§ 2-766. Drug-free workplace policy.

(a)

Purpose.

(1)

The county government is committed to a safe working environment and to making adequate provisions for the safety and health of its employees at their place of employment. The county government regards its personnel as individuals as well as employees. Therefore, the county government believes that alcoholism and drug addiction are illnesses and should be treated as such. The county government further believes that employees who develop alcoholism or other drug addictions can be helped to recover and should be offered appropriate assistance. It is in the best interest of the employee and the county government that when alcoholism or drug addiction is present, it should be diagnosed and treated at the earliest possible date. Confidential treatment of the diagnosis and recovery process for alcoholism or drug addiction is essential.

(2)

The county government recognizes that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. The county government and its employees share a commitment to create and maintain a drug-free workplace.

(3)

The county government declares that the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs are unacceptable.

(4)

Provisions of the Federal Anti-Drug Act, 41 U.S.C.A. § 702, require federal grant recipients to establish a drug-free workplace. Employees must be provided with a statement notifying them of the prohibitions pertaining to controlled substances, consequences of violations, and compliance with the drug-free policy as a condition of employment. Employers must inform employees of drug-free requirements through an awareness program.

(b)

Policy goals and objectives.

(1)

To establish, promote, and maintain a safe, healthy working environment for employees.

(2)

To aid the affected employee in locating a rehabilitation program for employees with a self-admitted or detected substance abuse problem.

(3)

To promote the reputation of the county government and its employees as responsible citizens of public trust and employment.

(4)

To eliminate substance abuse problems in the workplace.

(5)

To aid in the reduction of absenteeism, tardiness, and apathetic job performance.

(6)

To provide a clear standard of job performance for the county government employees.

(7)

To provide a consistent model of substance-free behavior for employees.

(c)

Pre-employment testing. In the furtherance of achieving the county government's goals and objectives as enumerated above, all applicants being considered for employment positions identified by the county government as being safety-sensitive shall be required to submit to a urinalysis test for the detection of the illegal use of drugs, as part of the currently required post-offer, pre-employment physical. Applicants for positions which require testing shall be given a copy of this policy in advance of the post-offer, pre-employment physical.

Applicants must acknowledge having read or had this policy explained to them and should understand that as a condition of employment they are subject to its contents. Applicants shall sign an acknowledgment prior to substance screening, permitting the summary result to be transmitted to the medical review officer (MRO), the human resources director, and the department director. An applicant refusing to complete any part of the drug testing procedure shall not be considered a valid candidate for employment with the county government, and such will be considered as a withdrawal of the individual's application for employment. The applicant shall not be permitted to reapply for employment with the county government for at least 12 months and not until the applicant shows proof of successful completion of a drug rehabilitation program or proof that the applicant has otherwise rehabilitated successfully and is no longer engaging in illegal drug use.

If substance screening shows a confirmed positive result for which there is no current physician's prescription, a second confirming test may be requested by the MRO. If the first or any requested second confirming test is positive, any job offer shall be revoked.

The county government has several positions which are considered safety sensitive. In general, these are positions where a single mistake by an employee can create an immediate threat of serious harm to the public and/or fellow employees.

Safety-sensitive positions requiring post-offer, pre-employment drug testing are: lifeguard, laborer, light-equipment operator, heavy-equipment operator, equipment operator, mechanic, medical examiner, medical legal death investigator, autopsy technician, and all positions requiring a commercial driver's license (CDL). Individuals applying for other positions shall not be required to submit to a post-offer, pre-employment substance screen.

(d)

Employee conduct. Substance abuse is the misuse or illicit use of alcohol, drugs, or controlled substances, including but not limited to marijuana, heroin, or cocaine.

(1)

Illegal drugs.

a.

Employees shall not engage in the illegal use of drugs at any time, and such use will not be tolerated. Further, employees on duty, or on the county government property, or in attendance at county-approved functions will not manufacture, distribute, dispense, possess, or use illegal drugs or drug paraphernalia, nor will they be under the influence of such drugs.

b.

