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416 DRUG AND ALCOHOL TESTING

Mabel Canton Schools
Adopted 2000
Revised:

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. It is the belief of the school board that a work environment free of drug and alcohol use will not only be safer, healthier, and more productive, but will also be more conducive to effective learning. Therefore, 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 Minn. Stat. §§ 181.950 through 181.957.

II. GENERAL STATEMENT OF POLICY

A. The school district may request or require that any job applicant submit to drug and alcohol testing in accordance with the provisions of this policy and as provided in Minn. Stat. §§ 181.950 through 181.957.
B. The school district may request or require any employee to undergo drug and alcohol testing pursuant to this policy and as provided in Minn. Stat. §§ 181.950 through 181.957.
C. All school district employees and job applicants whose position requires 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.
D. The use, possession, sale, purchase, transfer, or dispensing of any drugs not medically prescribed 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 which are not medically prescribed 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 which are not medically prescribed are prohibited from entering or remaining on school district property.
E. Any employee who violates this section shall be subject to discipline which includes, but is not limited to, immediate suspension without pay and immediate discharge.
F. 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.
G. Any employee who violates this section shall be subject to discipline which includes, but is not limited to, immediate suspension without pay and immediate discharge.

III. DEFINITIONS

A. “Drug” means a controlled substance as defined in Minnesota Statutes.
B. “Drug and alcohol testing,” “drug or alcohol testing,” and “drug or alcohol test” mean analysis of a body component sample according to the standards established under one of the programs listed in Minn. Stat. § 181.953, Subd. 1, for the purpose of measuring the presence or absence of drugs, alcohol, or their metabolites in the sample tested.
C. “Employee” means any person, independent contractor, or person working for an independent contractor who performs services for compensation, either full-time or part-time, in whatever form, for the school district, and includes both professional and nonprofessional personnel.
D. “Job applicant” means a person, independent contractor, or person working for an independent contractor who applies to become an employee of the school district, and includes a person who has received a job offer made contingent on the person passing drug or alcohol testing.
E. “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 Minn. Stat. §181.953, Subd. 1.
F. “Random selection basis” means a mechanism for selection of employees that:

1. results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected; and
2. does not give the school district discretion to waive the selection of any employee selected under the mechanism.
G. “Reasonable suspicion” means a basis for forming a belief based on specific facts and rational inferences drawn from those facts.
H. “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.

IV. DRUG AND ALCOHOL TESTING

The school district may require drug and alcohol testing in accordance with this policy under the following circumstances:

A. Limitations on Testing.

1. The school district may not request or require an employee or job applicant to undergo drug and alcohol testing, except as authorized in this policy.
2. The school district may not request or require an employee or job applicant 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 which participates in one of the programs listed in Minn. Stat. § 181.953, Subd. 1.
3. The school district may not request or require an employee or job applicant to undergo drug and alcohol testing on an arbitrary and capricious basis.

B. Job Applicant Testing.
The school district may request or require any job applicant 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 which is contingent on the applicant 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.

C. Random Testing.
The school district may require only employees in safety-sensitive positions to undergo drug and alcohol testing on a random selection basis.

D. 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:

1. is under the influence of drugs or alcohol;
2. 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;
3. has sustained a personal injury, as that term is defined in Minn. Stat. § 176.011, Subd. 16, or has caused another employee to sustain a personal injury; or
4. has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

E. 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.
F. No Legal Duty to Test.
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.

V. RIGHT OF EMPLOYEE OR JOB APPLICANT TO REFUSE DRUG AND ALCOHOL TESTING AND CONSEQUENCES OF SUCH REFUSAL

A. Right of Employee or Job Applicant to Refuse Drug and Alcohol Testing.
Any employee or job applicant has the right to refuse drug and alcohol testing subject to the provisions contained in paragraphs B and C of this section.
B. Consequences of an Employee’s Refusal to Undergo Drug and Alcohol Testing.
Any employee 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.
C. Consequences of a Job Applicant’s Refusal to Undergo Drug and Alcohol Testing.
Any job applicant who refuses to undergo drug and alcohol testing pursuant to the Job Applicant Testing provision of this policy shall not be employed.

