Drug Testing for Non-Faculty Employees UPPS No. 04.04.18
Issue No. 1
Effective Date: 03/30/2009
Review: March 1 E2Y
01. POLICY STATEMENT
01.01 This UPPS contains Texas State’s policies and procedures to comply with federal, state, and regental requirements regarding the use of alcohol, drugs, controlled substances, and other performance altering substances in and out of the workplace. The procedures provide for drug testing and are intended to meet the compliance requirements of the Drug Free Workplace Act of 1988, 41 U.S.C. §701; the Drug Free Schools and Communities Act of 1989, 20 U.S.C. §1011i; Chapter V of the Rules and Regulations of the Board of Regents, Texas State University System (TSUS); and the Rules of the Texas Workers’ Compensation Commission, 28 T.A.C. §169.1, 169.2.
02. GENERAL PROVISIONS
02.01 The TSUS Regents’ Rules provide that a university employee who violates controlled substance laws is subject to disciplinary sanctions, including termination.
02.02 Drug testing helps the university comply with federal, state, regental, and university requirements regarding the use of alcohol, drugs, controlled substances, and other performance altering substances in and out of the workplace. Employees who refuse to consent to testing or fail to pass testing required for employment in a position are disqualified for employment in that position.
02.03 Time taken by an employee (including travel) to take a drug test is paid time unless the test outcome is positive. If the test outcome is positive, the time to take the test must be charged to vacation, compensatory time, or leave without pay as appropriate.
02.04 Any employee who is convicted of violating any federal or state criminal alcohol or drug statute must notify his or her department head no later than the next work day of the conviction. Failure to provide notice as required in this section may result in disciplinary action up to and including termination.
03.01 In this UPPS, the term “employee” includes members of the staff as defined in Section 1.1 of Chapter V of the Regents’ Rules. It also includes students employed by the university in any capacity. It does not include faculty employees as defined in the Regents’ Rules.
03.02 The term “drug” includes alcohol, controlled substances, and any other drug, narcotic, or performance altering substance.
03.03 The term “controlled substance” means a controlled substance in schedules I through V, Section 2.02 of the Controlled Substance Act (21 U.S.C. 812) or the Texas Controlled Substances Act (Tex. Health & Safety Code Ann. §481 (Vernon 2002).
03.04 The term “performance altering substance” includes any substance outside those identified in Section 03.03, which produces behavior that is not acceptable to the supervisor of the employee’s workplace.
03.05 The term “conviction” means a finding of guilt, an admission of guilt, a no contest plea, or an imposition of sentence by any judicial body for violation of a criminal statute involving the unlawful manufacture, distribution, dispensation, possession, or use of alcohol and drugs.
04. DRUG TESTING PROCEDURES
04.01 The university will contract with an approved independent drug testing facility to conduct all drug testing. The agency must meet all legal requirements for a qualified and secure testing process. The university will conduct Pre-Employment Testing, Post Motor Vehicle Accident Testing, Random Testing, and Reasonable Suspicion Testing.
a. Pre-Employment Testing – Testing is required for persons employed in positions that involve any of the following: (1) carrying firearms; (2) access to controlled substances; (3) the medical diagnosis, treatment, or care of patients; (4) the operation of medical equipment or the performance of a medical test or analysis used to diagnose or treat patients; (5) the care or welfare of children; and (6) the requirement of a commercial driver’s license in the operation of university vehicles. The person must pass all testing prior to appointment. The university will conduct the test after an offer of employment, but prior to the person’s first active duty date or prior to a person transferring into a position covered by this section of the policy.
b. Post Motor Vehicle Accident Testing – The University requires testing for each employee who must have a commercial driver’s license as a condition of employment if that employee, while operating a university or private motor vehicle, is in an accident which results in (a) an injury, (b) fatality, (c) a vehicle towed from the scene of an accident, (d) a traffic citation issued to the employee, or (d) a request from management to undergo testing.
The employee must notify the appropriate supervisor immediately when conditions (a) or (b) have occurred (If the employee is unable to notify the appropriate supervisor, a knowledgeable source may make the notification). As required by federal Department of Transportation regulations, the employee must take a breath alcohol test within two hours of the accident and produce a urine sample for testing within 32 hours of the accident. Management may require the administration of tests at an earlier interval.
c. Random Testing – The university recognizes the privacy interest of its employees and ordinarily will not conduct random drug testing. However, the university does have an interest in conducting random drug tests for certain categories of employees, arising from the extraordinary safety hazards posed by a drug-impaired employee in one of those categories. This UPPS refers to those categories as “safety sensitive positions.”