An employee convicted of any criminal drug law shall notify the hiring authority no later than five days after such conviction. Within 30 days after receiving notice of a conviction, the county government will take appropriate disciplinary action and/or refer the employee to an appropriate substance abuse rehabilitation program.

c.

Failure of the employee to report the conviction within the time prescribed will lead to disciplinary action up to and including discharge. Convictions of a criminal drug law can result in disciplinary action up to and including discharge. In determining whether and to what extent an employee will be disciplined or discharged for the conviction of a criminal drug law, the county government will consider the following factors: the degree to which the nature of the criminal offense reduces the county government's ability to maintain a safe working environment; the degree to which the nature of the criminal offense unreasonably endangers the safety of other employees and/or the public; the degree to which the conviction unreasonably undermines the public confidence in the county government's operations; the nature of the criminal offense; the nature of the employee's job with the county government; the existence of any explanatory or mitigating facts or circumstances; whether the employee promptly reports the conviction; and any other facts relevant to the employee, including but not limited to years of service and record of performance with the county government.

(2)

Alcohol and drugs. Alcohol, prescription drugs, and over-the-counter drugs are legal and readily available. These drugs, when abused over time or used in combination with one another, can result in chemical dependency or poly-drug addiction. Employees shall conduct themselves in a manner consistent with the following provisions:

a.

Employees on duty, or on the county government property, or in attendance at county-approved functions must not be under any degree of intoxication or odor from alcohol. Employees shall not manufacture, sell, or use alcoholic beverages or possess open alcoholic beverage containers while on duty, or on the county government property, or in attendance at county-approved functions.

b.

Employees on duty shall not use or take prescription drugs above the level recommended by the prescribing physician and shall not use prescribed drugs for purposes other than those for which they are intended.

c.

An employee convicted of any criminal drug law involving the use of alcohol, prescription drugs, or over-the-counter drugs shall notify the hiring authority no later than five days after such conviction. Within 30 days after receiving notice of a conviction, the county government will take appropriate disciplinary action and/or refer the employee to an appropriate substance abuse rehabilitation program.

d.

Failure of the employee to report the conviction within the time prescribed will lead to disciplinary action up to and including discharge. Convictions of a criminal drug law involving the use of alcohol, prescription drugs, or over-the-counter drugs can result in disciplinary action up to and including discharge. In determining whether and to what extent an employee will be disciplined or discharged for the conviction of a criminal drug law involving the use of alcohol, prescription drugs, or over-the-counter drugs, the county government will consider the following factors: the degree to which the nature of the criminal offense reduces the county government's ability to maintain a safe working environment; the degree to which the nature of the criminal offense unreasonably endangers the safety of other employees and/or the public; the degree to which the conviction unreasonably undermines the public confidence in the county government's operations; the nature of the criminal offense; the nature of the employee's job with the county government; the existence of any explanatory or mitigating facts or circumstances; whether the employee promptly reports the conviction; and any other facts relevant to the employee, including but not limited to years of service and record of performance with the county government.

e.

Employees who are authorized to drive county vehicles must notify their supervisor or director if they are taking any medication that may impair or affect their ability to safely drive a vehicle. Failure of the employee to notify their supervisor or director may lead to disciplinary action up to and including discharge. (See Knox County Fleet Safety Program § 10, 2016).

(e)

Physical examination/screening based upon reasonable suspicion. Whenever the county government, through its hiring authority or his/her authorized designee, and/or the human resources director, reasonably suspects that an employee's work performance or on-the-job behavior may have been affected in any way by illegal drugs or alcohol or that an employee has otherwise violated the county government drug-free workplace substance abuse policy, the employee may be required to submit a breath and/or urine sample for drug and alcohol testing. When a supervisor observes or is notified of behaviors or events that lead the supervisor to believe that the employee is in violation of the drug-free workplace substance abuse policy, the supervisor shall notify the hiring authority.

An employee who is required to submit to drug/alcohol testing based upon reasonable suspicion and refuses shall be charged with insubordination, and necessary procedures will be taken to terminate the employee in accordance with this Code.

