Policy #1114
Mandatory Drug and Alcohol Testing for CDL Holders

Current Version: January, 2008
Responsible Officer: Director, Human Resources

1. PURPOSE

In order to promote highway safety and in accordance with the Omnibus Transportation Employee Testing Act of 1991 and U.S. DOT Rule 49 Parts 40 and 382, James Madison University will conduct mandatory drug and alcohol testing of all university employees who are required to possess a commercial driver's license (CDL).

2. AUTHORITY

This policy is written in keeping with the Virginia Department of Human Resources Policy 1.05, Alcohol and Other Drugs.

3. DEFINITIONS

Alcohol:
Any product as defined in "The Alcoholic Beverage Control Act," section 4-1-100 of the Code of Virginia, as amended.

Adulterated Specimen:
A specimen that contains a substance that is not expected to be present in human urine, or contains a substance expected to be present but is at a concentration so high that it is not consistent with human urine.

Commercial Driver's License:
Any of three types of commercial driver's licenses:

Class A: Any combination of vehicles with a gross vehicle weight rating (GVWR) of 26,001 or more pounds provided the GVWR of the vehicle(s) being towed is in excess of 10,000 pounds.

Class B: Any single vehicle with a GVWR of 26,001 or more pounds, or any such vehicle towing a vehicle not in excess of 10,000 pounds GVWR.

Class C: Any single vehicle or combination of vehicles that does not meet the definition of Class A or Class B, but is either designed to transport 16 or more passengers, including the driver, or is placarded for hazardous materials.

Contract Testing Facility (Contractor):
A medical facility including its laboratory, certified for alcohol and drug testing by the U.S. Department of Health and Human Services.

Covered Employees
Employees who are required to possess a commercial driver's license and the mandatory testing for alcohol and illegal drug use is a condition of their employment.

Illegal Drug:
Any controlled substance included in Schedules I through V of the "Drug Control Act," Title 54.l, Chapter 34 of the Code of Virginia, as amended, updated or republished, except a controlled substance included in Schedules II through V and used by the employee whose conduct is in question pursuant to a valid prescription for medical purposes filled in the United States.

Medical Review Officer (MRO):
A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results.

Substance Abuse Professional (SAP):
A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

4. APPLICABILITY
This policy is applicable to all employees of the university, whether classified or non-classified, full-time or part-time, salaried or hourly who are required to have a commercial driver’s license for their jobs.

5.POLICY

5.1 General
All university employees have a responsibility to ensure that their duties are not impaired by the use of drugs or alcohol. Further, employees who operate State-owned vehicles and equipment, and are required to hold a CDL, are subject to a higher degree of regulation than other drivers. They will keep their supervisors informed as to any prescription medications they are using which may affect their work. To ensure compliance, JMU will conduct a program to identify covered employees who test positive for alcohol and illegal drugs. Employees testing positive will be immediately removed from driving duties and charged with a Group III violation of the State's Standards of Conduct, which alone may warrant termination. This procedure is applicable to all current and future JMU employees. Attachment 'A' is the advisory memorandum that will be sent to all persons employed in, and being considered for, assignment to covered positions.

5.2 Testing Conditions
Covered employees will be designated for alcohol and drug testing under the following conditions. A refusal to take the tests, the discovery of an adulterated specimen or the tampering of the sample will be considered a Group III violation of the Standards of Conduct and may result in the termination of employment:

• Pre-Employment: As a condition of employment, individuals applying for covered positions will be tested. Applicants will be advised of the requirement and the procedure at the time an offer for employment is made (verbally and in writing as part of the offer letter- consistent for anyone on campus required to posses a CDL for their jobs). A positive test on the applicants will result in JMU rescinding the offer of employment.

• Reasonable Suspicion: Covered employees will be tested whenever the individual's behavior or appearance causes the supervisor to question the employee's ability to perform his/her CDL duties safely. The elements of the constructive confrontation by a supervisor are to identify and confront the individual, to confirm the behavior/appearance/odor/speech, and to document the incident by completing the "Behavior/Incident Documentation" form. If possible, the confrontation should be made in person by the supervisor, with a witness to the event.