1) The categories of employees in safety sensitive positions subject to random drug testing include those whose routine duties involve: (1) carrying firearms; (2) access to controlled substances; (3) the medical diagnosis, treatment, or care of patients; (4) the operation of medical equipment or the performance of a medical test or analysis used to diagnose or treat patients; (5) the care or welfare of children; and (6) the requirement of a commercial driver’s license in the operation of university vehicles.
2) With the exception of those employees required to possess a commercial driver’s license as a condition of employment, the university will not randomly test employees in safety sensitive positions unless it determines that less intrusive means will not achieve its objectives.
3) The vice president in the employees’ reporting line, the Director of Human Resources, and the University Attorney must approve in advance any program for randomly testing employees in safety sensitive positions.
d. Reasonable Suspicion Testing – All university staff and student employees are subject to reasonable suspicion testing for drugs and alcohol whenever there is reason to believe that the employee may have used drugs or alcohol in violation of this policy. The university will base its reasonable suspicion on specific, contemporaneous, observations of the employee’s appearance, behavior, speech, or odor, including behavior or symptoms, which may indicate the effects of chronic use of or withdrawal from controlled substances. In addition, a job-related accident or near accident involving human error may trigger a reasonable suspicion test request.
The supervisor must make a written record of observations leading to the reasonable suspicion. The supervisor should also discuss these observations with the employee. If the supervisor, after discussion with the employee, reasonably suspects that the employee’s work behavior is influenced by alcohol, an illegal drug, or other performance altering substance, the supervisor will immediately take the employee in for testing. The supervisor may request assistance from the University Police Department in transporting the employee to the testing site. The supervisor will arrange for transportation home for the employee after testing.
e. Refusal to submit to testing – An employee who refuses to submit to testing or who attempts to thwart or evade testing is subject to disciplinary action, including termination of employment. An applicant who refuses to submit to testing or who attempts to thwart or evade testing may be disqualified for employment in that position.
04.02 When an individual reports to a testing facility for testing, that individual must have a valid form of photo identification to present to the testing agency unless accompanied by a supervisor or person who can provide a positive identification of the individual reporting for testing. The employee’s department will pay the cost of any testing.
04.03 Test results are confidential. Only Human Resources, the appropriate supervisory officials in the employee’s chain of command, the individual tested, and an appropriate designated substance abuse treatment professional may receive the results of an employee’s drug test.
04.04 An employee may not return to work for 24 hours after failing a required drug test.
04.05 An appropriate management official will meet with an employee who has failed a test to (1) inform the employee of the test results, (2) determine what disciplinary action, if any, should be taken, and (3) explore the possibilities for the employee to participate in an appropriate rehabilitation program.
04.06 Drug Treatment Program
a. At management’s discretion, an employee may take a leave of absence to participate in an approved drug treatment program. Participation in such a program may be prior to or in response to: (1) failing the university’s testing program, or (2) an event outside the university’s testing program. Management may mandate participation in and successful completion of such a program as a condition of continued employment.
b. Management may grant leaves of absence to participate in a drug treatment program on a one-time basis for a period of up to 90 days unless extended by mutual agreement. All costs of the program are entirely at employee’s expense. Accrued sick leave, vacation, compensatory time or leave without pay will cover leave to participate in the program.
c. Upon completion of an alcohol or drug treatment program, the employee must present to the department head a written certification from the program verifying successful completion. The employee must also pass the university testing program before the employee can return to work. Failure to present the required written certification, to submit to testing, to pass the required testing, or any combination of the previous occurrences constitutes grounds for disciplinary action up to and including discharge. If the employee returns to work, he or she will submit to unannounced testing at the discretion of management.
04.07 Grants and Contracts
The person responsible for administering a grant or contract from any federal agency for the procurement of any property or services of a value of $25,000 or more must give a copy of this UPPS to each employee engaged in the performance of that grant or contract. As a condition of employment on such grant or contact, the employee must abide by the terms of this UPPS.
05. SUPERVISORY TRAINING
05.01 Each supervisor must participate in a minimum of 60 minutes of training on drug and alcohol abuse provided by a qualified substance abuse professional in a program approved by the Office of Human Resources as preparation for being able to determine if reasonable suspicion exists to suspect an employee of drug or alcohol use in violation of this policy.
06. REVIEWERS OF THIS UPPS
06.01 Reviewers of this UPPS include the following:
University Attorney March 1 E2Y
Director, Human Resources March 1 E2Y
Director, Equity and Access March 1 E2Y
Director, Alcohol and Drug Resource March 1 E2Y
Director, Sponsored Programs March 1 E2Y
Associate Vice President for Student March 1 E2Y
Affairs and Dean of Students
Chair, Staff Council March 1 E2Y
07. CERTIFICATION STATEMENT
This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.
University Attorney; senior reviewer of this UPPS
Special Assistant to the President