An employee who tests positive on a reasonable suspicion test will be in violation of this policy. Violation of this policy shall constitute grounds for termination in accordance with this Code.

The department's hiring authority or his/her authorized designee or the human resources director are the only individuals in the county government authorized to make the determination that reasonable suspicion or cause exists to order a drug screen and are the only individuals who may order an employee to submit to a drug screen. The human resources director or his/her authorized designee must be notified before an employee is tested. Two types of cases for which reasonable suspicion procedures may be invoked are:

(1)

Chronic case. Deteriorating job performance or changes in personal traits or characteristics where the use of alcohol or drugs may be reasonably suspected as the cause.

(2)

Acute case. Appearing in a specific incident or observation to then be under the present influence of alcohol and/or drugs or investigation of an accident where the use of alcohol or drugs is reasonably suspected to be a contributing cause.

Circumstances under which substance screening may be considered, in either the chronic or acute cases, include but are not limited to the following:

a.

Observed use, possession, or sale of illegal drugs and/or use, possession, sale, or abuse of alcohol and/or the illegal use or sale of prescription drugs.

b.

Apparent physical state of impairment of motor functions.

c.

Marked changes in personal behavior not attributable to other factors.

d.

Employee involvement in or contribution to an accident where the use of alcohol or drugs is reasonably suspected or employee involvement in a pattern of repetitive accidents, whether or not they involve actual or potential injury.

e.

Violations of criminal drug law statutes involving the use of illegal drugs, alcohol, or prescription drugs and/or violations of drug statutes.

The circumstances under which substance screening may be considered, as outlined above, are strictly limited in time and place to employee conduct on duty or during work hours, or on the county government property.

Prior to substance screening, employees must sign an acknowledgment that the summary result will be transmitted to the MRO, the department director, and the county government human resources director.

Drug and/or alcohol screening shall be conducted by county government approved, independent, certified laboratories utilizing recognized techniques and procedures, more specifically described in the drug and alcohol abuse testing procedures contained in this policy at subsection (k) of this section.

(f)

Promotion and transfer testing. When an employee applies for a position through the county government's selection process for a job that has been identified by the county government as being a safety-sensitive position, the employee shall be subject to drug testing in accordance with the procedures contained in this policy before the employee will be considered a valid candidate for that job opening. An employee who tests positive for illegal drugs on a promotion/transfer test will no longer be considered an applicant for that position. Such employee will also be in violation of this policy. Violation of this policy will constitute grounds for immediate termination in accordance with this Code.

An employee may withdraw the application for the position at any time up until the employee is scheduled for promotion/transfer testing. Once an employee is scheduled for promotion/transfer testing, if that employee refuses to submit to the test, he/she will be disqualified for consideration for the position and will be considered as being insubordinate and subject to discipline. Under no circumstances shall this employee be considered as a viable candidate for any future openings in this classification until the employee has signed a release for drug testing.

(g)

Return to duty testing. An employee who has been given the opportunity to undergo rehabilitation for drugs will, as a condition of returning to duty, be required to agree to a reasonable follow-up testing established by the human resources director. The extent and duration of the follow-up testing will depend upon the safety or security nature of the employee's position and the nature and extent of the employee's substance abuse problem. The human resources director is to review the conditions of continued employment with the employee prior to the employee's returning to work. Any such condition for continued employment shall be given to the employee in writing. The human resources director may consult with the employee's rehabilitation program in determining an appropriate follow-up testing program, including the frequency of any substance screening contained in a follow-up testing program. In no instance shall such screening be ordered by the human resources director more than one time within a 72-hour period.

Any employee subject to return to duty testing that has a confirmed positive drug test shall be in violation of this policy. Violation of this policy shall constitute grounds for immediate termination in accordance with this Code.

(h)

Rehabilitation. The county government recognizes that chemical dependency is an illness that may be successfully treated.

(1)

It is the policy of the county government, where possible, to refer for rehabilitation an employee with a self-admitted or detected drug or alcohol problem.

(2)

Employees seeking medical attention for chemical dependency shall be entitled to benefits to the extent covered under the county government group medical insurance plans, if they have chosen to be covered by said plans.

