In order to assure the safety of students and staff, and to maintain a workplace free of drugs and alcohol, it is the policy of the Broadalbin-Perth School District that no person who has engaged in conduct involving the use of controlled substances or the misuse of alcohol as prohibited by the Omnibus Transportation Employees Testing Act (Act) and in regulations promulgated thereunder by the Federal Highway Administration shall perform safety sensitive transportation functions as defined by the regulations.
II. APPLICABILITY
This policy applies to all District employees who are required to maintain Commercial Drivers Licenses (CDL) to perform the duties for which they are employed.
III. DEFINITIONS
Alcohol
Alcohol is the intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols including methyl and isopropyl alcohol.
Alcohol Use
Alcohol use is the consumption of any beverage, mixture, or preparation, including medication containing alcohol.
Breath Alcohol Technician (BAT)
A breath alcohol technician is an individual who instructs and assists individuals in the testing process and operates an evidential breath testing device.
BAC
Breath alcohol concentration level.
Commercial Motor Vehicle
A motor vehicle or a combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
1. 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; or
2. has a gross vehicle weight rating of 26,001 or more pounds, or
3. is designed to transport 16 or more passengers, including the
driver; or
4. is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Material Regulations.
Confirmation Test
For alcohol testing – – confirmation test means a second test, following a screening test with a result of .02 or greater, that provides quantitative data of alcohol concentration.
For controlled substances – – confirmation test means a second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the screening test and which uses a different technique and chemical principle from that of the screen test in order to ensure reliability and accuracy. (Gas Chromatography/Mass Spectrometry is the only federally authorized confirmation for cocaine, marijuana, opiates, amphetamines and phencyclidine).
Controlled Substance
Controlled substance means the NIDA “Five” panel of drugs which includes opiates, marijuana, cocaine, amphetamines and Phenylcyclidine. Therapeutic drug use shall mean the use of a therapeutic substance that may adversely affect the driver’s ability to operate a district vehicle or perform other safety sensitive functions.
Covered Driver
District employees who operate commercial motor vehicles and applicants for employment with the District who are applying for positions as drivers of commercial motor vehicles (for the purposes of pre-duty testing only).
Evidential Breath-Testing Device (EBT)
An EBT is a device approved by the National Highway Traffic Safety Administration for the evidential testing of breath and placed on NHTSA’s conforming products list of Evidential Breath
Measurement Devices.
Follow-up Testing
Follow-up tests are those tests administered following a determination by a Substance Abuse Professional that a driver is in need of assistance in resolving problems associated with the misuse of alcohol or the use of controlled substances. This unannounced test, given at least 6 times with 12 months following the employee’s return to duty with the actual frequency and number of tests determined by the Substance Abuse Professional.
Medical Review Officer
A licensed physician responsible for receiving laboratory results generated by the District’s drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his or her medical history and any other relevant biomedical information.
Refusal to Submit
A driver who (1) fails to provide adequate breath for testing, as required by 49 CFR part 40, without a valid medical explanation after he or she has received a notice of the requirement for the breath testing; (2) fails to provide adequate urine for controlled substances testing, as required by 49 CFR part 40, without a valid medical explanation after (s)he has received notice of the requirement for urine testing; (3) engages in conduct that clearly obstructs the testing process, or (4) refuses to submit, will be classified as a refusal to submit to an alcohol or controlled substances test. A refusal to submit to either an alcohol or drug test will carry the same penalties as failing a required test.
Screening Test
In alcohol testing, screening test means an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his/her system. In controlled substances testing it means an immunoassay screen to eliminate “negative” urine specimens from further consideration.
Safety Sensitive Functions
Any of the on-duty functions, as specified by federal regulation, listed below:
1. all time at a District facility, or other property, waiting to be dispatched, unless the driver has been relieved of duty by the District.
2. all times inspecting equipment as required by the Federal Motor Carrier Safety Regulations or otherwise inspecting, servicing, or conditioning any District vehicle at any time.
3. all time spent at the driving controls of a commercial motor vehicle in operation.
