only applicants must submit;
5) Customs has responsibilities as an "employer of private citizens;" 6) less-intrusive
measures were considered; and 7) Custom's program is effective, primarily because drug
users may choose not to seek sensitive positions 816 F.2d at 177-180.
30
The Supreme Court's ruling in Von Rabb --with a 5 to 4 vote upholding the Fifth Circuit's
decision -- was a much closer case than Skinner. Justice Kennedy again delivered the
opinion of the Court, reiterating that it was unnecessary for Customs to have a warrant,
probable cause or individualized suspicion. Justice Kennedy so reasoned because the
Service;s testing program was not designed to serve the ordinary needs of law
enforcement -- i.e., test results could not be used in a criminal prosecution without the
employees' consent, and the purposes of the program were to deter drug use among
those eligible for promotion to sensitive positions.
The Court again weighed the government's interests against those of the employees. The
Court called the government's interests"compelling," noting that Customs had an interest
in ensuring that front-line interdiction personnel were physically fit and had unimpeachable
integrity and judgement, and that Customs had an interest in preventing the risk to the life
of the citizenry posed by the potential use of deadly force by workers suffering from
impaired perception and judgment The Court then noted the diminished privacy interests
of those seeking promotion into positions involving drug interdiction or the carrying of
weapons. Such workers "reasonably should expect effective inquiry into their fitness and
probity,"and"cannot reasonably expect to keep from [Customs] personal information that
bears directly on their fitness." 109 S. Ct. at 1394.
While the Court made the above rulings for Customs employees who applied for
promotion to positions directly involving the interdiction of illegal drugs, or to positions
which required the carrying of firearms, it did not assess the reasonableness of testing for
those applicants whom Customs claimed would be required to handle "classified
materials,° such as accountants, attorneys, mail clerks and messengers. The Court
simply found that the record was inadequate since it was not clear whetherthese workers
Were likely to gain access to sensitive information. The Court remanded this issue to the
Fifth Circuit to examine the criteria used by Customs in determining what materials were
classified, and to reassess the reasonableness of requiring tests of those employees.
This narrowing of the ruling may indicate a reluctance by the Court to sanction testing
programs that include employees not directly involved in safety or security positions.
3. Johnson-Bateman Co., 295 NLRB No. 26, 131 LRRM 1393 (1989). The National
Labor Relations Board ruled that employers must bargain with a union over the
implementation of a drug testing program for employees.
4. Star Tribune, 295 NLRB No. 63 131 LRRM 1404 (1989). The NLRB ruled, however,
than an employer need not bargain over the testing of applicants.
31
GRANTS
The regulations define°grant°to cover block grants, and entitlement grant programs. The
regulations further define 'grant"to include only direct assistance from and agency to the
grantee.
• The regulations cut off coverage at the first entity that receives the assistance
and exclude subgrantees.
• Medicare third-party payments to hospitals are not covered by DFWP
provisions because the payments are not made by a procurement contract or
grant. Hospitals that do have a procurement contract or grant must comply
with the statute.
• Banks and other financial institutions that sell U.S. Treasury bonds are not
covered by DFWP requirements. However, such institutions that have
procurement contracts or grants must meet the requirements of the statute.
• Existing contracts and grants which are modified or renegotiated on or after
March 18, 1989, will be required to comply with the DFWA at the time of the
modification or renegotiation.
• Contractors and grantees performing work in the federal facilities are required
to comply with the DFWP statute.
32
• ®��/111/l�lll���' /��/I�III���
L45CRATCRIES, INC.
505A O'Brien Orive L.Menlo Park.California 94025 =(415)328-6200= Fax:(41 S)688.1;22
Drug Detection Periods
Drug Category Detection Period'
Amphetamines Stimulants
Amphetamine 2-4 days
Methamphetamine 2-4 days
Barbiturates Sedative Hypnotics
Amobarbital 2-4 days
Butalbital 2-4 days
Pentobarbital 2-4 days
Phenobarbital Up to 30 days
Secobarbital 2-4 days
Benzodiazepines Sedative. Hypnotics
Diazepam (vadum®) Up to 30 days
Chlordiazepoxide (Lbrium®) Up to 30 days
Cocaine Stimulants
Benzoylecgonine 12-72 hours
Cannabinoids (Marijuana) Euphoriants
Casual Use 2-7 days
Chronic Use Up to 30 days
Ethanol Sedative Hypnotics Very shortt
Methadone Narcotic Analgesics 2-4 days
Methaqualone (Quaalude®) Sedative Hypnotics 2-4 days
Opiates Narcotic Analgesics
Codeine 2-4 days
Hydromorphone (Dilaudid®) 2-4 days
Morphine (for Heroin) 2-4 days
Phencyclidine (PCP) Hallucinogens
Casual Use 2-7 days
Chronic Use Up to 30 days
• Detection periods vary; rates of metabolism and excretion are different for each drug and user. Detection
periods should be viewed as estimates. Cases can always be found to contradict these approximations.