(3)

For employees enrolled in a formal treatment/rehabilitation program, the county government may grant sick leave and then annual leave until the same are exhausted and then may grant leave without pay not to exceed one year.

(4)

The cost of the drug rehabilitation or treatment provider shall be borne by the employee and/or the employee's insurance provider.

The county government strongly encourages employees using illegal drugs or alcohol to voluntarily refer themselves to a treatment program. A voluntary referral is defined as one that occurs prior to any positive test for illegal drugs under this policy or prior to any other violation of this policy, including a criminal conviction of that individual on a drug related offense. Employees are not subject to disciplinary action for voluntary referral to rehabilitation, even where rehabilitation is for the use of illegal drugs or alcohol.

(i)

Disciplinary action.

(1)

Employees in violation of the provisions of this policy shall be subject to disciplinary action up to and including termination.

(2)

The fact that an employee has been referred for assistance and his/her willingness or ability to rehabilitate are appropriate considerations as to what, if any, disciplinary action may be taken.

(j)

Confidentiality. Records that pertain to a county government employee's required substance screens are recognized to be private and sensitive records. They shall be maintained by the MRO in a secure fashion to insure confidentiality and privacy and be disclosed to the human resources director only to the extent necessary to address any work-related safety risks occasioned by either the drug or alcohol use. The human resources director shall maintain any such records in a secure fashion to insure confidentiality and privacy. Medical records, and information relating directly thereto, shall be maintained in accordance with provisions of state law and used with the highest regard for employee privacy consistent with law and the purpose of achieving and maintaining a drug-free workplace. All personnel records and information regarding referral, evaluation, substance screen results, and treatment shall be maintained in a confidential manner and no entries concerning such shall be placed in an employee's personnel file.

(k)

Drug and alcohol abuse testing procedures.

(1)

The county will contract with a drug and alcohol testing vendor for pre-employment, post-accident, reasonable suspicion, and random drug and alcohol testing as required.

To ensure the highest quality of services, the contractor's employees performing urine specimen collections must be trained and certified as Certified Professional Collector (CPC). The contractor must follow the standards set forth by the Drug and Alcohol Testing Industry Association (DATIA) which are based on DOT regulations, Department of Health and Human Services/Substance Abuse and Mental Health Services Associations (DHHS/SAMHSA Mandatory Guidelines, and industry best practices. DATIA standards require that all CPCs be recertified annually.

The contractor's laboratory must be DHHS/SAMHSA certified. The testing methodology will include initial Enzyme Multiplied Immunoassay Technique (EMIT) screening testing and Gas chromatography-mass spectrometry (GC/MS) confirmation. If the laboratory utilizes a split specimen collection process it must meet DOT and DHHS requirements. In addition, each specimen collected must be checked for validity to rule out possible adulterants and bogus or diluted samples. Strict adherence to chain of custody requirements must be maintained at all times. Chain of custody forms are to be preprinted with a unique accession number. The accession number is used for verification and tracking of the specimen throughout the testing process.

Additionally, each test result must be reviewed by the contractor's Medical Review Officer (MRO). The MRO must be a Tennessee licensed physician and be certified by either the Medical Review Officer Certification Commission (MROCC) or the American Association of Medical Review Officers (AAMRO). As a condition of their MRO certification, the MRO must possess the appropriate training in the review of medical history and biomedical information and experienced in consulting with donors. The MRO is to review, interpret, and will make the final determination on the result of each drug test.

When randomized drug testing is required to comply with DOT guidelines, the contractor will manage the randomization and pull the random testing pools for the county in accordance with DOT requirements. The contractor must have a documented protocol in place regarding specimen temperature, diluted specimens, and contaminated specimens that ensure DOT compliance.

The contractor when performing breath alcohol testing must use a method approved by the National Highway Traffic Safety Administration (NHTSA). The Contractors Breath Alcohol Technicians (BAT) must be DOT certified to operate alcohol testing equipment.

(2)

Specific testing procedures.

a.