• Random: Covered employees will be tested whenever the random selection process designates the employee for testing. Employees being randomly-tested will not routinely be relieved of CDL duties while the results are being analyzed (See 6.2 below for details).

• Post Accident: Covered employees will be tested any time they are involved in an on-the-job commercial vehicle accident resulting in a citation for moving violations arising from an accident that requires: (1) a vehicle to be towed, (2) an injury requiring immediate medical attention away from the scene, or (3) resulting in a fatality. The alcohol breathalyzer test must be administered within two hours and the controlled substances test must be conducted within 32 hours of the accident. Covered employees are prohibited from using alcohol or controlled substances following an accident until after they have been tested. Further, the failure to report a vehicle accident is a violation of the Standards of Conduct. If the accident results in the death of the employee, blood/urine samples will be tested for the presence of drugs/alcohol.

• Other Testing: Covered employees will be tested when any of the following events have occurred: (1) after completing a drug and alcohol rehabilitation program, (2) before being allowed to return to work and perform CDL duties following a positive test, or (3) after having refused to be tested. After returning to work, these covered employees will be tested randomly at least six times during the next 12 months. A refusal to be re-tested may result in termination of employment. Further, employees in this re-testing group will also continue to be part of the random testing pool.

5.3 Supervisor Responsibilities
Supervisors are responsible for evaluating the fitness of their covered employees to perform their duties. In the event covered employees do not appear able to perform their CDL functions safely, supervisors must relieve these employees of their duties, document the circumstances, and notify HR or the departmental designee so that those individuals may be tested. In the event HR or the departmental designee is not available to arrange the tests, supervisors are authorized to work directly with the contract medical facility.

5.4 Contractors and Vendors
All vendors and contractors providing goods and service for the university shall show compliance to the aforementioned regulations. Faculty and staff who initiate or solicit the services of vendors and contractors should ensure that proof of vendor/contractor compliance is received before entering in to any contractual arrangement including the issuing and authorization of an official purchase order.

6. PROCEDURES

6.1 Contract Testing Facility
A contract medical facility will conduct the tests, analyze the results, and counsel covered employees regarding the outcome of the test(s). Only personnel trained in the use of equipment and taking specimens will be involved in the testing process. Further, JMU will rely on the Contractor and its Medical Review Officer (MRO) to provide appropriate documented data and testimony in the event the test results in an adverse employment action or a grievance.

6.2 Testing Process

• Random Selection. The Contractor will conduct a 100% random selection each month.Some employees may be selected more than once. After selection, HR or the departmental designee will notify the employee that s/he needs to go to the contract medical facility as soon as feasible. If an employee is not readily available, s/he will be notified and tested upon return to the work site. Waivers are not permitted.

• Selective Testing. Selective testing occurs: (1) pre-employment, (2) for reasonable suspicion, or (3) post accident. In cases where covered employees are designated for selective testing, the supervisor will request HR or the departmental designee to make the appointment. The supervisor or designee will then transport the individual to the Contractor as soon as feasible. Applicants completing pre-employment testing will transport themselves. Employees who are being tested for these reasons will not be restored to duty or the applicant pool until after the MRO determines that the test results are negative.

• Alcohol Test. The Contractor will test the breath for the presence of alcohol. In the event alcohol level does not exceed .02, the results will be recorded as negative and the employee will return to his/her normal duties. If the test results indicate the alcohol level to be between .02 and .04, covered personnel will be placed on leave without pay (LWOP) for the remainder of the day and will be re-tested the next day or prior to performing CDL duties. If the alcohol level exceeds .04, covered personnel will be suspended from work indefinitely (not less than 30 days) and applicants will not be further considered for the position unless the MRO so recommends (See 6.3). HR or the departmental designee and the Department Head will be notified of the results of the test.

• Drug Test. A split urine sample will be taken from covered employees and analyzed for the presence of marijuana, cocaine, opiates, phencyclidine, and amphetamines. Any trace of an illegal substance will be considered a positive result. The MRO will determine whether or not the results indicate further testing or counseling. When a covered employee has been referred to the Contractor for reasonable suspicion, the MRO will also consider the supervisor's observations. The Contractor is responsible for safeguarding the split sample for a possible second analysis.

