Adopted: MSBA/MASA Model Policy 416
Revised:2022 Rev. 2022
416 DRUG AND ALCOHOL TESTING
I. PURPOSE
A. The school board recognizes the significant problems created
by drug and alcohol use in society in general, and the public schools in
particular. The school board further
recognizes the important contribution that the public schools have in shaping
the youth of today into the adults of tomorrow.
B. The school board believes that a work environment free of
drug and alcohol use will be not only safer, healthier, and more productive but
also more conducive to effective learning.
To provide such an environment, the purpose of this policy is to provide
authority so that the school board may require all employees and/or job
applicants to submit to drug and alcohol testing in accordance with the
provisions of this policy and as provided in federal law and Minnesota Statutes,
sections 181.950-181.957.
II. GENERAL STATEMENT OF POLICY
A. All school district employees and job applicants whose
positions require a commercial driver’s license will be required to undergo
drug and alcohol testing in accordance with federal law and the applicable
provisions of this policy. The school
district also may request or require that drivers submit to drug and alcohol
testing in accordance with the provisions of this policy and as provided in Minnesota
Statutes, sections 181.950-181.957.
B. The school district may request or require that any school
district employee or job applicant, other than an employee or applicant whose
position requires a commercial driver’s license, submit to drug and alcohol
testing in accordance with the provisions of this policy and as provided in Minnesota
Statutes, sections 181.950-181.957.
C. The use, possession, sale, purchase, transfer, or dispensing
of any drugs not medically prescribed, including medical cannabis, whether or
not it has been prescribed for the employee, is prohibited on school district
property (which includes school district vehicles), while operating school
district vehicles or equipment, and at any school-sponsored program or
event. Use of drugs that are not
medically prescribed, including medical cannabis, whether or not it has been
prescribed for the employee, is also prohibited throughout the school or work
day, including lunch or other breaks, whether or not the employee is on or off
school district property. Employees
under the influence of drugs that are not medically prescribed are prohibited
from entering or remaining on school district property.
D. The use, possession, sale, purchase, transfer, or dispensing
of alcohol is prohibited on school district property (which includes school
district vehicles), while operating school district vehicles or equipment, and
at any school-sponsored program or event.
Use of alcohol is also prohibited throughout the school or work day,
including lunch or other breaks, whether or not the employee is on or off
school district property. Employees
under the influence of alcohol are prohibited from entering or remaining on
school district property.
E. Any employee who violates this section shall be subject to
discipline that includes, but is not limited to, immediate suspension without
pay and immediate discharge.
III. FEDERALLY MANDATED DRUG AND ALCOHOL TESTING FOR SCHOOL BUS
DRIVERS
A. General Statement of Policy
All persons subject to commercial driver’s license
requirements shall be tested for alcohol, marijuana (including medical
cannabis), cocaine, amphetamines, opiates (including heroin), and phencyclidine
(PCP), pursuant to federal law. Drivers
who test positive for alcohol or drugs shall be subject to disciplinary action,
which may include termination of employment.
B. Definitions
1. “Actual Knowledge” means actual knowledge by the school
district that a driver has used alcohol or controlled substances based on: (a) direct
observation of the employee’s use (not observation of behavior sufficient to
warrant reasonable suspicion testing); (b) information provided by a previous
employer; (c) a traffic citation; or (d) an employee’s admission, except when
made in connection with a qualified employee self-admission program.
2. “Alcohol Screening Device” (ASD) means a breath or saliva
device, other than an Evidential Breath Testing Device (EBT), that is approved
by the National Highway Traffic Safety Administration and placed on its
Conforming Products List for such devices.
3. “Breath Alcohol Technician” (BAT) means an individual who
instructs and assists individuals in the alcohol testing process and who
operates the EBT.
4. “Commercial Motor Vehicle” (CMV) includes a vehicle that is
designed to transport 16 or more passengers, including the driver.
5. “Designated Employer Representative” (DER) means an employee
authorized by the school district to take immediate action to remove employees
from safety-sensitive duties, or cause employees to be removed from these
covered duties, and to make required decisions in the testing and evaluation
process. The DER receives test results
and other communications for the school district.
6. “Department of Transportation” (DOT) means United States
Department of Transportation.
7. “Direct Observation” means observation
of alcohol or controlled substances use and does not include observation of
employee behavior or physical characteristics sufficient to warrant reasonable
suspicion testing.
8. “Driver” is any person who operates a CMV, including
full-time, regularly employed drivers, casual, intermittent, or occasional
drivers, leased drivers, and independent owner-operator contractors.
9. “Evidential Breath Testing Device” (EBT) means a device
approved by the National Highway Traffic Safety Administration for the
evidentiary testing of breath for alcohol concentration and placed on its
Conforming Products List for such devices.
10. “Licensed Medical Practitioner” means a person who is
licensed, certified, and/or registered, in accordance with applicable Federal,
State, local, or foreign laws and regulations, to prescribe controlled
substances and other drugs.
11. “Medical Review Officer” (MRO) means a licensed physician
responsible for receiving and reviewing laboratory results generated by the
school district’s drug testing program and for evaluating medical explanations
for certain drug tests.
12. “Refusal to Submit” (to an alcohol or controlled substances
test) means that a driver: (a) fails to appear for any test within a reasonable
time, as determined by the school district, consistent with applicable DOT
regulations, after being directed to do so; (b) fails to remain at the testing
site until the testing process is complete; (c) fails to provide a urine
specimen or an adequate amount of saliva or breath for any DOT drug or alcohol
test; (d) fails to permit the observation or monitoring of the driver’s
provision of a specimen in the case of a directly observed or monitored
collection in a drug test; (e) fails to provide a sufficient breath specimen or
sufficient amount of urine when directed and a determination has been made that
no adequate medical explanation for the failure exists; (f) fails or declines
to take an additional test as directed by the school district or the collector;
(g) fails to undergo a medical examination or evaluation, as directed by the MRO
or the DER; (h) fails to cooperate with any part of the testing process (e.g.,
refuses to empty pockets when so directed by the collector, behaves in a
confrontational way that disrupts the collection process, fails to wash hands
after being directed to do so by the collector, fails to sign the certification
on the forms); (i) fails to follow the observer’s instructions, in an observed
collection, to raise the driver’s clothing above the waist, lower clothing and
underpants, and to turn around to permit the observer to determine if the driver
has any type of prosthetic or other device that could be used to interfere with
the collection process; (j) possesses or wears a prosthetic or other device
that could be used to interfere with the collection process; (k) admits to the
collector or MRO that the driver adulterated or substituted the specimen; or (l)
is reported by the MRO as having a verified adulterated or substituted test
result. An applicant who fails to appear
for a pre-employment test, who leaves the testing site before the pre-employment
testing process commences, or who does not provide a urine specimen because he
or she has left before it commences is not deemed to have refused to submit to
testing.
