Substance Regulations

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Article 32 Employee Alcohol and Drug Testing

Section 32.1. Statement of Policy.

It is the policy of the City of Columbus that the public has the right to expect persons employed by the City in its Fire Division will be free from the effects of drugs and alcohol. The City, as the employer, has the right to expect its employees to report for work fit and able for duty and to set a positive example for the community. The purposes of this policy shall be achieved in such manner as not to violate any established constitutional rights of the employees of the Fire Division.

Section 32.2. Testing Information.

All employees shall be informed of the Fire Division drug and alcohol testing policy. The City shall inform employees as to how the tests are conducted, what the test can determine, and the consequences of testing positive for drug use. All newly hired employees will be provided with this information on or about their initial date of hire. No employee shall be tested before they have been provided a reasonable opportunity to obtain this information.

Section 32.3. Prohibitions.

Employees shall be prohibited from: (a) Reporting to work or working under the influence of alcohol; (b) Consuming alcohol at any time during the workday or the four (4) hours prior to the beginning of the workday, or consuming or possessing alcohol anywhere on the employees personal vehicle While engaged in City business (provided that employees who decline overtime opportunity due to the prohibition against consuming alcohol four (4) hours prior to the start of Work shall not be penalized in terms of their position on the call out list or disciplined for declining a call out for this reason) Possessing using selling purchasing manufacturing dispensing or delivering any illegal drug at any time and at any place Abusing any prescription drug; Failing to confer with their physicians when prescribed any medications and immediately reporting to their supervisor any restrictions imposed by their physicians. any City premises or job sites, including City buildings, properties, vehicles and

Section 32.4. Drug and Alcohol Testing Permitted.

Reasonable Suspicion. Where the City has reasonable suspicion to believe that: (a) an employee is being affected by the use of alcohol, or consuming or possessing alcohol in violation of this Article; or (b) is abusing prescription drugs; or (c) is possessing or using illegal drugs, or (d) an employee has five (5) or more lates or absences in a rolling year, the City shall have the right to require the employee to submit to alcohol and drug testing as set forth in this Contract. Employees subject to reasonable suspicion testing will receive a form no later than the time of testing. The form Will explain the rationale for the testing. The form shall set forth the facts and inferences from such facts which form the basis of the order to test. Employees shall not be subjected to random medical testing involving blood or urine analysis or other similar or related tests for the purpose of discovering possible drug or alcohol abuse, except as specifically provided for in this Article 32. Random Testing.

During the workday, employees are subject to random testing for drugs or alcohol. The annual number of such random tests shall total approximately twenty-five (25%) of the number of employees covered by this Contract at the beginning of each calendar pear. The number of tests scheduled in a calendar pear Will be divided equally between alcohol and drug tests, unless otherwise agreed to bp the parties. Such tests shall be spread reasonably throughout the year. The City shall contract with an outside contractor (agreeable to the Union) who shall select employees for random testing using a scientifically valid method and lists of employees supplied by the City each month. Employees notified of their selection for random testing shall proceed immediately to the collection site. Employees who are on leave, vacation, or already absent at the time of their selection will be excused but remain subject to future random testing. (C) Pre-Employment Test. Nothing in this contract shall limit the right of the City to conduct any tests it may deem appropriate for persons seeking employment prior to their date of hire.

Section 32.5. Order to Submit to Testing.

An employee’s refusal or failure, when ordered, to promptly submit to a test permitted by and properly ordered under the provisions of this Article shall subject the employee to discipline, but the employee’s taking of the test shall not be construed as a waiver of any objection or rights that he may possess. The principle of “obey and then grieve” shall apply in the event of a dispute over whether a test is permitted and properly ordered under this Article.

Section 32.6. Test to be Conducted.

In conducting the testing authorized by this Contract, the City shall comply with the following: (a) The lab performing drug tests shall be federally certified to do drug testing and agreed to by the Union and the City. The facility collecting and testing breath specimens shall hold all legally necessary licenses and be agreed to by the Union. (b) Collection of breath and urine samples shall be conducted in a manner which is consistent with HHS guidelines. Strict chain of custody procedures which are consistent with HHS guidelines must be followed for all samples. The Union and the City agree that the security of the specimens is absolutely necessary. Therefore, the City agrees that if the chain of custody of a sample is broken in any way, any positive test shall be invalid and may not be used for any purpose (unless the City demonstrates that the break did not affect the reliability or accuracy of the results). (c) Urine specimens shall be collected in private, except in the circumstances described in 49 C.F.R. §40.25(e)(2). (d) A split urine sample shall be collected in all cases of drug testing for an independent analysis in the event of a positive test result. All urine samples must be stored and preserved in a manner that conforms to HHS guidelines. it sample is thought to be adulterated at the time of testing, the employee will be offered the opportunity to provide a second sample under observation without privacy restraints. If that is not possible, or if the employee declines such opportunity, and the original sample (or the second sample if given) is proven to be adulterated, such adulteration will be considered a positive test and subject to

Section 32.8.