6.3 MRO Procedures for Positive Test Results
The MRO will have a confidential discussion (in person or by telephone) with covered personnel as soon as feasible whenever there are positive results to the tests. In the case of alcohol, a positive result is anything above the .02 level. The MRO will determine if there is a legitimate explanation for any deviation from the normal. Covered employees will have 72 hours to decide if s/he would like the split urine specimen sent to another laboratory (It also must be certified for alcohol and drug testing by the U.S. Department of Health and Human Services), to have the split examined in the same laboratory, or take no action in the matter. The employing department will pay for the second analysis only if it results in a negative presence of alcohol or illegal substance. At the conclusion of the counseling, the MRO will telephone HR or the departmental designee and send a confidential report to the HR Director or the HR Director’s designee.

6.4 Training
Supervisors will be given a minimum of 60 minutes of training on controlled substance abuse and 60 minutes on alcohol misuse. This training will include information on how alcohol and drugs affect work performance, the alcohol and drug testing process, employee assistance programs, and possible corrective action in the event of a positive test. Supervisors will also be given training on how to recognize, confront, and document incidents possibly caused by substance abuse.

Employees will be given a minimum of 60 minutes of training on controlled substance abuse and alcohol misuse, how alcohol and drugs affect work performance, the alcohol and drug testing process, employee assistance programs, and possible corrective action in the event of a positive test.

6.5 Discipline and Corrective Action

6.5.1 Corrective Action.
Covered employees testing positive for drugs or above the .04 alcohol level will be immediately removed from driving duties and will be charged with a Group III violation of the State's Standards of Conduct, which alone may warrant termination. (As a minimum corrective action, the aforementioned employee will be suspended without pay for 30 days and referred to a substance abuse professional (SAP)). The employee will be expected to satisfactorily complete the prescribed treatment as a condition of his/her return to work. Payment for the treatment is the responsibility of the employee.

6.5.2 Other Disciplinary Action

• Employees who commit a first offense under this policy, and who already have any other active written notice, will normally be terminated.

• After being returned to work from rehabilitation treatment, any subsequent written notice will also normally result in termination.

• The above guidelines notwithstanding, university management reserves the right to apply the full range of disciplinary actions under the Standards of Conduct, taking into account mitigating circumstances.

6.6 Return-to-Duty Re-Evaluation
Prior to being reassigned to a CDL position, covered employees must undergo substance abuse testing and counseling by the same SAP. If returned to duty, the employee will be subject to a minimum of six unannounced follow-up tests over the next twelve months of active service with the possibility of unannounced testing for up to 60 months (as prescribed by the SAP).

6.7 Recordkeeping
All records and correspondence for covered employees must be maintained and available during the length of employment plus five years. The material will consist of the notification memorandum, training periods, and tests conducted for any reason. In addition, HR or the departmental designee will maintain a confidential file concerning any positive alcohol and drug tests, moving vehicle accidents, communications with the MRO, related corrective actions, and reports of drug/alcohol tests for reasonable suspicion. (All recordkeeping that is required by law and listed in U.S. DOT Rule 49 Part 40 may be kept by the Contractor as long as it can provide the information within two business days of an official request by DOT officials. The information will be released on a need-to-know basis only.)

7. RESPONSIBILITY

The Director of Human Resources is responsible for the consistent application of this policy. The Director of Human Resources, as well as vice presidents, directors, and supervisors are to ensure that covered employees are informed of this policy and any subsequent changes. Questions related to the application of this policy should be directed to Human Resources.

In addition, directors are responsible for their department’s prompt, effective adherence to this policy.

Supervisors are responsible for evaluating the fitness of their covered employees to perform their duties and taking corrective action when appropriate.

8. SANCTIONS

Sanctions will be commensurate with the severity and/or frequency of the offense and may include termination of employment.

9. EXCLUSIONS

This policy does not apply to university employees who are not required to possess a commercial driver’s license (CDL).

10. INTERPRETATION

The authority to interpret this policy rests with the President, and is generally delegated to the Director of Human Resources.

Approved by the President: January, 2008

Index Terms

Alcohol
Commercial Driver's License
Contract Testing Facility (Contractor)
Covered Employees
Illegal Drug
Medical Review Officer (MRO)
Substance Abuse Professional (SAP)

Appendices

Attachment A