t Detection period depends on amount consumed. Alcohol is excreted at the rate of approximately one ounce per
hour.
33
TRACKING SHEET FOR EMPLOYEE
PERFORMANCE PROBLEMS
Nome Action token (note dares"*)
Dept. First warning
Period covered
Supervisor Second warning
PROBLEM AREA DATE COMMENT
ATTENDANCE
(Absonces or tardiness)
PRODUCTIVITY/WORK QUALITY
MISCELLANEOUS (mere wry dient.co-wearer.
source comments or incidents of inappropriate beirariw J
MOOD-ATTITUDE TIME ABUSE, DISTORTIONS WORK QUALITIES
* Dramatic mood swings,high or low 0 Frequent absence from work station. • Cnruentration difficult.
• Anxious.nervous. jittery (&Shined or unexplained) • Poor judgment,even careless or
• Depressed •long hunch periods,acasive breaks reckless.
e Absenteeism.sometimes with o • Difficulty in following directions.
• Defensive • lack of interest in work.
• Irritable M'' • Motivation decrease,apathetic.
• E=sivs sick leave(Frequent colds. • Ov*r-reaction to comments,criticism.
• Paranoid minor iilnesm) • Undue complaints,criticism about
• Accusatory •Often tardy company,fellow workers,
• Argumentative •Misses deadlines and appointments • Rude,abusive.
• Inappropriate. bizarre behavior • Loses pemptaivt of time. • Complaints from co-workers,clients.
etc.
34
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Bibliography
NOTE: This Bibliography contains only recent Battling the enemy within. Time, March 17,
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5
Additional Resources
Employers considering implementation of a in a large manufacturing/shipping worksite.
workplace drug abuse program may find useful
the following selections as resources for educa- Inside EAP. Film or video, 18 minutes. Avail-
tioaal, decisionmaking. training, and operational able from Learning Systems. Inc., Princeton, NJ.
aspects of such programs. This sectionis not Presents the actual case of an employee and a
Intended as a comprehensive listing. It includes a spouse receiving help through an EAP.
few resources to help get a program started or
to refine a program: audiovisual and multimedia Substance Abuse: Managing Its Effects on Job
packages, periodicals. and organizations that can Performance. Videos, 62 minutes ("The Super-
be utilized for ongoing technical assistance visor's Role"); 38 minutes ('The Employee's
consultation. No endorsements are implied by Role"). Available from DuPont Training Services,
the inclusion of the resources. They are listed as Wilmington, DE. Two-videotape set with leader's
examples of materials available to assist those manual providing training in education, preven-
responsible for initiating or operating Employ- tion, and intervention for both employees and
meat Assistance Programs. supervisor.
Whose Problem Is It? Film. Available from
Audlovist al Coronet/MTL Chicago. Focuses on a worker with
a marijuana problem and how he ultimately en-
Cocaina Beyond the Looking Glass. Film or ters an assistance program. after a near-acci-
video. 28 minutes. Available from Hazelden. dent takes place. Denial and coworker coverup
Center City, MN. A short film about the physi- problems are also examined.
ology and psychology of cocaine addition and its
treatment. Yoram Move. FU=or video, 30 minutes. Avail-
able from Hazelden, Center City, MN. Case
Drug Mformarion Series. Three. 17-to 21- presentation of a supervisor confronting an em-
mimtte videos. Available from Southerby Pro- ployee with a performance problem and getting
ductfons. Long Beach. CA. Brief presentations on the employee to make contact with the EAP.
the signs and symptoms of drug abuse and boar
employers can confront workers they suspect of
abuse. Multimedia Packages
Drug Screening on the Job: Potent Weapon, Stop Drugs at Work: The Solurion/Prevention
Poteas Problems. Film. Available from Bureau of Program. Combines videotapes and various print
National Affairs, Washington, DC. An overview materials. Available from Random House Pro-
of drug testing. fessional Business Publications. New York, NY.