(e) Employees have the right for a Union representative to be present during the collection of samples (and any pre-collection interviews of employees intended to determine whether reasonable suspicion exists), but the exercise of such right shall not unreasonably delay the collection of the sample. For alcohol tests, “unreasonable delay” means twenty (20) minutes or more; for drug tests, “unreasonable delay” means two (2) hours. Prior to submitting a urine or breath specimen, the employee will be required to sign a consent-refusal form and will be subject to discipline for refusing to sign such a form; provided, an employee’s refusal to consent is not a waiver of any objection to the test the employee would otherwise have. The City’s drug testing lab will confirm any urine sample that tests positive in initial screening for drugs by testing a portion of the same sample by gas chromatography/mass spectrometry (GC/MS). All positive confirmed samples and related paperwork must be retained for at least twelve (12) months or (provided written notice is given the lab by the City or Union, before the expiration of the twelve (12)-month period) for the duration of any grievance, disciplinary action or legal proceeding, whichever is longer. The City will provide employees who test positive for alcohol or drugs with an opportunity to have the split urine or blood specimen tested by a clinical laboratory or hospital facility of the employee’s choosing, at the employee’s own expense, providing the employee notifies the City within seventy-two (72) hours of receiving the positive results and provided further that the laboratory or clinic and the testing procedure, including chain of custody, meets or exceeds the standards established in this Contract. The City will require that its drug testing lab and breath testing facility report that a specimen is positive only if both the initial screening and confirmation test are positive. Drug test results shall be evaluated by the Medical Review Physician in a manner to ensure that an employee’s legal drug use and diet are properly taken into account when evaluating the test results. For the purpose of this Article, a positive drug test result means the presence of drugs and/or their metabolites in an employee that equals or exceeds the levels set forth in Section 32.7 Below. The parties agree that should any information concerning such testing or the results thereof be obtained by the City inconsistent with the understandings expressed herein (e. g., billings for testing that reveal the nature or number of tests administered), the City will not use such information in any manner or form adverse to the employee’s interests. With regard to alcohol testing, the vendor contracted by the City shall assure that only federally certified individuals using certified equipment shall conduct initial tests. An initial positive alcohol level of .04 grams per 2l0L. of breath shall be considered positive for purposes of authorizing the conduct of the confirming alcohol test. If initial screen results are negative, i.e., below the positive level, testing shall be discontinued, all samples destroyed and records of the testing expunged from the employee’s personnel file. Only employees with screen test results that are positive on the initial screen shall be subject to confirmation testing for alcohol. With respect to confirmation testing, a positive alcohol level shall be .04 grams per 100 ml of blood. If confirmatory testing results are negative, i.e., below the positive level, all records of the testing shall be expunged from the employee’s personnel file.

Section 32.7.

By the City In connection with the testing and the results (provided the employee first pays the City s copying costs and the material is not privileged) Insure that no employee IS the sub] ect of any adverse employment action because of the test except emergency temporary assignments or relief of duty during the pendency of any testing procedure. Drug Testing Standards HHS Standards (j) Provide each employee tested with a copy of all information and reports received

(A) Screening Test Standards. The lab shall use an immunoassay which meets the requirements of the Food and Drug Administration for commercial distribution.

The following initial immunoassay test cutoff levels shall be used when screening urine specimens to determine Whether they are negative for the eight (8) drugs or classes of drugs:

Substance
Initial Test Level

Marijuana metabolites

50ng/ml

Cocaine metabolites

3 O0ng/ml

Opiate metabolites

2000ng/ml

Phencyclidine

25ng/ml

Amphetamines

l 0O()ng/ml

Methaqualone

200ng/ml

Benzodiazepines

300ng/mi

Barbiturates

/.200ng/ml

OxyContin

l 00ng/ ml

Ecstasy

500ng/ml

If test is specific for free morphine, the initial testing level is 25mg/ml (These numbers may be revised by the City to remain consistent with HHS guidelines.) (B) Confirmatory Test Standards. All urine specimens identified as positive on the initial screening test shall be confirmed using GC/MS techniques at the cutoff levels listed below. All confirmations shall be by quantitative analysis.