Pre-employment/post job offer. Interested individuals are made aware of the requirements of drug testing for a specific position prior to submitting an application for the position. Pre-employment drug and alcohol testing will be required for the designated safety-sensitive positions. Applicants will be given an offer of employment prior to the test. Employment is contingent upon passing the test.

Applicants for positions which require drug and alcohol testing shall report to the designated collection site within 48 hours after receiving written notification by the human resources authorized designee of the time and date to report.

The contractor is responsible for gathering the medical history of the applicant and will take the urine sample(s).

The designated safety-sensitive positions subject to testing are: lifeguard, laborer, light-equipment operator, heavy-equipment operator, equipment operator, mechanic, medical examiner, medical legal death investigator, autopsy technician, and all positions requiring a commercial driver's license.

b.

Reasonable suspicion testing. This testing will be conducted for any employee whenever the county government, through the department director, or someone authorized in his/her absence, and/or the human resources director suspects that there is a violation of the county government drug-free workplace substance abuse policy. The guidelines for determining reasonable suspicion, as noted above, will be followed.

Once the determination has been made that an employee is to be tested based upon reasonable suspicion, the department director or his/her designee should then transport the employee to the collection site or make other appropriate arrangements for transportation. The collection site personnel should be notified that the reason for testing is reasonable suspicion.

Once the procedure has been completed, the employee should be transported back to the department director's office where the employee will be placed on administrative leave with pay until the results of the tests are available and given instructions to call the department director each workday, before the normal reporting time for that employee, for further instructions.

If the employee refuses to sign the release or refuses to be tested the employee should be advised that refusal under the county government policy is insubordination. If the employee continues to refuse, the employee should be transported back to the department director's office. The department director will place the employee on administrative leave with pay with instructions to call his/her office before the normal reporting time for that employee on the following workday.

If the department director feels that the employee is in no condition to operate a vehicle, then the employee should be transported home. Under no circumstances should the employee be allowed to drive, and if the employee insists, the department director should tell the employee that if he/she gets in a vehicle to drive that he/she will call the police or the sheriff's department and give them the location, license plate number, etc.

In the event of positive test results, the MRO will contact the department director and the human resources director who will then review other records of the employee and contact the county law director to work out proper disciplinary procedures, if any, in accordance with this Code.

c.

Promotion and transfer testing. Once an employee has applied for a safety-sensitive position within the county government that requires drug and alcohol testing and has successfully completed, if required, the written and skills testing being administered for that job, then the employee is considered as one of the qualified applicants for the position and will be subject to the drug and alcohol testing procedures. Up to this point an applicant can withdraw from consideration for the position without sanctions.

The human resources department will notify the employee on the day the testing is to be accomplished as to the time for the employee to be at the designated collection site. Since this testing will be done before or after the employee's normal working hours, the employee must be contacted before the end of that employee's shift. Employees should be tested as soon after their shift as possible.

Once the employee has been scheduled for testing, if the employee refuses to be tested, the employee will be considered insubordinate and subject to disciplinary procedures. If an employee has been notified to go for testing and fails to show up for the test, this will be considered the same as refusal to test unless a medical emergency or accident prevents the employee from testing, in which case credible documentation will be required that substantiates the reason for being absent from the testing. If in the sole discretion of the department director the employee is allowed to be tested at a later date, the above procedure will be repeated. In no case will an employee be allowed more than one opportunity to be rescheduled for testing.

Employees who refuse to be tested or who do not appear for testing and do not have a documented credible reason for being absent from the testing time will be subject to disciplinary procedures and will cease to be considered a viable candidate for the current position and for any future position openings in this classification until the employee has signed a release for drug testing at the time of submitting any future applications for this classification.

The collection site personnel should notify the human resources director in the event an employee refuses to test or does not show for testing.

In the event of positive test results, the MRO will contact the human resources director who will then review other records of the employee and contact the county law director to work out proper disciplinary procedures, if any, in accordance with this Code.

d.

