Partnership for a Drug-Free New Jersey Drugs Don't Work in NJ!

Transcription

1 Partnership for a Drug-Free New Jersey Drugs Don't Work in NJ! MODEL DRUG-FREE WORKPLACE POLICIES AND PROCEDURES The following policies and procedures may be useful as your company establishes/updates its drug-free workplace policy. Each company will have its own policy needs and should view these guidelines as a starting point. These policies are designed for small employers who may not have an established Employee Assistance Program (EAP). Companies that do have an EAP should define the role of the EAP in their policy. The following materials are provided in this section: Summaries of the federal Drug-Free Workplace Act, Department of pg. 1-3 Transportation Regulations, and Department of Defense regulations The Americans with Disabilities Act pg. 6 The New Jersey Law Against Discrimination pg. 6 Reasonable accommodation pg. 6 Unions and collective bargaining pg. 6 Medical marijuana in the workplace pg. 7 Policies and Procedures for Companies Implementing Drug-Testing pg Notice informing employees that the company is revising its substance pg awareness policies and procedures Disclaimer of Contract Form pg. 21 Substance Abuse Consent Form for Companies Implementing Drug-Testing pg. 22 Substance Abuse Policy Statement for Companies That Are Not Drug-Testing pg. 23 Substance Abuse Consent Form for Companies That Are Not Drug-Testing pg 24 Notice to Employees Regarding Implementation of Drug-Testing Procedures pg 25 Guidelines on Tobacco and Alcohol Use pg 26 How to avoid legal challenges when establishing/updating a substance abuse policy pg 27 Sec. II - 1

2 These guidelines were reviewed by David G. Evans, Esq., who practices in Belvidere, NJ and is the author of the books Drug Testing Law, Technology and Practice and Designing an Effective Drug-Free Workplace Compliance Program, ( Mr. Evans concentrates his practice on employment law. However, these guidelines should not be considered legal advice. The Partnership for a Drug-Free New Jersey (PDFNJ) does not provide legal advice. PDFNJ recommends all company policies and procedures on substance abuse be reviewed by legal counsel experienced in labor and employment issues. If you would like to receive this document on Microsoft Word, send your request to ddwini(2ldrugfreenj.org. Sec. II - 2

3 Major laws effecting drug-free workplaces in New Jersey Drug-Free Workplace Act of Federal grantees and contractors in general. The most important piece of legislation regulating Federal contractors/grantees is the Drug-Free Workplace Act of This Act requires any organization that receives a Federal contract worth at least $100,000 to establish a drug-free workplace policy. It also requires that all organizations receiving Federal grants of any size establish and maintain such a policy. At a minimum, the organization must: 1. Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use, and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy. 2. Establish a drug-free awareness program. The program should inform employees of the dangers of workplace substance abuse; review the requirements of the organization s drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs that may be available. 3. Ensure that all employees working on the Federal contract understand their personal reporting obligations. Under the terms of the Act, an employee must notify the employer within 5 calendar days if he or she is convicted of a criminal drug violation in the workplace. 4. Notify the Federal contracting agency of any covered violation. Under the terms of the Act, the employer has 10 days to report that a covered employee has been convicted of a criminal drug violation in the workplace. 5. Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty of some kind or requiring that the employee participate in an appropriate rehabilitation or counseling program. 6. Maintain an ongoing good faith effort to meet all the requirements of the Act throughout the life of the contract. 7. Covered organizations that fail to comply with terms of the Drug-Free Workplace Act may be subject to a variety of penalties, including suspension or termination of their Federal grants/contracts and prohibition from applying for Federal Government funds in the future. What is not required? The Drug-Free Workplace Act does not require you to establish an Employee Assistance Program or implement a drug-testing program. Sec. II - 3

4 Department of Transportation Rules and Regulations. Employers and employees in fields that affect public safety and national security are, understandably, subject to additional drug testing requirements. The most important piece of Federal legislation affecting safety-sensitive industries is the Omnibus Transportation Employee Testing Act of 1991.This Act requires drug and alcohol testing of all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. Any employer whose business is regulated by one of the following Federal agencies is covered under the Act: Federal Aviation Administration United States Coast Guard Federal Highway Administration Urban Mass Transportation Administration Federal Railway Administration Research and Special Programs Administration While each of these agencies has developed its own specific set of guidelines and procedures for complying with the Omnibus Transportation Employee Testing Act, these core requirements apply to all employers and employees within the transportation industry: 1. All employers in the transportation industry are required to test safety-sensitive employees at certain key points in their professional careers. These key points include preemployment (before the employee is hired), whenever there is reasonable suspicion that the employee has been involved in drug use, immediately after the employee is involved in an accident, and before allowing the employee to return to duty following suspension for drug abuse. 2. All employers in the transportation industry are also required to have a program of random drug testing in place. 3. All drug testing conducted under the Act must be carried out by a laboratory that is certified by the U.S. Department of Health and Human Services. 4. All drug testing conducted under the Act must test for five different classes of drugs (and only those five classes): marijuana, cocaine, amphetamines, opiates, and phencyclidine (PCP). 5. All alcohol testing of employees must strictly adhere to the Department of Transportation s (DOT s) policies and procedures for alcohol testing. The testing must be conducted using devices and equipment approved by DOT. 6. All positive tests must be reviewed by a trained Medical Review Officer. Employees must be allowed to consult with this officer before the test result is reported to the employer. Sec. II 4

