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Policy 1114
Mandatory Drug and Alcohol Testing for Commercial Driver's License Holders

Date of Current Revision: June 2015
Primary Responsible Officer: Director of Human Resources

1. PURPOSE

In order to promote campus and highway safety, the university will conduct mandatory drug and alcohol testing of all university employees who possess commercial driver's licenses and use them in performance of their university jobs.

2. AUTHORITY

The Board of Visitors has been authorized by the Commonwealth of Virginia to govern James Madison University. See Code of Virginia section 23-164.6; 23-9.2:3. The board has delegated the authority to manage the university to the president.

STATE OR FEDERAL STATUTE AND/OR REGULATIONS

This policy is written in keeping with the Virginia Department of Human Resources Policy 1.05-Alcohol and Other Drugs.  It also complies with the requirements of the Omnibus Transportation Employee Testing Act of 1991 (49 U.S.C.S. § 5331), the U.S. Department of Transportation’s Office of Drug & Alcohol Policy & Compliance Rule (49 CFR Part 40), and The Federal Motor Carrier Safety Administration's rule on testing for controlled substances and alcohol use (49 CFR 382).

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 at a concentration so high that it is not consistent with human urine.

Commercial Driver's License (CDL)
Any of three types of commercial driver's licenses required to operate vehicles as described:
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
A medical facility, including its laboratory, certified for alcohol and drug testing by the U.S. Department of Health and Human Services.

Covered Employee
An employee who possesses a CDL and uses it in performance of his or her university job.

Covered Position
A position, job or assignment in which an employee may be required or allowed to operate state-owned vehicles or equipment requiring a valid CDL.

Illegal Drug
Any controlled substance included in Schedules I through VI 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 VI 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
A person who evaluates employees who have violated a Department of Transportation drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

4. APPLICABILITY

This policy is applicable to all university employees who possess valid CDLs and use them in performance of 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. See Policy 1110-Alcohol and Other Drugs. Further, employees who hold CDLs and use them to operate state-owned vehicles and equipment or other vehicles requiring a valid 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 with this policy, 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 all CDL-related and other driving duties. This procedure is applicable to all current and future JMU employees. An advisory memorandum will be given to all persons employed in, and being considered for, assignment to covered positions. Sanctions may vary according to the employee’s classification and may result in termination.

5.2 Testing Conditions
Covered employees will be designated for alcohol and drug testing under the conditions listed below. A refusal to take the tests, the discovery of an adulterated specimen, or tampering with the sample 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 policy 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 who possesses a valid CDL and may use it in the performance of the job). A positive test result from an applicant 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 related 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. 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 related 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. Employees are required to report accidents to their supervisor. Failure to report a vehicle accident will result in disciplinary action. 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 related 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 of covered employees 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 related functions safely, supervisors must relieve these employees of their duties, document the circumstances, and notify Human Resources or the departmental designee so that those individuals may be tested. In the event Human Resources or the departmental designee is not available to arrange the tests, supervisors are authorized to work directly with the Contract Medical Facility.

Supervisors of covered employees are also required to participate in the drug and alcohol program overview and substance abuse training provided by the university.

5.4 Contractors and Vendors
All vendors and contractors providing goods and service for the university shall be able to show compliance to the aforementioned regulations upon request. Contracting authorities 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 Contract Medical Facility 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 Contract Medical Facility will conduct a random selection of covered employees each month. Some covered employees may be selected more than once per year. After selection, Human Resources or the departmental designee will notify the employee that he/she needs to go to the Contract Medical Facility as soon as feasible. If an employee is not readily available, he/she will be notified and tested upon return to the work site.
  • 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 Human Resources or the departmental designee to make the appointment. The supervisor or designee will then transport the individual to the Contract Medical Facility as soon as feasible. Applicants for covered positions completing pre-employment testing will transport themselves. Employees who are being tested for these reasons will not be restored to duty or to the applicant pool until after the MRO determines that the test results are negative.
  • Alcohol Test. The Contract Medical Facility will test the breath of the covered employee 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 usually return to his/her normal duties. If the test results indicate the alcohol level to be between .02 and .04, the covered employee 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 related duties. If the alcohol level exceeds .04, the covered employee will be suspended from work indefinitely (not less than 30 days) and applicants for covered positions will not be further considered for the position, unless the MRO so recommends (See 6.3). Human Resources 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 is appropriate. When a covered employee has been referred to the Contract Medical Facility for reasonable suspicion, the MRO will also consider the supervisor's observations. The Contract Medical Facility 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 the covered employee 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 they would like the split urine specimen sent to another laboratory, to have the split examined in the same laboratory, or take no action in the matter. Any alternative laboratory that performs testing must also be certified for alcohol and drug testing by the U.S. Department of Health and Human Services. 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 Human Resources or the departmental designee and send a confidential report to the Director of Human Resources or director’s designee.

6.4 Training
Supervisors of covered employees will be given a minimum of 60 minutes of training on controlled substance abuse and 60 minutes on alcohol misuse annually. 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 of covered employees will also be given training on how to recognize, confront, and document incidents possibly caused by substance abuse.

Covered employees will be given a minimum of 60 minutes of training annually 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.

The training will be facilitated and provided by a qualified trainer through Sentara Health Systems. The Human Resources office, within Facilities Management, will schedule the annual training and communicate these details to the supervisors and employees that possess a CDL.

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 all CDL related and other driving duties and the employee may be terminated. Classified employees 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 covered employee will be suspended without pay for 30 days and referred to a substance abuse professional. The covered 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

  • Covered employees who commit a first offense under this policy, and who are being actively disciplined for any other reason, will normally be terminated.
  • After being returned to work from rehabilitation treatment, any subsequent disciplinary action will also normally result in termination.
  • The above guidelines notwithstanding, university management reserves the right to apply the full range of disciplinary actions, taking into account mitigating circumstances.
  • Repeat offenses with or without an active disciplinary notice for violations under this policy will result in further disciplinary action up to and including termination.

6.6 Return-to-Duty Re-Evaluation
Prior to being reassigned to a covered position, covered employees must undergo substance abuse testing and counseling by the same substance abuse professional. If returned to duty, the employee will be subject to a minimum of six unannounced follow-up tests over the next 12 months of active service with the possibility of unannounced testing for up to 60 months (as prescribed by the substance abuse professional).

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, Human Resources or the departmental designee will maintain a confidential file concerning any positive alcohol and drug tests, moving vehicle accidents as they pertain to this policy, 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 the U.S. Department of Transportation’s Office of Drug & Alcohol Policy & Compliance Rule (49 CFR Part 40) may be kept by the Contract Medical Facility, as long as it can provide the information within two business days of an official request by Department of Transportation officials. The information will be released on a need-to-know basis only.

7. RESPONSIBILITIES

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 shall 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 of covered employees are responsible for evaluating the fitness of their covered employees to perform their duties and taking corrective action when appropriate. Supervisors of covered employees are also required to participate in the drug and alcohol program overview and substance abuse training provided by the university.

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 do not possess a CDL or who do not use a CDL in performance of their jobs. See Policy 4303-Use of State Vehicles for parameters and procedures for university owned vehicles and vehicles leased or rented by the university to be used by employees and student groups in conducting the business of the university.

10. INTERPRETATION

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

Previous version: July 2011
Approved by the President: January 2008