13. “Safety-Sensitive Functions” are on-duty functions from the
time the driver begins work or is required to be in readiness to work until
relieved from work and all responsibility for performing work, and include such
functions as driving, loading and unloading vehicles, or supervising or
assisting in the loading or unloading of vehicles, servicing, repairing,
obtaining assistance to repair, or remaining in attendance during the repair of
a disabled vehicle.
14. “Screening Test Technician” (STT) means anyone who instructs
and assists individuals in the alcohol testing process and operates an ASD.
15. “Stand Down” means the practice of temporarily removing an
employee from performing safety-sensitive functions based only upon a
laboratory report to the MRO of a confirmed positive test for a drug or drug
metabolite, an adulterated test, or a substituted test before the MRO completes
the verification process.
16. “Substance Abuse Professional” (SAP) means a qualified
person who evaluates employees who have violated a DOT drug and alcohol
regulation and makes recommendations concerning education, treatment, follow-up
testing, and aftercare.
C. Policy and Educational Materials
1. The school district shall provide a copy of this policy and
procedures to each driver prior to the start of its alcohol and drug testing
program and to each driver subsequently hired or transferred into a position
requiring driving of a CMV.
2. The school district shall provide to each driver information
required under Title 49 of the Code of Federal Regulations, including
information concerning the effects of alcohol and controlled substances use on
an individual’s health, work, and personal life; signs and symptoms of an
alcohol or controlled substance problem (the driver’s or a coworker’s); and
available methods of intervening when an alcohol or controlled substance problem
is suspected, including confrontation, referral to an employee assistance
program, and/or referral to management.
3. The school district shall provide written notice to
representatives of employee organizations that the information described above
is available.
4. The school district shall require each driver to sign a
statement certifying that the driver received a copy of the policy and
materials. This statement should be in
the form of Attachment A to this policy. The school district will maintain the original
signed certificate and will provide a copy to the driver if the driver so
requests.
D. Alcohol and Controlled Substances Testing Program Manager
1. The program manager/transportation manager will coordinate
the implementation, direction, and administration of the alcohol and controlled
substances testing policy for bus drivers.
The program manager is the principal contact for the collection site,
the testing laboratory, the MRO, the BAT, the SAP, and the person submitting to
the test. Employee questions concerning
this policy shall be directed to the program manager.
2. The school district shall designate a program manager and
provide written notice of the designation to each driver along with this
policy.
E. Specific Prohibitions for Drivers
1. Alcohol Concentration. No driver shall report for duty or remain on
duty requiring the performance of safety-sensitive functions while having an
alcohol concentration of 0.04 or greater.
Drivers who test greater than 0.04 will be taken out of service and will
be subject to evaluation by a professional and retesting at the driver’s
expense.
2. Alcohol Possession. No driver shall be on duty or operate a CMV while
the driver possesses alcohol.
3. On-Duty Use. No driver shall use alcohol while performing
safety-sensitive functions.
4. Pre-Duty Use. No driver shall perform safety-sensitive
functions within four (4) hours after using alcohol.
5. Use Following an Accident. No driver required to take a post-accident
test shall use alcohol for eight (8) hours following the accident, or until the
driver undergoes a post-accident alcohol test, whichever occurs first.
6. Refusal to Submit to a Required Test. No driver shall
refuse to submit to an alcohol or controlled substances test required by
post-accident, random, reasonable suspicion, return-to-duty, or follow-up
testing requirements. A verified
adulterated or substituted drug test shall be considered a refusal to test.
7. Use of Controlled Substances. No driver shall
report for duty or remain on duty requiring the performance of safety-sensitive
functions when the driver uses any controlled substance, except when the use is
pursuant to instructions (which have been presented to the school district)
from a licensed medical practitioner who is familiar with the driver’s medical
history and has advised the driver that the substance does not adversely affect
the driver’s ability to safely operate a CMV. Controlled
substance includes medical cannabis, regardless of whether the driver is
enrolled in the state registry program.
8. Positive, Adulterated, or Substituted Test for Controlled
Substance.
No driver shall report for duty, remain on duty, or perform a
safety-sensitive function if the driver tests positive for controlled
substances, including medical cannabis, or has adulterated or substituted a
test specimen for controlled substances.
9. General Prohibition. Drivers are also subject to the general
policies and procedures of the school district that prohibit possession,
transfer, sale, exchange, reporting to work under the influence of drugs or
alcohol, and consumption of drugs or alcohol while at work or while on school
district premises or operating any school district vehicle, machinery, or
equipment.
F. Other Alcohol-Related Conduct
No driver found to have an alcohol concentration of 0.02 or
greater but less than 0.04 shall perform safety-sensitive functions for at
least twenty-four (24) hours following administration of the test. The school district will not take any action
under this policy other than removal from safety-sensitive functions based
solely on test results showing an alcohol concentration of less than 0.04 but
may take action otherwise consistent with law and the policies of the school
district.
G. Prescription Drugs/Cannabinoid Products
A driver shall inform the driver’s supervisor if at any time
the driver is using a controlled substance pursuant to a physician’s
prescription. The physician’s
instructions shall be presented to the school district upon request. Use of a prescription drug shall be allowed
if the physician has advised the driver that the prescribed drug will not
adversely affect the driver’s ability to safely operate a CMV. Use of medical
cannabis is prohibited notwithstanding the driver’s enrollment in the patient
registry. Use of nonintoxicating
cannabinoids or edible cannabinoid products is not a legitimate medical
explanation for a confirmed positive test result for marijuana. MROs will verify a drug test confirmed as
positive, even if a driver claims to have only used nonintoxicating
cannabinoids or edible cannabinoid product.
