Drug Testing for Public Agencies
Posted on August 15, 2017 by Andrea Shindlebower in Drug Testing

Weekly HR News – Drug Testing

Drug Testing For Public Agencies

We expect employees to come to work free of their personal issues. However, a personal struggle as all-consuming as addiction will inevitably spill into the professional realm.  That is why it is crucial for employees and supervisors alike to understand how addiction manifests itself in the workplace and to have a thorough knowledge of related city personnel policies.

Personnel policies should begin by emphasizing in positive terms the need for safety in the workplace and adherence to job requirements and work quality, and go on to cite goals such as improving safety and productivity.

When writing or amending policies, cities also need to keep in mind that the laws regarding governmental drug testing policies, unlike for the private sector, place restrictions on who, what, when and how the testing can done.  Governmental employers must have a compelling justification for testing or risk violation of the employee’s Fourth Amendment rights.

Under a city policy, employees can be tested based on reasonable suspicion, post-accident and pre-employment (only after a conditional offer of employment).  Random testing, unlike in the private sector, is reserved for those employees who are considered safety-sensitive.  These employees have safety-sensitive responsibilities to citizens within the areas of public safety.  Examples of such employees include:

  • Police officers
  • Emergency dispatchers
  • Firefighters
  • Heavy equipment operators
  • Employees with commercial driver’s license (CDL)
  • Mechanics that work on CDL-regulated vehicles
  • Gas pipeline workers
  • Personnel who drive vehicles carrying senior citizens, handicapped peopled or children
  • Lifeguards

 

Before doing any type of testing, a written policy must be in place and a copy of the policy should be given to all employees at least 60-90 days in advance of the start of testing.  This allows any employee with a drug or alcohol addiction to seek rehabilitation.  And be certain that all employees sign a receipt of acknowledgement that they have received, understood and agree to abide by the policy.

Your policy must explain how, when, where and for what reason testing may occur and outline the steps that will be taken to ensure employee confidentiality. The records should be stored and locked separately from general employment records with access to these records only on a strict need-to-know basis.  It should also explain the consequences of an employee’s refusal to test, interference in the testing process, or a positive test. 

In addition, it is important that the policy address federally regulated employees (such as CDL) separately.  One of the main differences is the requirement that federally regulated employees are randomly tested in their own separate pool.   The regulations also require that a Medical Review Officer (MRO) review the drug tests before they are given back to the employer.  Even though this is only a requirement for federally regulated employees, it is recommended that an MRO be used for all the city’s drug testing, since they are formally trained and certified. 

Lastly, the policy should also set out guidelines for mandatory training for both supervisors and employees.   The ability to know the ins and outs of testing can only be ascertained through sufficient training.  Remember that lack of knowledge can lead to liability issues that cities cannot afford. 

A drug and alcohol policy is much more than drug-testing in the workplace. An effective policy is a legally compliant policy that provides employee awareness and education, supervisor training and a plan of action. Taken together, it conveys a full, comprehensive program designed specifically to meet the needs of your city and that will set expectations for current and future employees. 

For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist and be sure to attend the Drug Testing webinar on September 8th.

 

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Drug Testing Changes for 2016
Posted on March 15, 2016 by Andrea Shindlebower in Drug Testing

Drug Testing Changes for 2016

Effective as of January 1, 2016, the minimum annual percentage rate for random controlled substances testing is 25 percent of the average number of driver positions. The minimum annual percentage rate for random alcohol testing will remain at 10 percent.

Cities that drug test CDL employees have been testing at 50 percent of the average number of CDL positions, so at this point, cities have the option of amending their policies to 25 percent or keeping it at 50 percent. 

More information from the Federal Motor Carrier Safety Administration can be found at https://www.fmcsa.dot.gov/regulations/enforcement/annual-random-controlled-substances-testing-percentage-rate-calendar-year

Questions regarding this or any other personnel policy changes can be directed to Andrea Shindlebower Main, KLC Personnel Services Specialist.

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Random Drug Testing – What Employees Are Considered Safety Sensitive?
Posted on December 29, 2015 by Andrea Shindlebower in Drug Testing

Random Drug Testing – What Employees Are Considered Safety Sensitive?

Because cities are governmental entities, cities should be aware that randomly drug testing employees who do not serve in safety sensitive positions could result in significant liability.  Testing for employees occupying positions that are not categorized as safety sensitive must be based on a reasonable suspicion that drug use is occurring or in post-accident circumstances.  The information below can be used to help guide you in determining which positions may be safely categorized as safety sensitive.  This information should be reviewed with your city attorney before any action is taken. 

Safety sensitive positions are those that contain duties that are routinely performed as a part of that position which could reasonably be expected to affect the health, safety and security of others.

Below is a list of possible public employees that could be considered to have exceptional safety-sensitive responsibilities in the area of public safety. They include:

  • Police officers
  • Emergency dispatchers
  • Emergency Medical Technicians/Paramedics
  • Firefighters 
  • Heavy equipment operators
  • Employees with commercial driver’s license (CDL)
  • Mechanics working on CDL regulated vehicles
  • Gas pipeline workers

Additionally, a case can possibly be made that personnel who drive certain city vehicles (such as vehicles transporting senior citizens, the handicapped and children), city swimming pool life guards, and personnel supervising children on city playgrounds can be included in the category of safety sensitive personnel. 

When making these determinations the city must keep in mind that random testing can only be done on an employee whose job duties can be shown to directly impact public safety.

For more information on drug testing or other personnel matters, contact Andrea Shindlebower with the KLC Legal Department.   

 

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