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DRUG AND ALCOHOL TESTING POLICY FOR EMPLOYEES IN POSITIONS
REQUIRING A COMMERCIAL DRIVER'S LICENSE (CDL) AND DEFINED AS
Effective January 1, 1995
Major Revision #1, March, 2012
The purpose of this memorandum is to outline the State of
As an employer, the State of
As a result of enactment of OTETA, the Federal Highway Administration (FHWA) instituted rules that mandate alcohol and drug testing for employees in positions requiring a Commercial Drivers License (CDL) and defined as safety sensitive. Employees in positions requiring a Commercial Drivers License (CDL) and defined as safety sensitive are subject to this policy and hereafter in this policy will be referred to as employee and/or employees. These rules, which become effective January 1, 1995, require pre-employment, reasonable suspicion, post-accident, random, follow-up, and return to duty drug and alcohol testing.
II. PROGRAM REQUIREMENTS
A. Employees Subject to Testing
FHWA rules provide that safety sensitive employees who operate vehicles requiring a CDL must be subject to drug and alcohol testing. A CDL is required of any person who operates a motor vehicle defined as: a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle -
- Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
- Has a gross vehicle weight rating of 26,001 or more pounds; or
- Is designed to transport 16 or more passengers, including the driver; or
- Is of any size and is used in the transportation of materials found to be hazardous for the purpose of the Hazardous Materials Transportation Act.
Examples of positions deemed to require a CDL include bus drivers, drivers of trucks over 26,000 GVWR, and snowplow drivers.
Each department shall identify a complete listing of the safety-sensitive job functions and corresponding position titles located in the respective organizations. That listing shall be attached to this policy memorandum and shall be updated as necessary.
B. Participation as a Condition of Employment
All employees in, or applicants for, positions defined as safety-sensitive in Section 11, A above must participate in the drug and alcohol testing program prescribed by FHWA rules as a condition of employment. Failure to participate and comply with program requirements may result in disciplinary action up to and including termination of employment.
C. Prohibited Behavior
It is the policy of the State of
D. Circumstances for Testing
FHWA rules require that drug and alcohol tests be given to safety-sensitive employees in specific circumstances: pre-employment, reasonable suspicion, post-accident, random, return to duty, and follow-up. In order for employees to recognize the circumstances which may initiate these tests, the following definitions are provided:
A safety-sensitive employee shall not use alcohol for eight (8) hours following an accident or until the employee undergoes a post-accident alcohol test, whichever occurs first.
The requirement to test for alcohol and drugs following an accident shall in no way delay necessary medical attention for injured people or prohibit a safety-sensitive employee from leaving the scene of an accident to obtain assistance in responding to the accident or to obtain necessary emergency medical care. However, an employee who is subject to post accident testing shall remain readily available for such testing or may be deemed to have refused to submit to testing.
The test dates shall be spread reasonably throughout the year with no established pattern. Testing will be unannounced as well as random.
Once the employee has been notified that he/she has been selected for random testing, the employee shall report immediately to the collection site. Employees shall be individually and discretely notified to report to the collection site and they shall be assured that they have been selected for a routine test. Schedules shall be adjusted so that additional personnel may be available to substitute for employees being testing.
Before a return to duty test is performed, the employee must be evaluated by a substance abuse professional who shall determine what assistance, if any, the employee may need and shall determine whether the employee has followed recommendations by a substance abuse professional (SAP) including participation in any rehabilitation program.
FHWA rules require that all Return To Duty tests be conducted under direct observation.
E. Behavior that Constitutes a Refusal to Submit to a Test
The following actions or behaviors shall constitute a refusal to submit to a required test:
F. Testing Procedures
The OTETA requires that drug testing procedures for safety sensitive employees include split specimen techniques. Each urine specimen is sub-divided into two containers labeled as primary and split specimens. Both specimens are forwarded to a laboratory certified by the U.S. Department of Health and Human Services (DHHS). Only the primary specimen is used in the urinalysis. The split specimen remains sealed and stored unless, and until, it is required for confirmation of a positive test.
An initial screening test is performed. If the test is positive for one or more drugs, a confirmation test is performed for each identified drug using gas chromatography/mass spectrometry (GC/MS) analysis. GC/MS confirmation ensures that over-the-counter medications are not reported as positive results.
If the analysis of the primary specimen confirms the presence of controlled substances, the employee has seventy-two (72) hours to request that the split specimen be sent to another DHHS certified laboratory for analysis. The split specimen procedures provides the employee with an opportunity for a second opinion.
All drug test results are reviewed and interpreted by a physician, Medical Review Officer (MRO), before they are reported. If the laboratory reports a positive result to the MRO, the MRO contacts the employee and conducts an interview to determine if there is an alternative medical explanation for the presence of a controlled substance in the specimen.