VI. DRUG AND ALCOHOL TESTING PROCEDURES

A. Rights of Employees and Job Applicants.

1. Before requesting an employee or job applicant to undergo drug or alcohol testing, the school district shall provide the employee or job applicant with a Pretest Notice form on which to (1) acknowledge that the employee or job applicant has seen the school district’s drug and alcohol testing policy, and (2) indicate any over-the-counter or prescription medications 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.
2. Within three (3) working days after notice of a positive test result on a con firmatory test, the employee or job applicant may submit information to the school district, in addition to any information already submitted, to explain that result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.

B. Test Results.

1. 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 (1) a negative test result on an initial screening test or of a negative or positive test result on a confirmatory test, and (2) the right of the employee or job applicant to request and receive from the school district a copy of the test result on any drug or alcohol test. In the case of a positive test result on a confirmatory test, the school district shall also, at the time of this notice, inform an employee or job applicant in writing of the rights to explain the results, to submit information, to request a confirmatory retest, to participate in treatment or counseling, and other rights provided in this policy, whichever are applicable.
2. Right to Test Result Report. An employee or job applicant has the right to request and receive from the school district a copy of the test result report on any drug or alcohol test.
3. Confirmatory Retests. An employee or job applicant may request a confirmatory retest of the original sample at the employee’s or job applicant’s 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 the employee’s or job applicant’s 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 transfer the sample to another laboratory licensed under Minn. Stat. § 181.953, Subd. 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.

VII. SCHOOL DISTRICT CHAIN-OF-CUSTODY PROCEDURES

The school district shall establish its own reliable chain-of-custody procedures to ensure proper record keeping, handling, labeling, and identification of the samples to be tested. The procedures must require the following:

A. 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;
B. 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;
C. a sample must be accompanied by a written chain-of-custody record; and
D. 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.

VIII. EMPLOYEE DISCHARGE AND DISCIPLINE

A. The school district may not discharge, discipline, discriminate against, or 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. 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.

B. 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:

1. 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 use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and
2. 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.

C. Notwithstanding paragraph A, 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.
D. The school district may not discharge, discipline, discriminate against, request, or require rehabilitation of an employee on the basis of medical history information revealed to the school district, unless the employee was under an affirmative duty to provide the information before, upon, or after hire.
E. An employee must be given access to information in the employee’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.

IX. WITHDRAWAL OF JOB OFFER

If a job applicant has received a job offer made contingent on the applicant 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.

X. PRIVACY, CONFIDENTIALITY AND PRIVILEGE SAFEGUARDS

A. 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.
B. Confidentiality Limitations.
Test result reports and other information acquired in the drug or alcohol testing process are, with respect to employees and job applicants, private data on individuals as that phrase is defined in Minn. Stat. Ch. 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.
C. Exceptions to Privacy and Confidentiality Disclosure Limitations.
Notwithstanding paragraphs A and B, 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 Minn. Stat. Ch. 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.

D. 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.

XI. NOTICE

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 passing drug and alcohol testing. The school district shall also post notice in an appropriate and conspicuous location on school district premises that the school district 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 the school district’s personnel office or other suitable locations.

XII. 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, 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. “Commercial motor vehicle” (CMV) includes a vehicle which is designed to transport 16 or more passengers, including the driver.
2. “Driver” includes full-time, regularly employed drivers, casual, intermittent or occasional drivers, leased drivers, and independent owner-operator contractors.
3. “Safety-sensitive functions” include driving time; all time loading and unloading vehicles, or supervising or assisting in the loading or unloading of vehicles; all time repairing, obtaining assistance to repair, or remaining in attendance during the repair of a disabled vehicle.

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 also provide the following information:
a. educational materials that explain the requirements of the federal regulations;
b. the identity of the person designated by the school district to answer questions about the materials;
c. the categories of drivers who are subject to testing;
d. information regarding what period of the workday the driver is required to be in compliance with the regulations;
e. information as to driver conduct that is prohibited by the regulations;
f. the circumstances under which the driver will be tested;
g. the procedures that will be used for testing;
h. the requirement that a driver submit to alcohol and controlled substances testing in accordance with the regulations;
i. an explanation of what constitutes a refusal to submit to the testing and the consequences for such a refusal;
j. the consequences for violating the regulations;
k. the consequences for drivers found to have an alcohol concentration of .02 or greater but less than .04; and
l. 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 drug problem; and available methods of intervening when an alcohol or drug problem is suspected, including confrontation, referral to an employee assistant program, and/or referral to management.