H. Testing Requirements
1.
Pre-Employment
Testing
a. A driver applicant shall undergo testing for [alcohol and]
controlled substances, including medical cannabis, before the first time the
driver performs safety-sensitive functions for the school district.
b. Tests shall be conducted only after the applicant has
received a conditional offer of employment.
c. To be hired, the applicant must test negative and must sign
an agreement in the form of Attachment B to this policy, authorizing former
employers to release to the school district all information on the applicant’s
alcohol tests with results of blood alcohol concentration of 0.04 or higher, or
verified positive results for controlled substances, including medical
cannabis, or refusals to be tested (including verified adulterated or
substituted drug test results), or any other violations of DOT agency drug and
alcohol testing regulations, or, if the applicant violated the testing
regulations, documentation of the applicant’s successful completion of DOT
return-to-duty requirements (including follow-up tests), within the preceding
two (2) years.
d. The applicant also must be asked whether he or she has
tested positive, or refused to test, on any pre-employment drug or alcohol test
administered by an employer to which the employee, during the last two (2)
years, applied for, but did not obtain, safety-sensitive transportation work
covered by DOT testing rules.
e. Before
employing a driver subject to controlled substances and alcohol testing, the
school district must conduct a full pre-employment query of the federal
Commercial Driver’s License (CDL) Drug and Alcohol Clearinghouse
(“Clearinghouse”) to obtain information about whether the driver (1) has a
verified positive, adulterated, or substituted controlled substances test
result; (2) has an alcohol confirmation test with a concentration of 0.04 or
higher; (3) has refused to submit to a test in violation of federal law; or (4)
that an employer has reported actual knowledge that the driver used alcohol on
duty, before duty, or following an accident in violation of federal law or used
a controlled substance in violation of federal law. The applicant must give specific written or
electronic consent for the school district to conduct the Clearinghouse full
query. The school district shall retain the consent for three (3) years from
the date of the query.
3. Post-Accident Testing
a. As soon as practicable following an accident involving a
CMV, the school district shall test the driver for alcohol and controlled
substances, including medical cannabis, if the accident involved the loss of
human life or if the driver receives a citation for a moving traffic violation
arising from an accident which results in bodily injury or disabling damage to
a motor vehicle.
b. Drivers should be tested for alcohol use within two (2)
hours and no later than eight (8) hours after the accident.
c. Drivers should be tested for controlled substances,
including medical cannabis, no later than thirty-two (32) hours after the
accident.
d. A driver subject to post-accident testing must remain
available for testing, or shall be considered to have refused to submit to the
test.
e. If a post-accident alcohol test is not administered within
two (2) hours following the accident, the school district shall prepare and
maintain on file a record stating the reasons the test was not promptly
administered and continue to attempt to administer the alcohol test within
eight (8) hours.
f. If a post-accident alcohol test is not administered within
eight (8) hours following the accident or a post-accident controlled substances
test is not administered within thirty-two (32) hours following the accident,
the school district shall cease attempts to administer the test, and prepare
and maintain on file a record stating the reasons for not administering the
test.
g. The school
district shall report drug and alcohol program violations to the Clearinghouse
as required under federal law.
4. Random Testing
a. The school district shall conduct tests on a random basis at
unannounced times throughout the year, as required by the federal regulations.
b. The school district shall test for alcohol at a minimum
annual percentage rate of 10% of the average number of driver positions, and
for controlled substances, including medical cannabis, at
a minimum annual percentage of 50%.
c. The school district shall adopt a scientifically valid
method for selecting drivers for testing, such as random number table or a
computer-based random number generator that is matched with identifying numbers
of the drivers. Each driver shall have
an equal chance of being tested each time selections are made. Each driver selected for testing shall be
tested during the selection period.
d. Random tests shall be unannounced. Dates for administering random tests shall be
spread reasonably throughout the calendar year.
e. Drivers shall proceed immediately to the collection site
upon notification of selection; provided, however, that if the driver is
performing a safety-sensitive function, other than driving, at the time of
notification, the driver shall cease to perform the function and proceed to the
collection site as soon as possible.
5. Reasonable Suspicion Testing
a. The school district shall require a driver to submit to an
alcohol test and/or controlled substances, including medical cannabis, test
when a supervisor or school district official, who has been trained in
accordance with the regulations, has reasonable suspicion to believe that the
driver has used alcohol and/or controlled substances, including medical
cannabis, on duty, within four (4) hours before coming on duty, or just after
the period of the work day. The test
shall be done as soon as practicable following the observation of the behavior
indicative of the use of controlled substances or alcohol.
b. The reasonable suspicion determination must be based on
specific, contemporaneous, articulable observations concerning the driver’s
appearance, behavior, speech, or body odors.
The required observations for reasonable suspicion of a controlled
substances violation may include indications of the chronic and withdrawal
effects of controlled substances.
c. Alcohol testing shall be administered within two (2) hours
following a determination of reasonable suspicion. If it is not done within two (2) hours, the
school district shall prepare and maintain a record explaining why it was not
promptly administered and continue to attempt to administer the alcohol test
within eight (8) hours. If an alcohol
test is not administered within eight (8) hours following the determination of
reasonable suspicion, the school district shall cease attempts to administer
the test and state in the record the reasons for not administering the test.
d. The supervisor or school district official who makes
observations leading to a controlled substances reasonable suspicion test shall
make and sign a written record of the observations within twenty-four (24)
hours of the observed behavior or before the results of the drug test are
released, whichever is earlier.
6. Return-To-Duty Testing. A driver found to have violated this policy
shall not return to work until an SAP has determined the employee has
successfully complied with prescribed education and/or treatment and until
undergoing return-to-duty tests indicating an alcohol concentration of less
than 0.02 and a confirmed negative result for the use of controlled substances.
The school district is not required to
return a driver to safety-sensitive duties because the driver has met these
conditions; this is a personnel decision subject to collective bargaining
agreements or other legal requirements.
7. Follow-Up Testing. When an SAP has determined that a driver is
in need of assistance in resolving problems with alcohol and/or controlled
substances, the driver shall be subject to unannounced follow-up testing as
directed by the SAP for up to sixty (60) months after completing a treatment
program.