5 7. All employees, whether in safety-sensitive positions or not, must receive drug/alcohol awareness training and education. 8. All supervisors must receive at least 2 hours of training in substance abuse detection, documentation, and intervention. Half this training time should be devoted to drug abuse, the other half to alcohol abuse. 9. Any employee who is determined to have a substance abuse problem must be referred by the employer to a trained Substance Abuse Professional. This person will be responsible for evaluating the employee s treatment needs and assessing the employee s ability to return to work. 10. Employers who are subject to the requirements of the Omnibus Transportation Employee Testing Act must ensure that their policies and procedures strictly adhere to DOT s requirements. Otherwise, employers run the risk of failing to comply with the Act or violating their employees civil liberties, both of which can have serious consequences. Organizations can obtain more detailed information on how to meet the requirements of the Act from DOT s Office of Drug and Alcohol Policy and Compliance, which publishes helpful guidelines and manuals for employers and employees. These materials are available online at You can also call: CAL-DRUG. Department of Defense Rules and Regulations. Transportation workers are not the only types of employees whose work affects public safety or security. The Department of Defense (DOD) has developed its own set of regulations for contractors working in the national security arena (section 48 CFR ). Under these regulations, all DOD contractors with access to sensitive, classified information must maintain a drug-free workplace policy that includes the following: 1. A comprehensive employee assistance program, including coordination with local community service providers and resources. 2. Provision for self-referrals and supervisory referrals for drug treatment. 3. Supervisory training on detecting and responding to illegal drug use. 4. A carefully controlled and monitored employee drug testing policy. This testing policy should include provisions for testing when there is reasonable suspicion that an employee has been involved in illegal drug use, when an employee has been involved in an accident or unsafe practice, as part of a program of counseling or rehabilitation, and as part of a voluntary employee drug testing program. The DOD regulations also require covered contractors to ensure that their drug testing policies are consistent with applicable State laws and that they are agreed to by any relevant labor unions. For more information on the Department of Defense s requirements, organizations can consult the Code of Federal Regulation and DOD s procurement center Web site at Sec. II - 5

6 The Americans with Disabilities Act of 1990 This ADA prohibits discrimination against "qualified people with disabilities" and limits an employer's ability to inquire into an employee's or job applicant's medical history. It does, however, permit drug testing (before and after job offer) and alcohol testing (after job offer) and it permits employers to prohibit alcohol abuse or illegal drug use in the workplace. Although the Act does not protect illegal substance abusers and alcoholics who cannot safely perform their jobs or have work performance problems, it does protect those who have been rehabilitated or who are participating in supervised rehabilitation programs and not currently using drugs or who have a history of addiction. The New Jersey Law Against Discrimination The New Jersey Law Against Discrimination (LAD) prohibits unlawful discrimination against any person because such person is or has been at any time handicapped unless the nature and extent of the handicap reasonably precludes the performance of the particular employment. Alcoholics and drug addicts can be considered to be handicapped under the law. Unless it can be clearly shown that a person's handicap would prevent such person from performing a particular job, it is an unlawful employment practice to deny to an otherwise qualified handicapped person the opportunity to obtain or maintain employment, or to advance in position in his/her job, solely because such person is handicapped. It permits employers to prohibit alcohol abuse or illegal drug use in the workplace. Reasonable Accommodation Under the ADA and the LAD, employers may be required to provide a reasonable accommodation to the limitations of a employee or applicant who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The determination as to whether an employer has failed to make reasonable accommodation will be made on a case-by-case basis. Reasonable accommodation can include: job restructuring, part-time or modified work schedules or leaves of absence to attend substance abuse treatment. Unions & Collective Bargaining Agreements Employers whose employees are members of a union or collective bargaining unit should know that unless drug or alcohol testing is required by law, implementing procedures for testing will likely be a subject of negotiation. Sec. II - 6

7 Medical marijuana In 2009, New Jersey passed a medical marijuana law. (NJSA 24:6I-1, et. seq. Effective: October 01, 2010). It is entitled the New Jersey Compassionate Use Medical Marijuana Act. Section 24:6I-14 of the acts states: Nothing in this act shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace. Because this law is new and has yet to be tested in the courts, there are some general guidelines you should follow: 1. Obtain the law and have an attorney review it based on the nature of your workplace needs. 2. Ensure that your drug-free workplace policy clearly prohibits the use of any drugs and other controlled substances that are illegal under federal or state law. Marijuana is still illegal for any use under federal law and you can prohibit use of any drug that is illegal under federal law. 3. If you have a reasonable suspicion that an employee is under the influence of marijuana or some other drug at work, clearly document the factual basis for your suspicion. It is far easier to defend your action based on observable facts than it is to base them only on a positive test. 4. If your workplace is subject to federal drug and alcohol testing requirements, note that fact in your policies and in any employee disciplinary or other employment actions you take to enforce a drug-free workplace. The federal law will override state protections. 5. You can deny or terminate employment based on a positive drug test for marijuana as it shows use of an illegal drug under federal law. Sec. II - 7