If the employee provides appropriate documentation and the MRO determines that there is a legitimate medical use of the prohibited drug, the test result is reported as negative.
Urine specimens are analyzed for the following drugs:
Two breath tests are required to determine if a person has a prohibited alcohol concentration. Any result from the screening test is considered negative if the alcohol concentration is less than 0.02. If the alcohol concentration is 0.02 or greater, a confirmation test must be conducted. The employee and the BAT complete the alcohol testing form to ensure that results are properly recorded. The confirmation test must be conducted using an EBT that prints the results, date, time, in sequential test numbers, and, the name and serial number of the EBT to ensure the reliability of the results.
The EBT shall be conducted by BAT's employed by a drug and alcohol testing organization under contract by the State of
Maine. Agents of the State of Maine or any of its departments shall not perform the breath alcohol test. Law enforcement officers will not conduct the tests as part of roadside inspections. Under certain circumstances, post-accident tests conducted by law enforcement personnel will be acceptable.
Exceptions to these confidentiality provisions are limited to a decision maker in arbitration, litigation, or administrative proceedings arising from a positive drug test or other violation of these rules.
Statistical records and reports are maintained by the State of
Maine and the alcohol and drug testing provider. This information is aggregate data and is used only to monitor compliance with the FHWA rules.
G. Consequences of the Use of Drugs and the Misuse of Alcohol
An employee found to have violated any provision of G, 1, a, shall be immediately removed from safety-sensitive duty for twenty-four (24) hours, and the incident shall be recorded. Further, the employee will be subject to disciplinary action up to and including termination of employment.
No employee who has engaged in any prohibited alcohol conduct as defined in section G, l, b-f, shall be allowed to perform safety-sensitive functions until the employee has been evaluated by a substance abuse professional. Before an employee returns to duty performing a safety-sensitive function; the employee must undergo a return to duty alcohol test with a result indicating alcohol concentration of less than 0.02.
- Consequences of Use of Drugs - An employee who has a verified positive drug test result must be immediately removed from safety-sensitive functions. The employee who has a verified positive drug test result shall not be allowed to perform safety-sensitive functions until the employee has been evaluated by a substance abuse professional. Before an employee returns to duty performing a safety-sensitive function, the employee must undergo a return to duty substance test with a verified negative result.
An employee who has an initial verified positive drug test result will be subject to disciplinary action up to and including termination of employment.
However, the Maine Substance Abuse Testing Law provides that before any disciplinary action is initiated in the case of an employee who has an initial verified positive drug test result, the employer shall provide the employee with an opportunity to participate for up to six (6) months in a rehabilitation program. If the employee chooses not to participate in a rehabilitation program, the employee is subject to the disciplinary provisions of this policy.
Any subsequent verified positive drug test will result in disciplinary action up to and including termination of employment.
- Refusal to Submit to a Required Alcohol or Drug Test (as defined in Section 11, E.) Refusal or failure to submit to a required alcohol or drug test constitutes a failed test (not subject to the provisions of the Maine Substance Abuse Testing Law noted above), resulting in immediate removal from safety-sensitive duty and appropriate disciplinary action as prescribed under Section G 1, and 2. The employee may not return to safety-sensitive duty until he or she has undergone return-to-duty testing with verified negative results. The employee shall be subject to the provisions for follow-up testing as defined in Section 11, D, 6.
H. Training for Supervisors
The State of
Maine shall ensure that all supervisors and other persons designated to determine whether reasonable suspicion exists to require an employee to undergo testing must receive a minimum of sixty (60) minutes of training on alcohol misuse and a minimum of sixty (60) minutes of training on controlled substances use. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.
The training shall include an overview of the program requirements, disciplinary procedures, confrontation and documentation procedures, and rehabilitation and treatment options which are available.
I. Training for Safety-Sensitive Employees
J. Supervisory Responsibilities
It is the policy of the State of
K. Management Responsibilities
It is the policy of the State of
L. Employee Assistance Program (EAP)
The State of
Maine's EAP is a confidential voluntary service available to all employees and their family members. The EAP was created with the aim to assist employees and their families in maintaining their health and well-being.
The State of
Maine and the unions representing State employees recognize that a wide range of problems, not directly associated with an employee's work, may have an adverse effect on an employee's work, may have an adverse effect on an employee's job performance and health. Further, personal problems of a family member may also affect an employee's job performance. It is recognized that many personal problems can be successfully treated, provided the problem is identified and referral is made to an appropriate source. The State of Maine EAP offers assistance on a broad range of issues - marital or family discord, distress, alcohol or drug abuse, legal problems, or other concerns. These problems are recognized as progressive and potentially destructive, but they are also recognized as treatable disorders.