4. all time, other than driving time, spent on or in a commercial motor vehicle.
5. all time spent loading or unloading a commercial motor vehicle, supervising or assisting in the loading or unloading, attending a CMV being loaded or unloaded, remaining in readiness to operate the CMV, or in giving receipts for shipments loaded or unloaded.
6. all time spent performing the driver requirements associated with an accident.
7. all time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
Substance Abuse Professional
A substance abuse professional means 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 – – NAADAC) with knowledge and or clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.
IV. TESTING
There are several instances when an individual will be subject to drug and/or alcohol tests pursuant to this policy and federal regulations. Prior to the administration of such tests, the District will notify the covered individual that such tests are required by federal regulations. The tests which the District shall have administered include:
A. Pre-duty Testing
Pre-duty is testing for drugs and alcohol that the District will administer after a conditional offer of employment has been extended and/or prior to any covered driver’s performance of a safety sensitive function. The District will not allow any covered driver to commence the performance of any safety sensitive function unless the alcohol testing reveals an alcohol concentration of less than .04 and the drug testing reveals a verified negative test result. If the pre-duty alcohol test reveals an alcohol concentration of .02 or greater, but less than .04, the covered driver will not be allowed to perform safety sensitive functions for 24 hours following the administration of the test. In addition, independent of the requirements of the Act and the regulations promulgated thereunder, if the pre-duty alcohol test reveals an alcohol concentration of .02 or greater, it will result in a revocation of the conditional offer of employment. Also, independent of the Act and the regulations thereunder, if the pre-duty drug test reveals a presence of drugs, it will result in the revocation of the conditional offer of employment. The District may, in its sole discretion, forego pre-duty testing in instances permitted by federal regulations where drug and alcohol testing of covered drivers were performed by their previous employers.
B. Reasonable Suspicion Testing
Reasonable suspicion testing is alcohol and/or drug testing that the District will conduct when it has reasonable suspicion to believe that a covered driver has engaged in conduct prohibited by this policy. Reasonable suspicion must be based upon specific, contemporaneous, and articulable observations concerning the appearance, behavior, speech or body odors of a covered driver by a District supervisor who is specially trained to recognize alcohol misuse or drug use.
The District shall not administer a reasonable suspicion alcohol test more than eight (8) hours following a determination that reasonable suspicion exists to believe that the alcohol prohibitions of this policy have been violated. Notwithstanding the absence of a reasonable suspicion alcohol test, the District will not permit any covered driver to report for duty or remain on duty requiring the performance of a safety sensitive function while the driver is under the influence of, or impaired by, alcohol as shown by the behavioral, speech, and performance indicators of alcohol misuse, until an alcohol test is administered and the driver’s alcohol concentration measures less than .02 or 24 hours have elapsed following a determination that reasonable suspicion exists to believe that the alcohol prohibitions of this policy have been violated.
A written record shall be made of observations leading to reasonable suspicion, signed by the supervisor or person who made the observations, within 24 hours of the observed behavior or before the results of drug tests are received by the District, whichever is earlier.
Covered drivers are subject to reasonable suspicion alcohol testing as follows: Immediately prior to performing safety sensitive functions, while performing safety sensitive functions, while performing safety sensitive functions, or immediately following the performance of safety sensitive functions. Reasonable suspicion drug testing may be conducted at any time the covered driver is on duty for the District.
C. Random Testing
Random testing is unannounced testing for alcohol and drugs administered in a statistically random manner throughout the year to covered drivers employed by the District as required by federal regulation.
Covered drivers are subject to random alcohol testing as follows: Immediately prior to performing safety sensitive functions, while performing safety sensitive functions, or immediately following the performance of safety sensitive functions. Random drug testing may be conducted at any time the covered driver is on duty for the District.
D. Post Accident Testing
A post accident test is a test for alcohol and drugs administered following an accident involving a CMV to a surviving covered driver:
1. who was performing safety sensitive functions with respect to the vehicle, if the accident involved the loss of human life;
2. who receives a citation under state or local law for a moving violation arising from the accident;
3. if the accident resulted in one or more vehicle incurring disabling damages as a result of the accident requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle;
4. if the accident resulted in bodily injury to a person who as a result of the injury immediately receives medical treatment away from the scene of the accident.