This_ package is designed to help companies de-
Employee Assistance Programs—Benefits to velop and implement drug policies and programs
Workers. Benefits to Business. Film. Available and is supplemented by a telephone hotline for
from Bureau of National Affairs, Washington, consultation purposes. Developers of the package
DC. Analysis of EAPs from both the employee. include Mark Gold. MD, and Peter Bensinger.
and employer viewpoints.
Workplace Substance Abuse-An Intervention
Everybody Wi1u. Film or video, 35 minutes. Model. Combines a video, training/program de-
Available from Hazelden. Center City. MN. .An velopment guide, and brochures for workers.
overview of the structure and operation of an Available from National American Wholesale
Employee Assistance Program. Grocers Association (NAWGA). Designed es-
pecially for labor-based worksites, this multi-
Everything Looks So Normal. Film. Available media package offers guidelines for combatting
from Coronet/MTI. Chicago. Overviews sub- substance abuse, including policy, legal issues,
stance abuse problems and possible solutions and EAP setup.
k
Employee Assistance Programs: Benefirs Prob- 21st Street. New York, NY ;0016. Professional {
lems and Prospects. Combines a 209-page re- society that certifies p ysicians for competence
port and resource guide with a 30—minute video in serving patients with c:.emical dependency
(also available separately). Issues of EAP in- problems.
volvement in drug testing are appraised. along
with an overview of the role of EAPs in the Association of Labor-,Management Adrninis-
workplace (the video includes two case studies, trators and Consultants on Alcoholism
one of an in-house and one of an external EAP). (ALAIACA). 1800 North Kent Street, Suite 907,
Available from the Bureau of National Affairs, Arlington, VA 22209. The largest professional/
Inc. (BNA). Rockville, MD. trade association for those involved in the EAP
field.
Periodicals Employee Assistance Society of North Amer-
ica (EASNA). 2145 Crooks Road, Suite 103, Troy,
Business and Health. A monthly journal ori- MI 48084. The second major aEsociation for those
ented to health and human resources issues in working in the EAP field.
the workplace; includes regular attention to al-
cohol and drug abuse. Contact: Washington National Health Information Clearinghouse
Business Group on Health. 2291 Pennsylvania (NEIC). P.O. Box 1133, Washington, DC
Avenue.S.E., Washington, DC 20003. 20013-1133. Published bibliographies and other
materials on health promotion topics, including
Corporate Commentary. A quarterly journal some related to alcohol and drug abuse in the
oriented to research on health and human re- workplace.
sources issues in the workplace; includes regular
attention to alcohol and drug abuse. Contact: National Institute on Drug Abuse(NIDA). 5600
Washington Business Group on Health. 229% Pushers Lane, Rockville, MD 20857. Maintains
Pennsylvania Avenue, S.E.. Washington. DC hotline and technical assistance service for em-
20003. ployers regarding drug abuse in the workplace,
and has marry publications that may be of value
Drug Abuse Update. A monthly newsletter to those developing workplace-based programs.
summarizing news stories and professional at- Hotline: 1/800-843-4971. Staffed by experts
titles on various aspects of drug abuse, including with drug abuse, employee assistance. and
a section for employers. Contact: Families in business backgrounds. This hotline is open from
Action. 3845 North Druid Hills Road, Decatur, 8 AM to 8 Plot weekdays and is designed to pro-
GA 30033. vide information to employers about drug abuse
treatment and prevention programs (including
Drugs.in the Workplace. A monthly newsletter Employee Assistance Programs), drug testing,
that provides a summary of newsworthy events available resources for consultation, and drug
of concern to employers, plus updates on pre- abuse policy.
vention, detection. treatment, and recent court
rulings. Contact: Business Research Publications, National Study on Workplace Drug Abuse Pro-
817 Broadway, New York, NY 10003. granm Human Interaction Research Institute,
1849 Sawtelle Boulevard. Suite 102, Los Angeles,
EAP Digest A bi-monthly professional journal CA 90025. Supported by a grant from the Na-
focusing on Employee Assistance Programs. tional Institute on Drug Abuse and other soyrces,
Contact: Performance Resource Press, 2145 the National Study is conducting the first major
Crooks Read, Suite 103, Troy, Na 48084. (313) national research study of drug treatment, pre-
643-95= vention. and education activities in EAPs. Other
components of the study include local area pro-
The U.S Journal of Drug and Alcohol Depend- files of EAPs, a computerized searchable in-
ence. A monthly newspaper with information formation resource on drugs in the workplace.