Substance Confirmatory Test Level
Marijuana metabolites 15mg/ml
Cocaine metabolites 150ng/ml
Opiate metabolites 2000ng/ml
Codeine /.30()ng/ml
Phencyclidine /.25ng/ml
Amphetamines 500ng/ml
Methamphetamine 5 O0ng/ml
Methaqualone 2 O0ng/ml
Benzodiazepines 3 O0ng/ml
Barbiturates 2 0()ng/ml
OxyContin 5 Ong/ ml
Ecstasy 300ng/ml

These numbers may be revised by the City to remain consistent with HHS guidelines. (C) Testing for Other Prescription Drugs. Any tests for prescription drugs not listed above shall use the screening test cut-off levels and the confirmatory GC/MS test cut-off levels for such drugs established by the testing laboratory selected by the City in accordance with the standards established by this Contract or HHS standards, if any. (D) Medical Review Physician “MRP”. The Medical Review Physician shall be chosen and agreed upon between the Union and the Employer and must be a licensed physician who is familiar with the characteristics of the tests used (sensitivity, specificity, and predictive value) and the facilities running the tests. The role of the MRP will be to review and interpret positive drug test results. He shall examine ultimate medical explanations for any positive test results. This may include conducting a medical interview with the affected employee, review of the employee’s medical history, review of the chain of custody and review of any other relevant biomedical factors. The MRP must review all medical records made available by the testing employee when a confirmed positive test could have resulted from legally prescribed medication. An employee shall be expected to cooperate promptly with the MRP. The MRP may verify a test as positive without interviewing the affected employee if more than five (5) days elapse after the MRP first attempts to telephone the employee.

Section 32.8. Disciplinary Action.

The City will not discharge an employee who tests positive a first time, but may suspend such employee. (The length of such suspension shall be determined on a case-by-case basis but shall not exceed one hundred twenty gl2(); hours for three (3) platoon employees and eighty QSO; hours for forty g40; hour employees unless the employee has failed before the end of that period to provide the City with the results of an evaluation.) This limitation on discipline shall not limit the City in imposing discipline, up to and including termination, for gross misconduct which may be coincident with an employee’s improper drug or alcohol use. Employees who test positive for the first time will be given the following instructions. In order to avoid the penalty of termination, the employee (who tests positive the first time) must: (a) Cooperate in an evaluation for chemical dependency by a Certified Substance Abuse Professional as designated by the City and provide the Drug and Alcohol Coordinator with a copy of the evaluation; (b) Participate in and complete a substance abuse education program. Where treatment is recommended by the Certified Substance Abuse Professional, an educational program may be part of the process; (c) Discontinue (and not resume) the use of illegal drugs and misuse of alcohol, and/or misuse of prescription drugs; (d) Agree to authorize all persons involved in evaluating, counseling, diagnosing and treating the employee to disclose to the Fire Chief. Public Safety Director, and Drug and Alcohol Coordinator, the employee’s evaluation, progress, cooperation, drug and alcohol use and successful completion or non-completion of counseling and treatment, and any threat to property or safety involved in the employee performing job duties or returning to active duty; (e) Agree to submit to follow-up testing, at times determined by the City, up to eight (8) times per twelve (l2) month period for thirty-six (3 6) months, (i.e., the thirty-six (3 6) month period beginning after the employee’s return from suspension); and (f) Agree that during or within the seven (7) years following this last chance period in (e), above, if the employee tests positive again or otherwise violates this Article the employee may properly be terminated. Employees who do not agree to act or who do not act in accordance with the foregoing shall be subject to discipline, up to and including discharge. This Article shall not be construed as an obligation on the part of the City to retain an employee on active status throughout the period of rehabilitation if it is appropriately determined that the employee’s current use of alcohol or drugs prevents such individual from performing his duties or whose continuance on active status would constitute a direct threat to the property and safety of others. Employees who test positive a second time within the seven (7) year period referenced in subparagraph (f) above are subject to discharge. Employees who refuse to cooperate in a permitted test are subject to discharge.

Section 32.9. Right of Appeal.

The employee has the right to challenge the results of the drug or alcohol tests and any discipline imposed in the same manner that any other employer action under the terms of this Contract is grieve-able. Any evidence concerning test results which is obtained in violation of the standards contained in this Article shall not be admissible in any disciplinary proceeding involving the employee, unless the City establishes that deviation from such standards has not affected the reliability, accuracy, or verification of the test results.

Section 32.10. Employee Assistance Program.

The City shall provide an Employee Assistance Program (EAP). Employees are encouraged to seek voluntary assistance with the City’s designated EAP. The City EAP shall follow all applicable confidentiality laws and shall receive information regarding any employee’s participation only in accordance with such confidentiality laws.