The District will not administer a post accident alcohol test more than eight (8) hours following the accident and will not administer a post accident drug test more than thirty-two (32) hours following the accident. A covered driver subject to post accident testing must remain readily available for such testing or may be deemed by the District to have refused to submit to such tests. This provision shall not be construed to require the delay of necessary medical attention for injured individuals following an accident or to prohibit a covered driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.
The results of a breath or blood test for the use of alcohol or a urine test for the use of drugs, conducted by federal, state or local officials having independent authority to authorize the test, shall be accepted as meeting the requirements of the policy concerning post accident testing, provided such tests conform to applicable federal, state or local requirements and that the results of the test are obtained by the District.
E. Return to Duty Testing
Return to duty testing is alcohol and drug testing conducted after a covered driver has engaged in prohibited conduct under this policy, completed counseling prescribed by a substance abuse professional, if any, and prior to his return to the performance of a safety sensitive function. Before a covered driver may return to the performance of a safety sensitive function, (s)he must undergo return to duty testing with an alcohol test result of less than .02 and/or a drug test indicating a verified negative result for illegal drugs.
F. Follow-up Testing
Follow-up tests are given following the determination by a substance abuse professional that a driver is in need of assistance in resolving problems associated with the misuse of alcohol and/or drugs. Follow-up tests are unannounced, given at least six times within twelve months with the actual frequency and number of tests determined by the substance abuse professional, but in no event may the follow-up testing continue for a period of more than 60 months from the covered driver’s return to duty. The substance abuse professional may terminate the requirement for follow-up testing at any time after the first six tests have been administered if (s)he determines that follow-up tests are no longer necessary.
Covered drivers are subject to follow-up alcohol testing as follows: Immediately prior to performing safety sensitive functions, while performing safety sensitive functions, or immediately following the performance of safety sensitive functions. Follow-up drug testing may be conducted at any time the covered driver is on duty for the District.
V. Drug and Alcohol Testing Procedures
A. Alcohol
Alcohol testing will be administered by a Breath Alcohol Technician (BAT) who has completed the equivalent of the Department of Transportation’s (DOT) model course and who is trained in utilizing an evidential breath testing (EBT) device that conforms to the DOT requirements. The EBT used for testing shall meet the standards promulgated by the DOT and have a quality assurance plan (QAP) developed by the manufacturer to insure proper calibration. Testing will be conducted in a location that affords visual and aural privacy to individuals being tested. All alcohol testing methods will conform to and be conducted pursuant to the requirements of federal regulation.
If the initial test reveals an alcohol concentration of .02 or greater, a confirmatory test must be performed as soon as possible. The confirmatory test result is the final test result for the purposes of this policy. If the final test result reveals an alcohol concentration greater than .02 but less than .04, the covered driver will be suspended from performing safety sensitive functions for a minimum of 24 hours. If the alcohol concentration is .04 or greater, the covered driver will be suspended from the performance of safety sensitive functions during the evaluation by the substance abuse professional and/or pending disciplinary procedures, if any.
If a screening or confirmation test cannot be completed, or if an event occurs that would invalidate a test, the BAT, shall, if practicable begin a new screening or confirmation test, as applicable.
B. Drugs
A Department of Health and Human Services certified laboratory will perform drug testing on urine samples provided by covered drivers. The drugs for which tests will be conducted are:
1. Marijuana (THC)
2. Cocaine
3. Phencyclidine (PCP)
4. Opiates
5. Amphetamines
The testing levels and methods utilized will conform to and be conducted pursuant to the requirements of federal regulations.
The District will contract with a certified laboratory or testing agent to insure that the collection, shipment, testing and chain of custody procedures preserve the integrity of the testing process in accordance with federal regulations.
Split sample urine testing will be utilized. This method requires that the urine specimen be divided into two samples providing one sample for preliminary screening and initial confirmation, and a second sample for a second test if needed at a later date.