3. The school district shall provide written notice to representatives of employee organizations that the afore-described information is available.
4. The school district shall require each driver to sign a statement certifying that he or she has received a copy of the materials. The school district will maintain the original signed certificate and will provide a copy to the driver if the driver so requests.

D. Testing Requirements.

1. Pre-Employment Testing.

a. A driver shall undergo testing for alcohol and controlled substances 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. In order to be hired, the applicant must test negative.
d. If the driver tests positive for alcohol with a concentration greater than .04, the school district shall not permit the driver to perform any safety-sensitive functions. If the test result indicates a concentration of .02 or greater but less than .04, the driver shall not perform safety-sensitive functions for a period of at least 24 hours.

2. Post-Accident Testing.
As soon as practicable following an accident, the school district shall test the driver for alcohol and controlled substances if the accident involved the loss of human life or if the driver receives a citation for a moving traffic violation arising from the accident.

3. Random Testing.

a. The school district shall conduct tests on a random basis at unannounced times throughout the year.
b. The school district shall test for alcohol at a minimum annual percentage rate of 25% of the average number of driver positions, and for controlled substances, at a minimum annual percentage of 50%.
c. The school district shall adopt a scientifically valid method for selecting drivers for testing.

4. Reasonable Suspicion Testing.

a. The school district shall require a driver to submit to an alcohol test and/or controlled substances 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 on duty or within four hours before coming on duty.
b. The reasonable suspicion must be based on specific, contemporaneous, articulable observations concerning the driver’s appearance, behavior, speech, or body odors. The observations may include indications of the chronic and withdrawal effects of controlled substances.
c. Alcohol testing shall be administered within two hours following a determination of reasonable suspicion. If it is not done within two hours, the school district shall prepare and maintain a record explaining why it was not done.
d. The supervisor or school district official who makes observations leading to a controlled substances reasonable suspicion test shall make a written record of the observations within 24 hours of the observed behavior or before the results of the drug test are released, whichever is earlier.

5. Return-To-Duty Testing.
Before a driver returns to driving duty after engaging in conduct prohibited by the regulations, the driver shall undergo alcohol and/or controlled substances testing, depending upon the violation.

6. Follow-Up Testing.

When a substance abuse professional (S.A.P.) has determined that a driver is in need of assistance in resolving problems, the driver shall be subject to unannounced follow-up testing as directed by the S.A.P.

E. Retention of Records.

The school district shall maintain records in accordance with the following minimum periods:
Basic records 5 years
Collection records 2 years
Training records 2 years
Negative tests 1 year
Cancelled controlled substances tests 1 year
Alcohol with less than .02 concentration 1 year

F. Training.

The school district shall designate certain employees to make determinations of reasonable suspicion. The designated employees shall receive at least 60 minutes of training on alcohol misuse and at least 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.

G. Consequences of Prohibited Conduct.

1. The school district shall remove a driver who has engaged in prohibited conduct from safety-sensitive functions.
2. The school district shall advise a driver who has engaged in prohibited conduct of resources available for evaluating and resolving problems associated with misuse of alcohol and drugs.
3. Each driver shall be evaluated by a S.A.P., who shall determine what assistance, if any, the driver needs.
4. The driver must undergo Return-To-Work Testing before returning to duty.
5. If the driver is referred to rehabilitation, the S.A.P. will evaluate him or her to determine that the driver has followed the rehabilitation program. The driver will be subject to unannounced follow-up testing.

H. Prescription Drugs.
A driver shall inform his or her supervisor if at any time the driver is using a controlled substance pursuant to a physician’s prescription. Such 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.

I. Enforcement.

1. Any driver who refuses to submit to post-accident, random, reasonable suspicion, or follow-up testing shall not perform or continue to perform safety sensitive functions, and he or she may be subject to disciplinary action.
2. Drivers who test positive with verification of a confirmatory test shall be subject to disciplinary action, which may include immediate suspension without pay and/or immediate discharge.

Legal References: Minn. Stat. § 181.950 et seq. (Drug and Alcohol Testing in the Workplace) 49 C.F.R. Part 382
Cross Reference: MSBA Model Policy 403 (Discipline, Suspension and Dismissal of School District Employees), MSBA Model Policy 417 (Chemical Use/Abuse), MSBA Model Policy 418 (Drug-Free Workplace/Drug-Free School)

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