Section 32.11. Voluntary Request for Assistance.

An employee may voluntarily enter rehabilitation without a requirement of prior testing. Any employee who does so shall not be disciplined, but the employee must: (a) Agree to cooperate in and successfully complete appropriate treatment as determined by the Substance Abuse Professional(s) or physician(s) involved; (b) Discontinue use of illegal drugs or misuse of alcohol; (c) Agree to authorize persons involved in counseling, diagnosing and treating the employee to disclose to the City’s personnel as specified in

Section 32.12.

The employee’s progress, cooperation, drug and alcohol use, completion or non-completion of counseling and treatment and any threat to property or safety perceived in connection with the employee’s continued performance of his or her job duties; (d) Complete any course of counseling or treatment prescribed, including an “after-care” group for a period of up to twelve (12) months; and, (e) Agree to submit to random testing up to eight (8) times per twelve (12) month period for the following thirty-six (36) months, (i.e., the thirty-six (36) months following entry into treatment). Employees who do not agree to act or who do not act in accordance with the foregoing shall be subject to discipline, up to and including discharge. This Article shall not be construed as an obligation on the part of the City to retain an employee on active status throughout the period of rehabilitation if it is appropriately determined that the employee’s current use of alcohol or drugs prevents such individual from safely performing his duties or whose continuance on active status would constitute a direct threat to property or safety.

Section 32.12. Treatment.

Treatment and rehabilitation costs arising out of the employee’s first use of such services shall be paid for by the employee’s insurance program, subject to any deductible, co-payment and policy limits under the employee’s insurance program. Employees will be allowed to use their accrued and earned leave (vacation, sick leave, or comp time) or take an unpaid leave of absence for the necessary time off involved in a rehabilitation program. Other than as specified in this Section or required by law, the City shall have no obligation to pay for or insure treatment or rehabilitation.

Section 32.13. Drug Assignment after Treatment.

Once an employee successfully completes rehabilitation, he shall be returned to his regular duty assignment (provided the employee is then in compliance with Section 32.8 or 32.10, Whichever applies). Once treatment and any follow-up care is completed, and three (3) years have passed (Without any positives or policy violations) since the employee returned from a suspension after an initial positive or voluntarily requested assistance under Section 32.10, the employee’s personnel file shall be purged of any reference to his drug or alcohol problem, and all such records shall be stored by the City in a completely separate medical file. The only subsequent use that may be made of such records shall be in the event of a subsequent positive test result or voluntary request for assistance or Where such records are relevant to a charge, claim, grievance or other legal proceeding initiated against the City or its agents.

Section 32.14. Union Held Harmless.

This drug and alcohol testing program was initiated at the request of the City. The City assumes sole responsibility for the administration of this policy and shall be solely liable for any legal obligations and costs arising out of the provisions and/or application of this collective bargaining agreement relating to drug and alcohol testing. The Union shall be held harmless for the violation or alleged violation of any employee rights arising from the City’s administration of the drug and alcohol testing program.

Section 32.15.

Changes in Testing Procedures. The parties recognize that during the life of this Contract there may be improvements in the technology of testing procedures which provide more accurate testing. In that event, the parties Will bargain in good faith Whether to amend this procedure to include such improvements. If the parties are unable to agree, the procedure shall remain unchanged.

Section 32.16. Conflict With Other Laws.

This Article is in no way intended to supersede or waive any constitutional rights that the employee may be entitled to under the Federal or State constitutions.

Section 32.17. Definitions.

“Illegal Drugs” means controlled substances listed in 21 C.F.R. Part 1308 that are not being used under the supervision of a licensed health care professional, or otherwise in accordance with federal law. “Abuse of Prescription Drugs” means (i) to intentionally use a prescribed drug contrary to the instructions of the doctor or dentist who prescribed it or the instructions that accompany the drug, (ii) to obtain prescription drugs under false pretenses, or (iii) to obtain multiple prescriptions for the same or similar drug Without full disclosure to the prescribing health care professional. “Misuse of Alcohol” means to consume ethyl, methyl or isopropyl alcohol in violation of this Article, any applicable last chance agreement or the Written recommendations of any person or program treating or counseling the employee for chemical dependency.

“Refuse to Cooperate” means (i) to obstruct the specimen collection process, (ii) to attempt to or to tamper with the collection or testing process, or (iii) to fail to provide breath and urine specimens adequate for testing when directed to do so, Without promptly establishing a medical basis for the failure to provide such specimens. “Under the Influence of Alcohol” means an alcohol concentration of .04 or more or actions, appearance, speech or body odors which cause two supervisors to conclude that an employee is unable to Work safely or effectively because of alcohol consumption.