8. Refusal to Submit and Attendant Consequences
a. A driver or driver applicant may refuse to submit to drug
and alcohol testing.
b. Refusal to submit to a required drug or alcohol test
subjects the driver or driver applicant to the consequences specified in
federal regulations as well as the civil and/or criminal penalty provisions of
49 United States Code section 521(b). In
addition, a refusal to submit to testing establishes a presumption that the
driver or driver applicant would test positive if a test were conducted and
makes the driver or driver applicant subject to discipline or disqualification
under this policy.
c. A driver applicant who refuses to submit to testing shall be
disqualified from further consideration for the conditionally offered position.
d. An employee who refuses to submit to testing shall not be
permitted to perform safety-sensitive functions and will be considered
insubordinate and subject to disciplinary action, up to and including
dismissal. If an employee is offered an
opportunity to return to a DOT safety-sensitive duty, the employee will be
evaluated by an SAP and must submit to a return-to-duty test prior to being
considered for reassignment to safety-sensitive functions.
e. Drivers or driver applicants who refuse to submit to
required testing will be required to sign Attachment C to this policy.
I. Testing Procedures
1. Drug Testing
a. Drug testing is conducted by analyzing a donor’s urine
specimen. Split urine samples will be
collected in accordance with federal regulations. The donor will provide a urine sample at a
designated collection site. The
collection site personnel will then pour the sample into two sample bottles,
labeled “primary” and “split,” seal the specimen bottles, complete the chain of
custody form, and prepare the specimen bottles for shipment to the testing
laboratory for analysis. The specimen
preparation shall be conducted in sight of the donor.
b. If the donor is unable to provide the appropriate quantity
of urine, the collection site person shall instruct the individual to drink up
to forty (40) ounces of fluid distributed reasonably through a period of up to
three (3) hours to attempt to provide a sample.
If the individual is still unable to provide a complete sample, the test
shall be discontinued and the school district notified. The DER shall refer the donor for a medical
evaluation to determine if the donor’s inability to provide a specimen is
genuine or constitutes a refusal to test.
For pre-employment testing, the school district may elect to not have a
referral made, and revoke the employment offer.
c. Drug test results are reported directly to the MRO by the
testing laboratory. The MRO reports the
results to the DER. If the results are
negative, the school district is informed and no further action is
necessary. If the test result is
confirmed positive, adulterated, substituted, or invalid, the MRO shall give
the donor an opportunity to discuss the test result. The MRO will contact the donor directly, on a
confidential basis, to determine whether the donor wishes to discuss the test
result. The MRO shall notify each donor
that the donor has seventy-two (72) hours from the time of notification in
which to request a test of the split specimen at the donor’s expense. No split specimen testing is done for an
invalid result.
d. If the donor requests an analysis of the split specimen
within seventy-two (72) hours of having been informed of a confirmed positive
test, the MRO shall direct, in writing, the laboratory to provide the split
specimen to another Department of Health and Human Services – SAMHSA certified
laboratory for analysis. If the donor
has not contacted the MRO within seventy-two (72) hours, the donor may present
the MRO information documenting that serious illness, injury, inability to
contact the MRO, lack of actual notice of the confirmed positive test, or other
circumstances unavoidably prevented the donor from timely making contact. If the MRO concludes that a legitimate
explanation for the donor’s failure to contact him/her within seventy-two (72)
hours exists, the MRO shall direct the analysis of the split specimen. The MRO will review the confirmed positive
test result to determine whether an acceptable medical reason for the positive
result exists. The MRO shall confirm and
report a positive test result to the DER and the employee when no legitimate
medical reason for a positive test result as received from the testing
laboratory exists.
e. If, after making reasonable efforts and documenting those
efforts, the MRO is unable to reach the donor directly, the MRO must contact
the DER who will direct the donor to contact the MRO. If the DER is unable to contact the donor,
the donor will be suspended from performing safety-sensitive functions.
f. The MRO may confirm the test as a positive without having
communicated directly with the donor about the test results under the following
circumstances:
(1) The donor expressly declines the opportunity to discuss the
test results;
(2) The donor has not contacted the MRO within seventy-two (72)
hours of being instructed to do so by the DER; or
(3) The MRO and the DER, after making and documenting all
reasonable efforts, have not been able to contact the donor within ten (10)
days of the date the confirmed test result was received from the laboratory.
2. Alcohol Testing
a. The federal alcohol testing regulations require testing to
be administered by a BAT using an EBT or an STT using an ASD. EBTs and ASDs can be used for screening tests
but only EBTs can be used for confirmation tests.
b. Any test result less than 0.02 alcohol concentration is
considered a “negative” test.
c. If the donor is unable to provide sufficient saliva for an
ASD, the DER will immediately arrange to use an EBT. If the donor attempts and fails to provide an
adequate amount of breath, the school district will direct the donor to obtain
a written evaluation from a licensed physician to determine if the donor’s
inability to provide a breath sample is genuine or constitutes a refusal to
test.
d. If the screening test results show alcohol concentration of
0.02 or higher, a confirmatory test conducted on an EBT will be required to be
performed between fifteen (15) and thirty (30) minutes after the completion of
the screening test.
e. Alcohol tests are reported directly to the DER.
J. Driver/Driver Applicant Rights
1. All drivers and driver applicants subject to the controlled
substances testing provisions of this policy who receive a confirmed positive
test result for the use of controlled substances have the right to request, at
the driver’s or driver applicant’s expense, a confirming retest of the split
urine sample. If the confirming retest
is negative, no adverse action will be taken against the driver, and a driver
applicant will be considered for employment.
2. The school district will not discharge a driver who, for the
first time, receives a confirmed positive drug or alcohol test UNLESS:
a. The school district has first given the employee an
opportunity to participate in, at the employee’s own expense or pursuant to
coverage under an employee benefit plan, either a drug or alcohol counseling or
rehabilitation program, whichever is more appropriate, as determined by the
school district after consultation with the SAP; and
b. The employee refuses to participate in the recommended
program, or fails to successfully complete the program as evidenced by
withdrawal before its completion or by a positive test result on a confirmatory
test after completion of the program.
c. This limitation on employee discharge does not bar discharge
of an employee for reasons independent of the first confirmed positive test
result.