8 POLICIES AND PROCEDURES FOR DRUG TESTING This policy outlines expected employee behavior that is considered an essential qualification for all job assignments. It also covers the responsibilities of various company departments for administering the substance abuse program and outlines how the program will be implemented. I. PURPOSE The Company hereby implements a drug-free workplace policy that includes drug testing. These measures are necessary to prevent substance abuse by employees that affects job performance. This policy is intended to stop drug-related accidents, injuries, and poor work performance by striving to maintain a drug/alcohol-free work environment. The policy is based on the following facts: Medical studies show that substance use affects motor skills, memory retention, reasoning ability, and coordination. Except in extreme cases, it is difficult for laypersons or even physicians, to detect drug use by casual observation. No safe level of drug abuse has been established. Any measurable amount of mind-altering drug or alcohol in a person's body can cause some degree of impairment, even if that impairment is not readily apparent to a layperson. Employees who illegally use drugs on the job are engaged in illegal conduct and are thus not protected under New Jersey or federal laws that protect disabled/handicapped persons. Employees are responsible for making their own life style choices. However, the Company sees no reason to accept even small risks that on-the-job or off-the-job drug use by employees might cause. II. EXPECTED EMPLOYEE BEHAVIOR A. Abuse of Alcohol or Illegal Drugs - the Company expects its employees to report to work fit for duty with no alcohol or illegal drugs in their bodies. This includes drugs that are illegal under federal or state law. Violation of this policy can result in sanctions against employees up to and including discharge from employment. Any employee with an illegal drug or alcohol in his or her body who becomes involved in any accident affecting persons or property while on duty is subject to immediate discharge. All job applicants must be drug-free at the time of their pre-employment medical examination. An integral part of the overall substance abuse policy will be the use of drug testing. Such testing has been demonstrated to be an accurate method of determining the presence or absence of illegal drugs in a person's body. Sec. II - 8

9 B. Abuse of Legal Drugs - Various drugs that may be used legally can cause potential safety or other job performance problems. Improper use of such substances on duty will not be tolerated. Employees who are found to improperly use such substances on duty, or who are complained about by customers for improperly using these substances on duty, will be referred to the Substance Abuse Program Administrator for evaluation and further action that can include discharge. Although the use of medical marijuana is legal under state law, its use is illegal under federal law and such use is forbidden under this policy. The state law shall not be construed to require an employer to accommodate the medical use of marijuana in any workplace. C. Possession of Illegal Drugs - Any employee who possesses, sells, or receives an illegal drug while on duty or on Company property, or who leaves an illegal drug on Company property, or at a work site, will be immediately discharged and the matter will be referred to the law enforcement authorities for investigation. Although the use of medical marijuana is legal under state law, its use is illegal under federal law and such use is forbidden under this policy. The state law shall not be construed to require an employer to accommodate the medical use of marijuana in any workplace. Such illegal behavior on the part of an employee may damage the Company's reputation or, in the case of leaving illegal drugs on Company property, may incriminate innocent persons. III. RESPONSIBLE DEPARTMENTS A. The Substance Abuse Program Administrator - The Substance Abuse Program Administrator is responsible for the overall administration of this program and will instruct all managers and supervisors in the following topics: Understanding the drug-free workplace policy. Informing employees about the policy. Implementing the policy. Identifying potential drug abusing employees and/or establishing reasonable suspicion of drug use. B. Corporate Counsel -The Corporate Counsel is responsible for all legal assistance required in the administration of this policy. This responsibility includes handling all communications with attorneys representing job applicants or employees with issues arising under this policy. Supervisor requests for legal assistance shall be coordinated with the Substance Abuse Program Administrator. C. Medical Review Officer - The Medical Review Officer will receive all drug test results prior to having the results sent to the Company. The Medical Review Officer will contact any employee who tests positive, will evaluate the drug test, and will seek an explanation from the employee. If the Medical Review Officer concludes that the employee used drugs in violation of this policy, the Medical Review Officer shall report it to the Company. Sec. II - 9