The District’s Medical Review Officer (MRO) will conduct a final review of all positive test results to assess possible alternative medical explanations for the positive test results.
C. Other Procedures
1. The District will ensure that all alcohol and drug testing information is kept confidential pursuant to applicable state law and federal regulations.
2. The District will ensure that all contracts between the District and any other entity involved in the alcohol and drug testing program will comply with federal regulations.
VI. Refusal to Submit to Testing
A covered driver shall not refuse to submit to any drug or alcohol test required under this policy. A refusal to submit to any required test is the equivalent of an alcohol test with a result of .04 or greater or a drug test with a positive result. The District shall not permit any covered driver to perform safety sensitive functions subsequent to a refusal to submit to a required test until the individual is evaluated by a substance abuse professional and completes a substance abuse program designed by the substance abuse professional, if any, and undergoes a return to duty alcohol test revealing an alcohol concentration of less than .02 and a drug test with a verified negative result. A refusal to submit to testing shall also include: A refusal to complete and sign the breath alcohol testing form, to complete the drug screening chain of custody form, to provide breath, to provide an adequate amount of breath, to provide urine, to provide an adequate amount of urine or otherwise cooperate with the testing process in a way that prevents the completion of the test. The BAT or specimen collector shall record such refusal in the remarks section of the form. The testing process shall then be terminated and the BAT or specimen collector shall immediately notify the District.
VII. Prohibited Conduct
A. Alcohol
1. No covered driver shall report to duty or remain on duty requiring the performance of safety sensitive functions while having an alcohol concentration of .04 or greater. The District shall not permit a covered driver to perform or continue to perform safety sensitive functions if it has actual knowledge that a driver has an alcohol concentration of .04 or greater.
2. A covered driver shall not be on duty or operate a CMV while the covered driver possesses alcohol, unless the alcohol is manifested and transported as a part of a shipment or delivery. The District shall not permit a covered driver to drive or continue to drive a CMV if it has actual knowledge that a driver possesses unmanifested alcohol.
3. A covered driver shall not use alcohol while performing safety sensitive functions. The District shall not permit a driver to perform or continue to perform safety sensitive functions if it has actual knowledge that a covered driver is using alcohol while performing safety sensitive functions.
4. No covered driver shall perform safety sensitive functions within four hours after using alcohol. The district shall not permit a covered driver to perform or continue to perform safety sensitive functions if it has actual knowledge that a covered driver has used alcohol within four hours. This policy does not allow covered drivers to act in violation of New York Vehicle and Traffic Law 509-1 (1) (a), barring the consumption of drugs, controlled substances or alcohol within six hours before going on duty, operating or having physical control of a bus.
5. A covered driver required to take a post accident alcohol test shall not use alcohol for eight (8) hours following the accident, or until after (s)he undergoes a post accident alcohol test, whichever is first.
B. Drugs
1. A covered driver shall not report for duty or remain on duty requiring the performance of safety sensitive functions when the driver is using drugs, except when the use is pursuant to the instructions of a physician who has advised the driver that the drug does not affect the driver’s ability to safely operate a CMV. The District shall not permit a covered driver to report for duty or remain on duty requiring the performance of safety sensitive functions if the District has actual knowledge that the driver is using drugs, except when the use is pursuant to the instructions of a physician who has advised the driver that the drug does not affect the driver’s ability to safely operate a CMV.
2. This policy does not allow covered drivers to act in violation of New York Vehicle and Traffic Law 509-1 (1) (a), barring the consumption of drugs, controlled substances or alcohol within six (6) hours before going on duty, operating or having physical control of a bus.
VIII. Referral, Evaluation and Treatment
A. The District shall make available, to each covered driver, information regarding the resources available for evaluating and resolving problems associated with the misuse of alcohol and use of drugs, including the names, addresses, and telephone numbers of substance abuse professionals and counseling and treatment programs. Provision of this information does not bind the District to provide reimbursement or cover the cost of such programs unless otherwise required by separate agreement or provided through health insurance coverage.