K. Testing Laboratory
The testing laboratory for controlled substances will be coordinated
with NSWC Safety Consultation which is a laboratory certified by the Department
of Health and Human Services – SAMHSA to perform controlled substances testing
pursuant to federal regulations.
L. Confidentiality of Test Results
All alcohol and controlled substances test results and required
records of the drug and alcohol testing program are considered confidential
information under federal law and private data on individuals as that phrase is
defined in Minnesota Statutes, Chapter 13.
Any information concerning the individual’s test results and records
shall not be released without written permission of the individual, except as
provided for by regulation or law.
M. Recordkeeping Requirements and Retention of Records
1. The school district shall keep and maintain records in accordance
with the federal regulations in a secure location with controlled access.
2. The required records shall be retained for the following
minimum periods:
Basic records 5 years
“Basic records” includes records of: (a) alcohol test
results with concentration of 0.02 or greater; (b) verified positive drug test
results; (c) refusals to submit to required tests (including substituted or
adulterated drug test results); (d) SAP reports; (e) all follow-up tests and
schedules for follow-up tests; (f) calibration documentation; (g)
administration of the testing programs; and (h) each annual calendar year
summary.
Information obtained from previous employers 3 years
Alcohol and controlled substance collection procedures 2
years
Negative and cancelled controlled substance tests 1 year
Alcohol tests with less than 0.02 concentration 1 year
Education and training records indefinite
“Education and training records” must be maintained while
the individuals perform the functions which require training and for the two
(2) years after ceasing to perform those functions.
3. Personal Information
Personal information about all individuals who undergo any
required testing under this policy will be shared with the U.S. DOT Drug &
Alcohol Clearinghouse (“Clearinghouse) as required under federal
law, including:
a.
The name of the person tested;
b.
Any verified positive, adulterated, or
substituted drug test result;
c.
Any alcohol confirmation test with a
BAC concentration of 0.04 or higher;
d.
Any refusal to submit to any test
required hereunder;
e.
Any report by a supervisor of actual
knowledge of use as follows
i.
Any on-duty alcohol use;
ii.
Any pre-duty alcohol use;
iii.
Any alcohol use following an accident;
and
iv.
Any controlled substance use.
f.
Any report from a substance abuse
professional certifying successful completion of the return-to-work process;
g.
Any negative return-to-duty test; and
h.
Any employer’s report of completion of
follow-up testing.
N. Training
The school district shall ensure all persons designated to
supervise drivers receive training. The
designated employees shall receive at least sixty (60) minutes of training on
alcohol misuse and at least sixty (60) minutes of training on controlled
substances use. The training shall
include physical, behavioral, speech, and performance indicators of probable
misuse of alcohol and use of controlled substances. The training will be used by the supervisors
to make determinations of reasonable suspicion.
O. Consequences of Prohibited Conduct and Enforcement
1. Removal. The school district shall remove a driver who
has engaged in prohibited conduct from safety-sensitive functions. A driver shall not be permitted to return to
safety-sensitive functions until and unless the return-to-duty requirements of
federal DOT regulations have been completed.
2. Referral, Evaluation, and Treatment
a.
A driver or driver applicant who has
engaged in prohibited conduct shall be provided a listing of SAPs readily
available to the driver or applicant and acceptable to the school district.
b. If the school district offers a driver an opportunity to
return to a DOT safety-sensitive duty following a violation, the driver must be
evaluated by an SAP and the driver is required to successfully comply with the
SAP’s evaluation recommendations (education, treatment, follow-up
evaluation(s), and/or ongoing services).
The school district is not required to provide an SAP evaluation or any
subsequent recommended education or treatment.
c. Drivers are responsible for payment for SAP evaluations and
services unless a collective bargaining agreement or employee benefit plan
provides otherwise.
d. Drivers who engage in prohibited conduct also are required
to comply with follow-up testing requirements.
3. Disciplinary Action
a. Any driver who refuses to submit to post-accident, random,
reasonable suspicion, or follow-up testing not only shall not perform or
continue to perform safety-sensitive functions, but also may be subject to
disciplinary action, which may include immediate suspension without pay and/or
immediate discharge.
b. Drivers who test positive with verification of a
confirmatory test or are otherwise found to be in violation of this policy or
the federal regulations shall be subject to disciplinary action, which may
include immediate suspension without pay and/or immediate discharge.
c. Nothing in this policy limits or restricts the right of the
school district to discipline or discharge a driver for conduct which not only constitutes
prohibited conduct under this policy but also violates the school district’s
other rules or policies.
P. Other Testing
The school district may request or require that drivers
submit to drug and alcohol testing other than that required by federal
law. For example, drivers may be
requested or required to undergo drug and alcohol testing on an annual basis as
part of a routine physical examination.
Such additional testing of drivers will be conducted only in accordance
with the provisions of this policy and as provided in Minnesota Statutes, sections
181.950-181.957. For purposes of such
additional, non-mandatory testing, drivers fall within the definition of “other
employees” covered by Section IV. of this policy.
Q. Report to Clearinghouse
The school district shall promptly submit to the
Clearinghouse any record generated of an individual who refuses to take an
alcohol or controlled substance test required under Title 49, Code of Federal
Regulations, tests positive for alcohol or a controlled substance in violation
of federal regulations, or violates subpart B of Part 382 of Title 49, Code of
Federal Regulations (or any subsequent corresponding regulations).
R. Annual Clearinghouse Query
1. The school
district must conduct a query of the Clearinghouse record at least once per
year for information for all employees subject to controlled substance and
alcohol testing related to CMV operation to determine whether information
exists in the Clearinghouse about those employees. In lieu of a full query, the school district
may obtain the individual driver’s consent to conduct a limited query to
satisfy the annual query requirement. The
limited query will tell the employer whether there is information about the driver
in the Clearinghouse but will not release that information to the employer. If the limited query shows that information
exists in the Clearinghouse about the driver, the school district must conduct
a full query within twenty-four (24) hours or must not allow the driver to
continue to perform any safety-sensitive function until the employee conducts
the full query and the results confirm the driver’s Clearinghouse record
contains no prohibitions showing the driver has a verified positive, adulterated
or substitute controlled substance test, no alcohol confirmation test with a
concentration of 0.04 or higher, refuses to submit to a test, or was reported
to have used alcohol on duty, before duty, following an accident or otherwise
used a controlled substance in violation of the regulations except where the
driver completed the SAP evaluation, referral and education/treatment process
as required by the regulations. The
school district shall comply with the query requirements set forth in 49 Code
of Federal Regulations 382.701.