10 IV. IMPLEMENTATION A. Definitions Confirmation Test - If the initial test is positive, a second test by gas chromatography mass spectrometry (GC/MS) should be done immediately. This confirmatory test is highly accurate and will rule out any false positives on the first test. Drug Test - a chemical test administered for the purpose of determining the presence or absence of a drug or drug metabolites in a specimen. Illegal Drug- amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, controlled dangerous substances, controlled substance analogs or volatile substances which produce the psychological or physiological effects of a controlled dangerous substance through deliberate inhalation or a metabolite of any of these substances, but shall not mean any of these substances, if the employee is utilizing any of these substances as prescribed by a licensed medical practitioner and if used in accordance with company policy. Marijuana is illegal under federal law and is considered an illegal drug under this policy. Initial Test - The first test of a specimen to determine the presence or absence of drugs or their metabolites in specimens. This initial test, if positive, should be confirmed by a confirmation test. Legal Drug - A drug prescribed for use by a duly licensed medical practitioner licensed to issue prescriptions or a drug that is authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human diseases, ailments or injuries. Medical Review Officer - a licensed physician with specific training in drug and alcohol testing procedures and substance abuse used by the Company to evaluate drug test results. On-Site Test - a drug test that is easily portable and can be administered in a location outside a laboratory and that has met generally accepted cutoff levels such as those in the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Reportable accident - means an on-the-job accident and if the accident involved: Bodily injury to any person; or One or more motor vehicles incurred disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle; or damage exceeds $500. Specimen - a tissue or product of the human body (e.g. urine, saliva, hair, blood, sweat) chemically capable of revealing the presence of drugs in the human body. Sec. II 10

11 B. Types of Drug-Testing Each company must determine which type of drug-testing procedures to implement. The following information covers various categories of drug-testing that can be done by New Jersey companies. Testing Job Applicants The Company requires all job applicants to be tested for the use of illegal drugs as a prequalification condition. Prior to collection of a specimen, applicants shall be notified that the specimen will be tested for the presence of illegal drugs. Job offers are contingent on passing the Company's medical review, including the drug test. Under no circumstances should new employees report to work before medical clearance is received. Testing for Reasonable Suspicion "Reasonable suspicion" means a belief that an employee is using or has used drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things: 1. Observable phenomena, such as direct observation of drug use and/or the physical symptoms or manifestations of being under the influence of a drug. 2. Abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work performance. 3. A report of drug use provided by reliable and credible source. 4. Evidence that an individual has tampered with a drug test, during his/her employ with the Company. 5. Information that an employee has caused or contributed to an accident while at work. 6. Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of drugs while working or while on the employer's premises or operating the employer's vehicle, machinery, or equipment. When there is reasonable cause to suspect that an employee is having drug-related work performance problems, or is displaying abnormal behavior that may be drug-related, a supervisor shall request that the employee submit to a drug test. A supervisor may take the following steps: 1. In conjunction with another supervisor, confront the employee stating his or her suspicions, and ask for an explanation. The conduct must be witnessed by at least two supervisors, if feasible. If only one supervisor is available, only one supervisor need witness the conduct. Additional management or security personnel may also be present as appropriate. Sec. II - 11

12 2. If suspected contraband is involved and the supervisor is not satisfied with the explanation, the contraband will be confiscated and a receipt will be issued. If an employee claims that items suspected of being contraband are prescription or otherwise legal drugs, a single item will be confiscated for testing arranged by the Substance Abuse Program Administrator. The contraband will be turned over to the law enforcement authorities. 3. Any employee who is "under the influence" will be suspended pending further investigation. Such an employee, who insists on driving away from a work site, will be instructed under penalty of discharge to use public transportation or other safe transportation and not to drive themselves. If appropriate, the employee will be advised that local authorities will be notified that the employee who seems to be "under the influence" is trying to leave the work site and drive. 4. If the employee seems to be "under the influence" or there exists other reasonable cause, the supervisor(s) shall require that the employee take a drug test. An employee shall submit to testing upon reasonable cause when requested to do so. Non-cooperation may result in discharge and other penalties. 5. The supervisor will then identify witnesses and prepare a detailed written statement describing his/her observations. The documentation of the employee's conduct shall be prepared and signed by the supervisor(s) within 24 hours of the observed behavior or before the results of the tests are released, whichever is earlier. Post Accident Testing An employee shall provide a specimen to be tested for the use of drugs as soon as possible after a reportable accident, but in no case later than 24 hours after the accident. An employee who is seriously injured and cannot provide a specimen at the time of the accident shall provide the necessary consent for obtaining hospital reports and other documents that would indicate whether there were any drugs in his/her system. Return To Duty Testing In order to ensure that employees remain drug-free after receiving education/counseling for a substance abuse problem, the Company will conduct Return to Duty Testing. The company will periodically test employees who return to work after participating in an alcohol or other drug rehabilitation program. This will only be done if the employee had tested positive on a drug test and/or had documented work performance problems before treatment that were related to substance abuse. Sec. II - 12