about treatment programs, EAPs and other ef- and publications targeted to. both employers and
forts within the workplace, research on sub- professionals.
stance abuse, and legislation or advocacy effort
in this area. Contact: 2119-A Hollywood Boule- Drugs in the Workplace(DAWP) Computer Bud-
vard. Hollywood, FL 33020. (305) 920-9433. lerin Boards a collaborative effort of the
National Study and the UCLA/ADP Drug Abuse
Information Management Program. funded by a
Organizations contract from the State of California. Acces-
sible by modem with an IBM/compatible micro-
American Medical Society on Alcoholism and computer, this Bulletin Board offers continu-
Other Drug Dependencies (AMSAODD). 12 W. ously updated information on literature, re-
{
search, and other activities regarding drugs in 20003. A membership organization of approxi-
the workplace. Access telephone number: (213) mately 200 of the Fortune 500 companies, de-
825-3736. voted exclusively to health and human resource
policy and cost management needs of .major
Washington Business Group on Health (WBGH). employers.
229% Pennsylvania Avenue, NF, Washington. DC
LIST OF NIDA-CERTIFIED LABS AT 44
The list of drug-testing laboratories certified by the federal government
continues to grow. The National Institute on Drug Abuse (NIDA) , the federal agency
'which conducts the certification program, has announced the updated list, which
includes seven new laboratories.
Before a lab can conduct employee drug testing for any federal agency or for any
company licensed by the federal Department of Transportation, it must be certified by
NIDA. Initial certification entails three rounds of "performance testing,* in which
the lab's work is checked by how well it performs .in analyzing blind samples, and by
an on-site inspection. To keep its NIDA certification, a lab must continue to
participate in the performance testing and be subject to on-site inspections.
following is the updated list, published in the January-5 To-be-P-a '4eeis o".
A -4-an 3350 Scott Boulevard, Bulldttrg 15, Santa
Clara, CA 95054; 408-727-5525.
Ane -+-an w•d+- *.a!]e-a -+••. 11091 Main Street, P.O. Box IBB, Fairfax, .VA
220JO, 703-691-9100.
Assee+arad Vecienal and ►tniv-e+-v parke ea+e s. 500 Chlpeea Way, Salt Lake
City, aT 84108. a01-581-2787.
Sie na;yttcal 2356 North Lincoln Avenue, Chicago, IL 60614;
312-880-6900.
cada— w••++ al n e-, Department of Pathology, 1400 Northwest 12th Avenue,
Miami, FL JJ1J6; 305-325-5810.
C-- • *e- _v; Tnx4•-n+oav, 417 Wakara Way, Room 290, University Research
Park, Salt Lake City, UT 84108; 801-581-5117.
Chi•--ar-+ ^�- -actin- 140 S. Ryan Road. Oak Creek, W1 53154, 800-365-3840.
ra!+. I1850 West 85th Street, Lanexa, KS 66214;
800-445-6917.
-+n '-•- *abe;3re-+mss. western Df vision, 600 West North Market Boulevard,
Sacramento, CA 95834; 916-923-0840.
Ccerouc", - 3308 Chapel X111INelson Highway, P.O. Box 12652,
Research rrian gle Park, NC 27709; 919-549-8263.
oacaCU-.1, 960 Wesc LeVoy Drive, Salt Lake City, UT 84123; 801-266-7700.
0oc,L-1 a^d 801 E. Dixie Avenue, Leesburg, FL 32748,
904-787-9006.
i
Substance mouse Report February 1, 1990 ,
B-�cs^a 1119 Mearns Road, P.O. Box 2969, Warminscer, PA 18974; 215-674-9320.
1215 1/2 Jackson Avenue, Oxford, MS 38655;. 601-136-2609.
rnv;- -at uaal- Research , r•.-+ne. 1075 $ouch 13th Street, 21=ingham,
AL 35205-9998; 205-934-0985.
rer.-ray y-a+,aj 'a►+e-a-o-fes. 36 South Brooks Street, Madison, WT 53725;-
608-267-6267
3725;-
608-267-6267
iia_--+5 v-dfcaI 'abor3-erv. 2401 Pennsylvania Avenue, P.O. Box 298I, Fort
Worth, TX 76104; 817-878-5600.