B. The District requires that each covered driver who engages in conduct prohibited by this policy shall be evaluated by a substance abuse professional who shall determine what assistance, if any, the employee needs in resolving problems with the misuse of drugs and alcohol.
C. Before a covered driver returns to duty requiring the performance of a safety sensitive function after engaging in conduct prohibited by this policy, the covered driver shall undergo a return to duty alcohol test with a result indicating an alcohol concentration of less than .02 if the conduct involved alcohol, or a drug test with a verified negative result if the conduct involved drugs.
D. Each covered driver identified as needing assistance in resolving problems with alcohol misuse or drug use shall:
1. Be evaluated by a substance abuse professional to determine if the covered driver has properly followed any rehabilitation program prescribed under paragraph B of this section;
2. Be subjected to unannounced follow-up alcohol and drug tests administered by the District following the covered driver’s return to duty. The number and frequency of the follow-up tests shall be as directed by the substance abuse professional, and consist of at least six (6) tests in the first twelve months following the covered driver’s return to duty. The District may direct the covered driver to undergo return to duty and follow-up testing for both drugs and alcohol, if the substance abuse professional determines the return to duty and follow-up testing for both alcohol and drugs is necessary for that particular covered driver. Such testing shall be in conformance with this policy and federal regulations. Follow-up testing shall not continue more than 60 months from the date of the covered driver’s return to duty. The substance abuse professional may terminate the requirement at any time after the first six tests have been administered, if the substance abuse professional determines that such testing is no longer necessary.
3. The evaluation and rehabilitation may be provided by the District, by a substance abuse professional under contract with the District, or by a substance abuse professional not affiliated with the District.
4. The District requires that a substance abuse professional who determines that a covered driver requires assistance in resolving problems with alcohol misuse or drug use does not refer the covered driver to the substance abuse professional’s private practice, or to a person or organization from which the substance abuse professional receives remuneration, or in which the substance abuse professional has financial interest.
5. This policy’s requirements regarding referral, evaluation and treatment do not apply to applicants who refuse to submit to a pre-duty alcohol or drug test or who have a pre-duty alcohol test with a result indicating an alcohol concentration of .04 or greater or a drug test with a verified positive result.
IX. Discipline of Covered Drivers
A covered driver shall not perform safety sensitive functions, including driving a CMV, if the covered driver has engaged in conduct prohibited by this policy or an alcohol or drug rule of any DOT agency.
The District will not permit any driver to perform safety sensitive functions, including driving a CMV, if the driver has tested positive for drugs and/or alcohol. The District will not permit any covered driver found to have an alcohol concentration of at least .02 and less than .04 to perform safety sensitive functions for a minimum of 24 hours following the administration of the test.
Covered drivers who violate this policy, with either an alcohol concentration of .04 or a positive drug test result, will be suspended from the performance of safety sensitive functions, and referred to a substance abuse professional. Before a covered driver may resume the performance of safety sensitive functions for the District, a substance abuse professional must certify that the covered driver has been evaluated and completed any substance abuse program prescribed. In addition, the covered driver must pass an alcohol test with an alcohol concentration of less than .02 and/or a drug test prior to the return to the performance of safety sensitive functions.
Notwithstanding the provisions of this policy requiring testing and evaluation of employees, any employee who violates this policy may be subject to disciplinary charges, seeking penalties which may include termination of employment.
X. Employee Notification
The District shall provide a copy of this policy to each covered driver and to the President of each collective bargaining unit. Each covered driver is required to sign a statement certifying that (s)he has received this policy. The District shall maintain the original signed certification for a minimum of two years. The District will provide a copy of the certification to the covered driver upon request.
XI. Savings Clause
If any provision of this policy is determined by an arbitrator or court of competent jurisdiction to be inconsistent with any superseding legal requirements, that provision shall be considered modified or deleted so as to comply with the superseding legal requirements, without any effect on the remaining provisions.
References
Hazardous Material Regulations 49 CFR 172 subpart F. Federal Regulations 49 CFR 382.301 (b) or (c).