2 The school
district may not access an individual’s Clearinghouse record unless the school
district (1) obtains the individual’s prior written or electronic consent for
access to the record; and (2) submits proof of the individual’s consent to the
Clearinghouse. The school district must
retain the consent for three (3) years from the date of the last query. The school
district shall retain for three (3) years a record of each request for records
from the Clearinghouse and the information received pursuant to the request.
3. The school district
shall protect the individual’s privacy and confidentiality of each
Clearinghouse record it receives. The school
district shall ensure that information contained in a Clearinghouse record is
not divulged to a person or entity not directly involved in assessing and
evaluating whether a prohibition applies with respect to the individual to
operate a CMV for the school district.
4. The school district
may use an individual’s Clearinghouse record only to assess and evaluate
whether a prohibition applies with respect to the individual to operate a CMV
for the school district.
IV. DRUG AND ALCOHOL TESTING FOR OTHER EMPLOYEES
The school district may request or require drug and alcohol
testing for other school district personnel, i.e., employees who are not school
bus drivers, or job applicants for such positions. The school district does not
have a legal duty to request or require any employee or job applicant to
undergo drug and alcohol testing as authorized in this policy, except for
school bus drivers and other drivers of CMVs who are subject to federally
mandated testing. (See Section III. of
this policy.) If a school bus driver is
requested or required to submit to drug or alcohol testing beyond that mandated
by federal law, the provisions of Section IV. of this policy will be applicable
to such testing.
A. Circumstances Under Which Drug or Alcohol Testing May Be
Requested or Required:
1. General Limitations
a. The school district will not request or require an employee
or job applicant whose position does not require a commercial driver’s license
to undergo drug or alcohol testing, unless the testing is done pursuant to this
drug and alcohol testing policy; and is conducted by a testing laboratory that
meets one of the criteria listed in Minnesota Statutes, section 181.953, subdivision
1.
b. The school district will not request or require an employee
or job applicant whose position does not require a commercial driver’s license
to undergo drug and alcohol testing on an arbitrary and capricious basis.
2. Job Applicant Testing
The school district may request or require any job applicant
whose position does not require a commercial driver’s license to undergo drug
and alcohol testing, provided a job offer has been made to the applicant and
the same test is requested or required of all job applicants conditionally
offered employment for that position. If
a job applicant has received a job offer that is contingent on the applicant’s
passing drug and alcohol testing, the school district may not withdraw the
offer based on a positive test result from an initial screening test that has
not been verified by a confirmatory test.
In the event the job offer is subsequently withdrawn, the school
district shall notify the job applicant of the reason for its action.
3. Random Testing
The school district may request or require employees to
undergo drug and alcohol testing on a random selection basis only if they are
employed in safety-sensitive positions.
4. Reasonable Suspicion Testing
The school district may request or require any employee to
undergo drug and alcohol testing if the school district has a reasonable
suspicion that the employee:
a. is under the influence of drugs or alcohol;
b. has violated the school district’s written work rules
prohibiting the use, possession, sale, or transfer of drugs or alcohol while
the employee is working or while the employee is on the school district’s
premises or operating the school district’s vehicles, machinery, or equipment;
c. has sustained a personal injury, as that term is defined in
Minnesota Statutes, section 176.011, subdivision
16, or has caused another employee to sustain a personal injury; or
d. has caused a work-related accident or was operating or
helping to operate machinery, equipment, or vehicles involved in a work-related
accident.
5. Treatment Program Testing
The school district may request or require any employee to
undergo drug and alcohol testing if the employee has been referred by the
school district for chemical dependency treatment or evaluation or is
participating in a chemical dependency treatment program under an employee
benefit plan, in which case the employee may be requested or required to
undergo drug and alcohol testing without prior notice during the evaluation or
treatment period and for a period of up to two (2) years following completion
of any prescribed chemical dependency treatment program.
6. Routine Physical Examination Testing
The school district may request or require any employee to
undergo drug and alcohol testing as part of a routine physical examination
provided the drug or alcohol test is requested or required no more than once
annually and the employee has been given at least two weeks’ written notice
that a drug or alcohol test may be requested or required as part of the
physical examination.
B. No Legal Duty to Test
The school district does not have a legal duty to request or
require any employee or job applicant whose position does not require a
commercial driver’s license to undergo drug and alcohol testing.
C. Definitions
1. “Drug” means a controlled substance as defined in Minnesota
Statutes, including medical cannabis, regardless of enrollment in the state
registry program.
2. “Drug and Alcohol Testing,” “Drug or Alcohol Testing,” and “Drug
or Alcohol Test” mean analysis of a body component sample by a testing
laboratory that meets one of the criteria listed in Minnesota Statutes, section181.953,
subdivision 1, for the purpose of measuring the presence or absence of drugs,
alcohol, or their metabolites in the sample tested.
3. “Other Employees” means any persons, independent
contractors, or persons working for an independent contractor who perform
services for the school district for compensation, either full time or part
time, in whatever form, except for persons whose positions require a commercial
driver’s license, and includes both professional and nonprofessional personnel. Persons whose positions require a commercial
driver’s license are primarily governed by the provisions of the school
district’s drug and alcohol testing policy relating to school bus drivers
(Section III.). To the extent that the
drug and alcohol testing of persons whose positions require a commercial
driver’s license is not mandated by federal law and regulations, such testing
shall be governed by Section IV. of this policy and the drivers shall fall
within this definition of “other employees.”
4. “Job Applicant” means a person, independent contractor, or
person working for an independent contractor who applies to become an employee
of the school district in a position that does not require a commercial
driver’s license, and includes a person who has received a job offer made
contingent on the person’s passing drug or alcohol testing. Job applicants for positions requiring a
commercial driver’s license are governed by the provisions of the school
district’s drug and alcohol testing policy relating to school bus drivers (Section
III.).