T.abC-arn-v -f' 2ar4eleav no Sear-le. 2229 Madison Street, Suite 500, Nordstrom
Medical Tower, Seattle, WA 98I04. 206-386-2672.
jbera-nry co 4a Lj= 113 Jarrell Drive, Belle Chasse, LA 70037;
504-392-7961.
t.aberarn-v Soecfalfsts (formerly Abused Drug Laboratories), P.O. Box 4350,
Woodland Hills, CA 91363; 800-332-8670.
W d"A-s *_fib. 5419 South Western, Oklahoma City, ON 73109; 800-251-0089,
Extension 433.
MedEx�-.tee/Na 4era1 1.21s -a ery n't-- 4022 Willow Lake Boulevard, Memphis,
TN 38175; 901-795-1515.
maWrex 'abe-are-4es. 402 West County Road D, St. Paul, MN 55212; 6I2-636-7466.
Mental u-a)-4 C-1-y T.abe aver+ s. 9455 Watertown Plank Road, Milwaukee, Wr
53226; 414-257-7439.
M t. ed 4 st Med n 1 cent r. 221 North East Glen Oak Avenue, Peoria, IL 61636;
• 309-672-1928.
Meroat%, 1355 Mittel Boulevard, Wood'Dale, TL 60191; 312-595-3888.
MerQatl-, One Malcolm Avenue, Teterboro, NJ 07608; 202-393-5000.
Rational Cen-e_ fn- 7n-- sf Selene* (a division of Maryland Medical
Laboratory), 190I Sulphur Spring Road, Baltimore, 10 21277; 301-247-9100.
gar+eral oqye►,nnharmaceleav t`ab. 9320 Park Wesc Boulevard, Knoxville, TN
37923; 615-690-8101.
g+eheIs Ins 4• v- Subitanee Abuse T•sfne. 8985 Balboa Avenue, San Diego, CA
$2123; 619-694-5050.
ger-hwest Toxfeelocv. 1141 East 3900 South, Salt Lake City, OT' 84124;
800-322-3361.
per- 100 Corporate Court, South Plainfield, NJ 07080; 202-769-8500.
PharmCh-m '.aberateries. 1305-A O'Brian Drive, Menlo Park, CA 94025;
415-328-6200.
D-j-:ah- 7272 Clairemont Mesa Road, San Diego, CA 92111; 619-279-2600.
$0eg aiom di al„7.abera eri •- 6370 Wilcox Road, Dublin, OR 43017,
614-889-1601.
Rnehe Atomedfeal L.aberaterfee. 1802 First Avenue South, Birmingham, AL 35233;
205-581-3537.
Reehe afemed+cal tabes--nrfet. 1447 York Court, Burlington, NC 27216;
919-584-5171.
Smithgf+ne afe-scfe"e- 'aberateries (formerly International Toxicology
Laboratories), 2201 W. Campbell Park Drive, Chicago, TL 60612; 312-885-2010.
Smit. Kt+�- afe-C i-n T.abe ate < s (formerly Tncernational Clinical
Laboratories), 8000 Sovereign Row, Dallas. TX 75247; 214-638-1301.
SmirhX"ne afeSc4-nee T.aberater4e.. 400 Egypt Road, Norristown, PA 19403;
800-523-5447.
Suri ugl 4ne 14n-qe4enee taborate 4 -s. 1777 Montreal Circle, Tucker, CA 30084;
404-934-9205.
Sn h a-nd M di a1 re+oda ion. 530 North Lafayette Boulevard, South Bend, ZN
46601; 219-234-4176.
eavrhea • M-d+ -al taha-aterv. 21200 Southgate Park Boulevard, Cleveland, OR
44137; 800-338-0166.
St _ Ant'-onv Rose+tal. 1000 North Lee Street, P.O. Box 205, Oklahoma City, OK
73102, 405-272-7052.
For further information, write to the Drug Testing Section, Division of Applied
Research (formerly the office of workplace Initiatives), National Institute on Drug
Abuse, Room 9-A-53, 5600 Fishers Lane, Rockville MD 20857.
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