13 Random/Neutral Selection Testing New Jersey Supreme Court Ruling on Random Testing So far, the case law has only dealt with random testing in safely sensitive workplaces. The law on random testing in non-safety sensitive workplaces is unclear. In Hennessey v. Coastal Eagle Point Oil Company,129 NJ 81 (NJ 1992) the New Jersey Supreme Court found that random testing was legal in a safety sensitive workplace where there was a showing of drug use among employees. In addition, since the employee in question worked without direct supervision and was not under close observation, a drug test was an effective way of monitoring him. in such cases companies should use the following guidelines: 1. Minimize the intrusiveness of the testing process by using procedures that allow as much privacy and dignity as possible, and 2. Provide written notice announcing the program that details the method for selecting employees to be tested, warns employees of the lingering effect of certain drugs in the body, explains how the specimen will be analyzed, and notifies employees of the consequences of testing positive or refusing to take the test, and 3. Conduct only those tests necessary to detect the presence of drugs, and: 4. Preserve the confidentiality of drug test results. Random testing is a mechanism for selecting employees for drug tests that (1) results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected and (2) does not give the company discretion to waive the selection of any employee selected under the mechanism. Random drug tests conducted annually shall equal or exceed 25% of the total number of employees subject to testing. The Company shall use a random selection process for selecting employees to be tested for the use of drugs. Employees shall submit to drug testing when selected by a random selection process used by the Company. Sec. II 13

14 C. Testing Procedures The drug testing program is limited to tests for marijuana, cocaine, opiates, amphetamines, and Phencyclidines (PCP). This is subject to amendment at the discretion of the Company. Testing for drugs will use the following drug detection cutoff levels. If a specimen is identified as a positive on the initial drug test, a confirmation test using gas chromatography/mass spectrometry (GCMS) techniques at the cutoff levels listed below will be used to confirm the initial drug test. These cutoff levels are subject to change by the Company. (ng = nanogram, ml = milliliter) Marijuana metabolites Initial - 50 ng/ml Confirmation - THCA [FN1] - 15 ng/ml. Cocaine metabolites Initial ng/ml Confirmation - Benzoylecgonine ng/ml. Opiate metabolites Initial - Codeine/Morphine[FN2] ng/ml Confirmation - Codeine ng/ml - Morphine ng/ml. Initial - 6-Acetylmorphine - 10 ng/ml Confirmation - 6-Acetylmorphine - 10 ng/ml. Phencyclidine Initial - 25 ng/ml Confirmation - 25 ng/ml Amphetamines[FN3] Initial - AMP/MAMP [FN4] ng/ml Confirmation - Amphetamine ng/ml - Methamphetamine[FN5] ng/ml. Initial - MDMA [FN6] ng/ml Confirmation - MDMA ng/ml - MDA[FN7] ng/ml - MDEA[FN8] ng/ml FN1 Delta-9-tetrahydrocannabinol-9-carboxylic acid (THCA). FN2 Morphine is the target analyte for codeine/morphine testing. FN3 Either a single initial test kit or multiple initial test kits may be used provided the single test kit detects each target analyte independently at the specified cutoff. FN4 Methamphetamine is the target analyte for amphetamine/methamphetamine testing. FN5 To be reported positive for methamphetamine, a specimen must also contain amphetamine at a concentration equal to or greater than 100 ng/ml. FN6 Methylenedioxymethamphetamine (MDMA). FN7 Methylenedioxyamphetamine (MDA). FN8 Methylenedioxyethylamphetamine (MDEA). These drugs may have a lingering effect in the body. The presence of these drugs may affect the user and/or be detected in the body several days after use. Sec. II - 14

15 All specimen collection and testing for drugs under this policy shall be performed in accordance with the following procedures: 1. The collection of specimens shall be performed under reasonable and sanitary conditions. Individual dignity shall be preserved to the extent practicable; 2. Specimens shall be collected in a manner reasonably calculated to prevent substitution of specimens and interference with the collection or testing of specimens; 3. Specimen collection shall be documented, and the documentation procedures shall include labeling of specimen containers to reasonably preclude the likelihood of erroneous identification of test results. 4. Specimen storage and transportation shall be performed in a reasonable manner to preclude specimen contamination or adulteration; and 5. Specimen testing for drugs shall conform to scientifically accepted analytical methods and procedures. 10 Steps to Collection Site Security and Integrity 1. Pay careful attention to employees throughout the collection process. 2. Ensure that there is no unauthorized access into the collection areas and that undetected access (e.g., through a door not in view) is not possible. 3. Make sure that employees show proper picture ID. 4. Make sure employees empty pockets; remove outer garments (e.g., coveralls, jacket, coat, hat); leave briefcases, purses, and bags behind; and wash their hands. 5. Maintain personal control of the specimen and chain of custody forms at all times during the collection. 6. Secure any water sources or otherwise make them unavailable to employees (e.g., turn off water inlet, tape handles to prevent opening faucets, secure tank lids). 7. Ensure that the water in the toilet and tank (if applicable) has bluing (coloring) agent in it. Tape or otherwise secure shut any movable toilet tank top, or put bluing in the tank. 8. Ensure that no soap, disinfectants, cleaning agents, or other possible adulterants are present. Sec. II 15