Any employee who may be experiencing a problem of this type is encouraged to seek information and assistance on a confidential basis by contacting the EAP.
Participation in the EAP is on a voluntary basis. Although supervisors, union officials and co-workers may encourage an employee to seek help, the decision to seek and accept assistance is the responsibility of the employee.
Participation in the EAP is strictly confidential. All records and information regarding referral, diagnosis, and treatment will be maintained by the EAP and treated as confidential. The program ensures that participants' names and the nature of the problems are not available to supervisors, co-workers, or anyone else.
Employees participating in the EAP are not immune from discipline, however, employees will be evaluated strictly on job performance. Participation in the program will not be used against anyone in disciplinary proceedings, nor will participation be detrimental to an employee's job security, promotional opportunities or status.
The EAP is a free service at no cost to participants. If an employee is referred by the EAP to other professional services, the EAP will review the health insurance benefit plan to determine what, if any, costs must be assumed by the employee. Every effort will be made to refer employees to the least costly, highest quality resource available.
All employees in safety-sensitive positions and their respective supervisors shall receive training on the services, access, and use of the EAP. Such training may be conducted separate from the training required under H and I above.
M. Dilute Samples – Current Employee
N. Dilute Samples – Applicant for a CDL Safety Sensitive Position
O. Employee Admission of Alcohol and Controlled Substances Use
Maine StateGovernment encourages drivers who recognize that they may have a problem with drugs and/or alcohol to seek assistance for resolving that problem before they have a DOT violation due to a positive test result or because they engaged in other DOT prohibited conduct.
A driver who admits to a drug and/or alcohol problem will not have a DOT violation. He/she will be given an opportunity to obtain a chemical use assessment from
Maine State Government’s Employee Assistance Program (EAP). Prior to the assessment, however, Maine State Government will require the driver to sign a release of information that will enable Maine State Government’s DER (Designated Employer Representative) to receive the results of the assessment, and to receive subsequent reports related to the assessment, and the driver’s successful completion of all recommendations for assistance.
The following conditions must apply to the driver’s self-admission:
- The driver’s admission cannot be made during his/her on-duty time. It must occur prior to the driver’s reporting for duty on any particular day.
- The driver’s admission cannot be made in an attempt to avoid a required DOT drug test.
- 49 CFR Part 382.121 requires
Maine State Government to remove the driver from safety-sensitive functions, including driving.
- When Maine State Government is satisfied that the driver has complied with the EAP's recommendations for assistance, Maine State Government will return the driver to safety-sensitive functions, provided that:
- Prior to returning to safety-sensitive functions, the driver will be required to provide a negative DOT drug and/or alcohol test result on a Return-to-Duty test.
- A driver who self-identifies under this policy, and who then fails to comply with the EAP's recommendations will be considered to have engaged in conduct prohibited by the DOT in 49 CFR Part 382, Subpart B, and will not be permitted to return to safety-sensitive function until he/she has successfully complied with the SAP return-to-duty process.
Maine State Government will adhere to the following terms, in accordance with 49 CFR Part 382.121;
Maine StateGovernment will take no adverse action against a driver who admits to drug and/or alcohol use under the terms above.
- A driver who self-identifies under this program will be given reasonable time to obtain the required assessment and assistance.
Maine State Government requires the assessment process to be initiated within three (3) days of the driver’s disclosure.
- A driver who complies with all requirements, and who complies satisfactorily with the EAP's recommendations for assistance, will be permitted to return to safety-sensitive functions.
- A driver who cooperates and successfully complies with this program will not be considered to have had a DOT violation of prohibited conduct under 49 CFR Part 382, Subpart B.
P. Random Testing Percentages
The annual percentage of employees randomly tested for alcohol and drug testing shall comply with the annual minimum drug and alcohol random testing rates established within
DOT Agencies. U.S.
Q. Prescription Medical Marijuana Use
Any safety sensitive employee who operates vehicles requiring a CDL and who is prescribed marijuana under the
Maine Medical Marijuana law shall inform his/her department’s Equal Employment Opportunity Coordinator that they are a registered patient.
R. Random Pool Database Updating
Each department participating in the State of
Maine Drug and Alcohol Testing Program agrees to provide to the Office of Employee Benefits on a quarterly basis, if necessary, any addition or deletion of names to the random pool list. Additions could result from new hires or transfers, while deletions could result from retirements, terminations or change in CDL driving status.
S. Drug and Alcohol Testing Program Manager
Questions regarding the drug and alcohol testing program and the policies and procedures required for compliance with federal law and rules shall be directed to the designated program manager identified below.