5. “Positive Test Result” means a finding of the presence of
drugs, alcohol, or their metabolites in the sample tested in levels at or above
the threshold detection levels contained in the standards of one of the
programs listed in Minnesota Statutes, section 181.953, subdivision 1.
6. “Random Selection Basis” means a mechanism for selection of
employees that:
a. results in an equal probability that any employee from a
group of employees subject to the selection mechanism will be selected; and
b. does not give the school district discretion to waive the
selection of any employee selected under the mechanism.
7. “Reasonable Suspicion” means a basis for forming a belief
based on specific facts and rational inferences drawn from those facts.
8. “Safety-Sensitive Position” means a job, including any
supervisory or management position, in which an impairment caused by drug or
alcohol usage would threaten the health or safety of any person.
D. Right of Other Employee or Job Applicant to Refuse Drug and
Alcohol Testing and Consequences of Such Refusal
1. Right of Other Employee or Job Applicant to Refuse Drug and
Alcohol Testing
Any employee or job applicant whose position does not
require a commercial driver’s license has the right to refuse drug and alcohol
testing subject to the provisions contained in Paragraphs 2. and 3. of Section IV.D.
2. Consequences of an Employee’s Refusal to Undergo Drug and
Alcohol Testing
Any employee in a position that does not require a
commercial driver’s license who refuses to undergo drug and alcohol testing in
the circumstances set out in the Random Testing, Reasonable Suspicion Testing,
and Treatment Program Testing provisions of this policy may be subject to
disciplinary action, up to and including immediate discharge.
3. Consequences of a Job Applicant’s Refusal to Undergo Drug
and Alcohol Testing
Any job applicant for a position which does not require a
commercial driver’s license who refuses to undergo drug and alcohol testing
pursuant to the Job Applicant Testing provision of this policy shall not be
employed.
E. Reliability and Fairness Safeguards
1. Pretest Notice
Before requesting an employee or job applicant whose
position does not require a commercial driver’s license to undergo drug or
alcohol testing, the school district shall provide the employee or job
applicant with a Pretest Notice in the form of Attachment D to this policy on
which to acknowledge that the employee or job applicant has received the school
district’s drug and alcohol testing policy.
2. Notice of Test Results
Within three (3) working days after receipt of a test result
report from the testing laboratory, the school district shall inform in writing
an employee or job applicant who has undergone drug or alcohol testing of a
negative test result on an initial screening test or of a negative or positive
test result on a confirmatory test.
3. Notice of and Right to Test Result Report
Within three (3) working days after receipt of a test result
report from the testing laboratory, the school district shall inform in
writing, an employee or job applicant who has undergone drug or alcohol testing
of the employee or job applicant’s right to request and receive from the school
district a copy of the test result report on any drug or alcohol test.
4. Notice of and Right to Explain Positive Test Result
a. If an employee or job applicant has a positive test result
on a confirmatory test, the school district shall provide the individual with
notice of the test results and, at the same time, written notice of the right
to explain the results and to submit additional information.
b. The school district may request that the employee or job
applicant indicate any over-the-counter or prescription medication that the
individual is currently taking or has recently taken and any other information
relevant to the reliability of, or explanation for, a positive test result.
c. The employee may present verification
of enrollment in the medical cannabis patient registry as part of the
employee’s explanation.
d. Use of
nonintoxicating cannabinoids or edible cannabinoid products is not a legitimate
medical explanation for a confirmed positive test result for marijuana. MROs will verify a drug test confirmed as
positive, even if an employee claims to have only used nonintoxicating cannabinoids
or edible cannabinoid product.
e. Within three (3) working days after notice of a positive
test result on a confirmatory test, an employee or job applicant may submit
information (in addition to any information already submitted) to the school district
to explain that result.
5. Notice of and Right to Request Confirmatory Retests
a. If an employee or job applicant has a positive test result
on a confirmatory test, the school district shall provide the individual with
notice of the test results and, at the same time, written notice of the right
to request a confirmatory retest of the original sample at his or her expense.
b. An employee or job applicant may
request a confirmatory retest of the original sample at his or her own expense
after notice of a positive test result on a confirmatory test. Within five (5) working days after notice of
the confirmatory test result, the employee or job applicant shall notify the
school district in writing of his or her intention to obtain a confirmatory
retest. Within three (3) working days
after receipt of the notice, the school district shall notify the original
testing laboratory that the employee or job applicant has requested the laboratory
to conduct the confirmatory retest or to transfer the sample to another
laboratory licensed under Minnesota Statutes, section 181.953, subdivision 1 to
conduct the confirmatory retest. The
original testing laboratory shall ensure that appropriate chain-of-custody
procedures are followed during transfer of the sample to the other
laboratory. The confirmatory retest must
use the same drug or alcohol threshold detection levels as used in the original
confirmatory test. If the confirmatory
retest does not confirm the original positive test result, no adverse personnel
action based on the original confirmatory test may be taken against the
employee or job applicant.
6. If an employee or job applicant has a positive test result
on a confirmatory test, the school district, at the time of providing notice of
the test results, shall also provide written notice to inform the individual of
other rights provided under Sections F. or G., below, whichever is applicable.
Attachments E and F to this policy provide the Notices
described in Paragraphs 2. through 6. of this Section E.
F. Discharge and Discipline of Employees Whose Positions Do Not
Require a Commercial Driver’s License
1. The school district may not discharge, discipline,
discriminate against, request, or require rehabilitation of an employee on the
basis of a positive test result from an initial screening test that has not
been verified by a confirmatory test.
2. In the case of a positive test result on a confirmatory
test, the employee shall be subject to discipline which includes, but is not
limited to, immediate suspension without pay and immediate discharge, pursuant
to the provisions of this policy.
3. The school district may not discharge an employee for whom a
positive test result on a confirmatory test was the first such result for the
employee on a drug or alcohol test requested by the school district, unless the
following conditions have been met:
a. The school district has first given the employee an
opportunity to participate in, at the employee’s own expense or pursuant to
coverage under an employee benefit plan, either a drug or alcohol counseling or
rehabilitation program, whichever is more appropriate, as determined by the
school district after consultation with a certified chemical abuse counselor or
a physician trained in the diagnosis and treatment of chemical dependency; and
b. The employee has either refused to participate in the
counseling or rehabilitation program or has failed to successfully complete the
program, as evidenced by withdrawal from the program before its completion or
by a positive test result on a confirmatory test after completion of the
program.