16 9. Inspect the site to ensure that no foreign or unauthorized substances are present. 10. Secure areas and items (e.g., ledges, trash receptacles, paper towel holders, under-sink areas, ceiling tiles) that appear suitable for concealing contaminants. Any drug testing conducted or requested by an employer under this policy shall occur during or immediately after the regular work period of current employees, and shall be deemed to be performed during work time for purposes of determining compensation and benefits for current employees. Any testing for drugs under this policy may only conduct those tests necessary to determine the presence of illegal drugs in the specimen. A confirmation test shall use a method of equal or greater reliability than that used on the initial drug test. If, an initial drug test is negative, there shall be no confirmation test. All confirmed positive drug test results shall be reviewed by a Medical Review Officer before being used by the company. Within five working days after receipt of a confirmed positive test result, the Company shall, in writing, inform the employee of such positive test result and inform the employee in writing of the consequences of such a report and the options available to him/her. An employee may request and receive from the Company a copy of the test result report. Within 10 working days after receiving notice of a confirmed positive test result, the employee may submit information to the Company explaining the test results, and why the results do not constitute a violation of the Company's policy. D. Notification of Test Results and Record Keeping The Company shall notify an employee or job applicant of the results of the individual's drug test conducted under this policy. The employee must also be advised what drug was discovered. The Company shall retain in the employee's file information only indicating the following: 1. the employee submitted to a drug test. 2. the date of such test. 3. the location of such test. 4. the identity of the person or entity performing the test. 5. whether the confirmation test finding was "positive" or "negative." Sec. II - 16

17 E. Employee Compliance All employees are expected to comply fully and promptly with instructions issued under the authority of this program. Failure to do so can result in discipline, up to, and including discharge. Company policies, procedures, and substance abuse programs, are not intended to create or alter any existing, implied, or express contracts, written or verbal, between the Company and its employees, independent contractors, or job applicants. The Company reserves the right to alter any of its policies, procedures, or programs, at will, and without notice to its employees, independent contractors, or job applicants. The Company creates no promises with any of its policies, procedures, and programs, and remains free to change wages and all other working conditions without having to consult employees or anyone else and without anyone's agreement. The Company reserves the right to discipline or discharge any employee or independent contractor with or without good cause or to refuse to hire any job applicant as is consistent with existing law. If you are adding drug testing to your drug-free workplace policy, add paragraph # 1 and/or paragraph #2. An example of a pre-employment drug testing paragraph: 1. All job applicants at this company will undergo testing for the presence of illegal drugs as a condition of employment. Any applicant with a confirmed positive test result will be denied employment. An example of an employee testing paragraph: 2. This company has adopted testing practices to identify employees who use illegal drugs either on or off the job. It shall be a condition of employment for all employees to submit to drug testing under the following circumstances: When there is reasonable suspicion to believe that an employee is using illegal drugs. When employees are involved in on-the-job accidents where personal injury or damage to company property occurs. As part of a follow-up program to treatment for substance abuse. F. Legal Drugs Affirmative defense - Any employee who is alleged to have violated this policy shall have available as an affirmative defense, to be proven by the employee through clear and convincing evidence, that his/her use of a drug was prescribed by a licensed medical practitioner who is familiar with the employee's medical history and assigned duties and that the drug was used in accordance with company policies. The MRO may provide an 'opportunity for an employee to discuss a positive test result and clarify if a prescribed medication or other legal drug was involved. Although medical marijuana use is legal under state law, marijuana use is illegal under federal law and its use will not serve as a defense to this policy unless the employee has a legal prescription for an FDA approved cannabinoid medicine such as Marinol or Cesamet. Sec. II - 17

18 G. Discharge of an Employee An employee discharged on the basis of a confirmed positive drug test in accordance with this policy shall be considered to have been discharged for willful misconduct under State law. H. Refusal to Submit to a Drug-Test If an employee or a job applicant refuses to submit to drug testing administered in accordance with this policy, the company shall not be barred from discharging, disciplining or referring the employee to assessment or drug abuse rehabilitation or from refusing to hire the job applicant. An employee or job applicant required to submit to a drug test under this policy may be requested to sign a statement indicating that he/she has read and understands the drug testing policy and notice. An employee's or job applicant's refusal to sign such a statement shall not invalidate the results of any drug test, or bar the Company from administering the drug test or from taking action consistent with the terms of an applicable collective bargaining agreement or the Company's drug testing policy, or from refusing to hire the job applicant. I. Positive Drug Test Results Employees who are found to have a confirmed positive drug test are to be suspended immediately. Such employees may be discharged following a review of the facts by the Substance Abuse Program Administrator and management. J. Suspension If, at the sole discretion of management, an employee who has a confirmed positive drug test is not immediately discharged, he/she shall obtain a substance abuse evaluation at their own expense by licensed alcoholism or drug abuse counselor approved by the Company. The Company may consider this evaluation in determining further actions regarding the employee. K. After-Care Monitoring If an employee is sent to rehabilitation or counseling as a result of a substance abuse related work performance problem or a positive drug test, after returning to work, the employee must continue in any after-care program and may be subject to follow-up testing for not longer than 60 months following return to work. L. Negative Test Results Whenever an individual suspected of drug use passes the drug test (e.g. the results are negative for illegal drugs), the employee will receive the confidential memo shown below. A copy will be placed in the employee's personnel file. Sec. II 18