Return to duty testing. This testing will apply when an employee who has been given an opportunity for rehabilitation for drugs and or alcohol is returned to duty. Prior to the employee coming back on the job, the employee must be examined by the MRO and a drug and/or alcohol test done which shows negative results. The human resources director may consult with the MRO and the rehabilitation program officials to determine an appropriate follow-up testing program following the county government policy and prepare a follow-up program which will include, among other things, the appropriate period for testing as determined. This agreement must be signed by the employee before the employee is allowed to return to the job.

All testing done as a result of the above conditions will be conducted in accordance with the procedures contained herein for drug testing.

In the event of positive test results, the MRO will contact the human resources director who will contact the county law director to work out disciplinary procedures, if any, in accordance with this Code.

e.

Commercial driver license (CDL). County employees who are required by job classification to possess a valid CDL must meet all the Federal Motor Carrier Safety Administration's alcohol and drug testing requirements.

(1)

Federal alcohol and drug testing requirements for the Tennessee CDL Classification.

Rule application. The federal motor carrier safety administration's alcohol and drug testing rules apply to every person and to all employers of such persons who operate commercial motor vehicle in commerce in any state and is subject to the commercial driver's license requirements of 49 CFR Part 40 and 382.

Tests required.

A.

Pre-employment. This test is required and negative results must be received before the county will allow a driver to perform a safety sensitive function (drive a county vehicle). The pre-employment test is only required for controlled substances. However, alcohol testing is permitted.

B.

Reasonable suspicion of drug or alcohol use. Whenever management or the medical review officer reasonably suspects that work performance or on-the-job behavior may have been affected in any way by illegal drugs or alcohol or that the driver may have otherwise violated the county government drug-free workplace substance abuse policy, the driver may be required to submit a breath and/or urine sample for drug and alcohol testing.

C.

Random. This unannounced testing is based on a random selection of drivers. The selection must be made by a scientifically valid method and all drivers covered by this rule must have an equal chance of being tested. The names of drivers who are selected for testing must be kept confidential until such time that the county notifies the driver to take the test. Once the driver is notified, the driver must immediately proceed to the testing facility and undergo testing. Every driver's name that is selected for testing must be returned to the selection pool so that all drivers have an equal chance of being selected at any time.

1.

Alcohol testing. Random alcohol testing is required by the department of transportation. However, random alcohol tests can only be administered just prior to a driver performing a safety-sensitive function, or just after performing a safety-sensitive function.

2.

Controlled substance testing. Random controlled substances tests can be conducted at any time the driver is notified.

D.

Post-accident. This test applies to all CDL drivers who are involved in fatal crashes. The test must also be conducted on all CDL drivers who are cited for moving violations arising in a crash that requires a vehicle being towed or an injury requiring medical attention away from the scene. The alcohol test must be conducted within eight hours and the controlled substances test must be conducted within 32 hours of the crash.

E.

Return-to-duty. Return-to-duty tests are only required after an employee has completed the "return-to-duty" process, and wants to return to work in a safety sensitive function (i.e., driving CMVs). Return-to-duty tests replace the pre-employment test for "positive" tested and "refusal" drivers.

F.

Follow-up testing. Follow-up drug and alcohol tests are required as prescribed by the substance abuse professional (SAP) who signs the return-to-duty report. Follow-up tests consists of a minimum of at least six unannounced directly observed tests conducted during the first 12 months following the return-to-duty test.

(2)

Failure of a driver to submit to a required test. If a driver who is selected refuses to submit to a test, the driver and the county must follow the requirements of 49 CFR Part 40, and 382.

f.

Changes to procedures. This procedure may be amended from time to time to facilitate changes in the county government's drug free workplace substance abuse policy as necessary.

(3)

Definitions as used in this policy.

Conviction means a finding of guilt, including a plea of no-contest, or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the federal or state criminal drug statutes.

Criminal drug law means a federal or non-federal criminal statute involving the manufacture, distribution, dispensing, possession, or use of any controlled substance.

Drug or illegal drug means a controlled substance as defined in Schedules I through V of Section 202 of the Controlled Substances Act.

Illegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C.A. § 812). Such term does not include the use of a drug taken under the supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act.

(Ord. No. O-16-8-101 , § 1(Exh. A), 9-26-16)