4. Notwithstanding Paragraph 1., the school district may
temporarily suspend the tested employee or transfer that employee to another
position at the same rate of pay pending the outcome of the confirmatory test
and, if requested, the confirmatory retest, provided the school district
believes that it is reasonably necessary to protect the health or safety of the
employee, co-employees or the public. An
employee who has been suspended without pay must be reinstated with back pay if
the outcome of the confirmatory test or requested confirmatory retest is
negative.
5. The school district may not discharge, discipline,
discriminate against, request, or require rehabilitation of an employee on the
basis of medical history information or the employee’s status as a patient
enrolled in the medical cannabis registry program revealed to the school
district, unless the employee was under an affirmative duty to provide the
information before, upon, or after hire, or failing to do so would violate
federal law or regulations or cause the school district to lose money or
licensing-related benefit under federal law or regulations.
6. The school
district may not discriminate against any employee in termination, discharge,
or any term of condition of employment or otherwise penalize an employee based
upon an employee registered patient’s positive drug test for cannabis
components or metabolites, unless the employee used, possessed, or was impaired
by medical cannabis on school district property during the hours of employment.
7. An employee must be given access to information in the
individual’s personnel file relating to positive test result reports and other
information acquired in the drug and alcohol testing process and conclusions
drawn from and actions taken based on the reports or other acquired
information.
G. Withdrawal of Job Offer for an Applicant for a Position That
Does Not Require a Commercial Driver’s License
If a job applicant has received a job offer made contingent
on the applicant’s passing drug and alcohol testing, the school district may
not withdraw the offer based on a positive test result from an initial
screening test that has not been verified by a confirmatory test. In the case of a positive test result on a
confirmatory test, the school district may withdraw the job offer.
H. Chain-of-Custody Procedures
The school district has established its own reliable
chain-of-custody procedures to ensure proper record keeping, handling,
labeling, and identification of the samples to be tested. The procedures require the following:
1. Possession of a sample must be traceable to the employee
from whom the sample is collected, from the time the sample is collected
through the time the sample is delivered to the laboratory;
2. The sample must always be in the possession of, must always
be in view of, or must be placed in a secure area by a person authorized to
handle the sample;
3. A sample must be accompanied by a written chain-of-custody
record; and
4. Individuals relinquishing or accepting possession of the
sample must record the time the possession of the sample was transferred and
must sign and date the chain-of-custody record at the time of transfer.
I. Privacy, Confidentiality and Privilege Safeguards
1. Privacy Limitations
A laboratory may only disclose to the school district test
result data regarding the presence or absence of drugs, alcohol or their
metabolites in a sample tested.
2. Confidentiality Limitations
With respect to employees and job applicants, test result
reports and other information acquired in the drug or alcohol testing process
are private data on individuals as that phrase is defined in Minnesota Statutes
Chapter 13, and may not be disclosed by the school district or laboratory to
another employer or to a third-party individual, governmental agency, or
private organization without the written consent of the employee or job
applicant tested.
3. Exceptions to Privacy and Confidentiality Disclosure
Limitations
Notwithstanding Paragraphs 1. and 2., evidence of a positive
test result on a confirmatory test may be:
(1) used in an arbitration proceeding pursuant to a collective
bargaining agreement, an administrative hearing under Minnesota Statutes, Chapter
43A or other applicable state or local law, or a judicial proceeding, provided
that information is relevant to the hearing or proceeding; (2) disclosed to any
federal agency or other unit of the United States government as required under
federal law, regulation or order, or in accordance with compliance requirements
of a federal government contract; and (3) disclosed to a substance abuse
treatment facility for the purpose of evaluation or treatment of the employee.
4. Privilege
Positive test results from the school district drug or
alcohol testing program may not be used as evidence in a criminal action
against the employee or job applicant tested.
J. Notice of Testing Policy to Affected Employees
The school district shall provide written notice of this
drug and alcohol testing policy to all affected employees upon adoption of the
policy, to a previously non-affected employee upon transfer to an affected
position under the policy, and to a job applicant upon hire and before any
testing of the applicant if the job offer is made contingent on the applicant’s
passing drug and alcohol testing.
Affected employees and applicants will acknowledge receipt of this
written notice in the form of Attachment G to this policy.
V. POSTING
The school district shall post notice in an appropriate and
conspicuous location on its premises that it has adopted a drug and alcohol
testing policy and that copies of the policy are available for inspection
during regular business hours by its employees or job applicants in its
personnel office or other suitable locations.
Legal References: Minn. Stat. Ch. 13 (Minnesota
Government Data Practices Act)
Minn. Stat. Ch. 43A (State Personnel Management)
Minn. Stat. § 151.72 (Sale of Certain Cannabinoid Products)
Minn. Stat. § 152.01 (Definitions)
Minn. Stat. § 152.22 (Definitions; Medical Cannabis)
Minn. Stat. § 152.23 (Limitations; Medical Cannabis)
Minn. Stat. § 152.32 (Protections for Registry Program
Participation)
Minn. Stat. § 176.011, subd. 16 (Definitions; Personal
Injury)
Minn. Stat. §§ 181.950-181.957 (Drug and Alcohol Testing in
the Workplace)
Minn. Stat. § 221.031 (Motor Carrier Rules)
49 U.S.C. § 31306 (Omnibus Transportation Employee Testing
Act of 1991)
49 U.S.C. 31306a (National Clearinghouse for Controlled
Substance and Alcohol Test Results of Commercial Motor Vehicle Operators)
49 U.S.C. § 521(b) (Civil and Criminal Penalties for
Violations)
49 C.F.R. Parts 40 and 382 (Department of Transportation
Rules Implementing Omnibus Transportation Employee Testing Act of 1991)
Cross-References: MSBA/MASA Model Policy 403 (Discipline,
Suspension, and Dismissal of School
District Employees)
MSBA/MASA Model Policy 406 (Public and Private Personnel
Data)
MSBA/MASA Model Policy 417 (Chemical Use and Abuse)
MSBA/MASA Model Policy 418 (Drug-Free Workplace/Drug-Free
School)