19 To Our Valued Employee The specimen you submitted on (date) was found to be free of detectable illegal drugs. We regret any inconvenience this test may have caused you, but we are confident that you understand the importance of maintaining a workplace where all employees can be reasonably assured that their safety is not being jeopardized by co-workers who are under the influence of illegal drugs. The Company thanks you for being drug-free. V. EMPLOYEE ASSISTANCE PROGRAM The Company does not have an in-house drug or alcohol rehabilitation program. Any employee voluntarily admitting to a drug or alcohol problem and requesting help in overcoming the problem should be put into contact with the Substance Abuse Program Administrator. Employees who have a positive drug test result, who are not immediately discharged, will also be referred to the Substance Abuse Program Administrator for further action. The Substance Abuse Program Administrator will assist the employee in understanding the medical benefit insurance plan and in enrolling in a drug or alcohol rehabilitation or counseling program. The Company will not bear any of the expense incurred by the employee in the process of rehabilitation or counseling other than that provided for in the company's medical plan. VI. CONFIDENTIALITY All actions taken under the authority of this program will strictly maintain the confidentiality of our employees. Information related to investigations, possible employee violations, medical tests, or drug tests will be communicated only on a strict "need to know" basis in accordance with the law and employee consent. Discussions with employees conducted under this policy will be conducted as privately as circumstances permit. VII. NOTICE TO EMPLOYEES AND JOB APPLICANTS OF THE POLICY The following measures will be implemented so that employees and job applicants will be aware of the Company's substance abuse policy. Copies of the policy will be posted on bulletin boards at all Company facilities and will be made part of the employee handbook. Managers and supervisors will inform all employees reporting to them of the effective date of the policy and supply each employee with a copy of the policy. Copies that managers are unable to distribute are to be returned to the Substance Abuse Program Administrator. All job applicants will be informed in writing that they must pass an initial drug test as part of their pre-employment physical examination. Failure to pass this test will bar the applicant from employment. Sec. II - 19

20 NOTICE TO EMPLOYEES THAT THE COMPANY IS REVISING SUBSTANCE ABUSE POLICIES AND PROCEDURES COMPANY LETTERHEAD Notice To All Employees The use and abuse of alcohol, tobacco and other drugs is a national problem that seriously affects every American. Substance abuse not only affects individual users and their families but also creates a dangerous work environment. In fact, the President of the United States has urged business and labor to take a leadership role in a nationwide effort to address this most serious issue. As you are aware, (Company Name) has always been committed to providing a safe work environment and fostering the well-being and health of our employees. Substance abuse jeopardizes this commitment, and undermines the capability of (Company Name) to produce quality products and services. Therefore, (Company Name) is currently reviewing its policies and procedures regarding substance abuse. This is being done with two basic objectives in mind: 1) employees deserve a work environment that is free from the effects of substance abuse and 2) this company has a responsibility to maintain a healthy and safe workplace. Attached please find a draft of the policy being considered. If you have any questions or concerns about the policy, you may contact You will receive written notice 30 days prior to this policy taking effect. If you think you may have a substance abuse problem, you may contact to address this problem. I believe it is important that we all work together to make (Company Name) a drug-free workplace and a safe, rewarding place to work. Sincerely, President (Company Name) Since policies can be considered to be contracts, employers should make it clear through a contract disclaimer that employer policies do not establish a contract with employees. Sec. II - 20

21 DISCLAIMER OF CONTRACT Company policies, procedures, and substance abuse programs, are not intended to create or alter any existing, implied, or express contracts, written or verbal, between the Company and its employees, independent contractors, or job applicants. The Company reserves the right to alter any of its policies, procedures, or programs, at will, and without notice to its employees, independent contractors, or job applicants. The Company creates no promises with any of its policies, procedures, and programs, and remains free to change wages and all other working conditions without having to consult employees or anyone else and without anyone's agreement. The Company reserves the right to discipline or discharge any employee or independent contractor with or without good cause or to refuse to hire any job applicant as is consistent with existing law. By signing below, I acknowledge that I have read and understand the above paragraph. Date Employee's Name cc: employee's file Sec. II - 21

22 SUBSTANCE ABUSE POLICY CONSENT FORM FOR COMPANIES IMPLEMENTING DRUG-TESTING SUBSTANCE ABUSE POLICY CONSENT FORM In accordance with the Company Substance Awareness Policy, the Company has implemented an applicant/employee drug-testing program. The Program will involve drug testing. These tests may be conducted by the Company, its subsidiary companies, or its agent(s) to determine that applicants and employees meet with the necessary qualifications for employment and/or to comply with safety requirements. I, (Print or Type Name) (Social Security Number) understand, authorize, and consent to the Company, its subsidiary companies or its agent(s), to conduct such drug testing procedures on me. I further understand, authorize, and consent that my employment status with the Company, or its subsidiary companies, may be contingent upon the successful completion of such drug testing requirements. My signature below indicates that I have read, understood, authorized and consented to the above statement and the company policy and hereby voluntarily participate in the Substance Abuse Program. Applicant/Employee Signature Date Witness Signature Date Refusal to sign statement Yes No Refusal to sign statement, but participated in test Yes No cc: Employee File An employee's failure or refusal to sign a written consent to be tested may not prohibit an employer from taking action based on a positive test or a refusal to take a test. Sec. II - 22

23 SAMPLE SUBSTANCE ABUSE POLICY STATEMENT COMPANY LETTERHEAD SUBSTANCE ABUSE POLICY STATEMENT (Company Name) is committed to providing a safe work environment and to fostering the well-being and health of its employees. That commitment is jeopardized when any (Company Name) employee illegally uses drugs on the job, comes to work under the influence, or possesses, distributes or sells drugs in the workplace. Therefore, (Company Name) has established the following policy: 1. It is a violation of company policy for any employee to possess, sell, trade or offer for sale illegal drugs or otherwise engage in the illegal use of drugs on the job. 2. It is a violation of company policy for anyone to report to work under the influence of illegal drugs or alcohol. 3. It is a violation of the company policy for anyone to use prescription drugs illegally. (However, nothing in this policy precludes the appropriate use of legally prescribed medications.) 4. Violations of this policy are subject to disciplinary action up to and including termination. Although the use of medical marijuana is legal under state law, its use is illegal under federal law and such use is forbidden under this policy. The state law shall not be construed to require an employer to accommodate the medical use of marijuana in any workplace. It is the responsibility of the company's supervisors to counsel employees whenever they see changes in performance or behavior that suggest an employee has a drug problem. Although it is not the supervisor's job to diagnose personal problems, the supervisor should encourage such employees to seek help and advise them about available resources for getting help. Everyone shares responsibility for maintaining a safe work environment and co-workers should encourage anyone who may have a drug problem to seek help. The goal of this policy is to balance our respect for individuals with the need to maintain a safe, productive and drug-free environment. The intent of this policy is to offer a helping hand to those who need it, while sending a clear message that the illegal use of drugs is incompatible with employment at (Company Name). Sec. II - 23

24 SUBSTANCE AWARENESS POLICY CONSENT FORM FOR COMPANIES THAT ARE NOT DRUG-TESTING SUBSTANCE AWARENESS POLICY CONSENT FORM I, (Print or Type Name) (Social Security Number) My signature below indicates that I have read, understood, authorized and consented to the company policy and hereby voluntarily participate in the Substance Awareness Program. Applicant/Employee Signature Date Witness Signature Date Refusal to sign statement Yes No cc: Employee File Sec. II - 24

25 NOTICE TO EMPLOYEES REGARDING IMPLEMENTATION OF DRUG-TESTING PROCEDURES Notice to Employees Regarding Implementation of Drug-Testing Procedures Dear Employee: (Company Name) has established a substance abuse/drug testing program because we believe this is the best way to protect our employees, our customers, and the public. Our business is built on our reputation. We want to keep a good reputation, and we want a healthy and safe workforce. (Company Name) drug-free workplace policy covers all employees. We want to keep drug use out of the work place. Employees are not to be under the influence of drugs or alcohol while working. Our drug testing program covers employees and job applicants. All applicants will be tested for illegal drugs prior to being hired. All employees may be subject to testing for reasonable cause i.e., when there is some evidence of drug or alcohol use. All employees may also be subject to random selection, as well as, post-accident and return to duty testing. (Company Name) testing program is limited to five drugs at this time. The five drugs are: Marijuana Cocaine Amphetamines Phencyclidine Opiates For confirmation testing we will use laboratories certified to conduct drug testing by the U.S. Department of Health and Human Services (DHHS). These laboratories have been rigorously inspected and tested and meet the highest standards for analytical competence. The scientific techniques used in drug testing are virtually error-free when properly applied. We will use an immunoassay test as the initial screen. When testing employees, if any prohibited drug registers positive on the immunoassay screen, the test result will be confirmed in a laboratory by using a combined instrument technique called gas chromatography/mass spectrometry (GC/MS). The combination of immunoassay screening with confirmation by gas chromatography/mass spectrometry (GC/MS) makes the possibility of a false positive (identification of a prohibited drug which is not actually present in the test sample) extremely remote. Although the use of medical marijuana is legal under state law, its use is illegal under federal law and such use is forbidden under this policy. The state law shall not be construed to require an employer to accommodate the medical use of marijuana in any workplace. Sec. II - 25