PAP.5.8.080 Drug and Alcohol Testing Procedures

All employees and applicants for employment are subject to drug and alcohol testing, including reasonable suspicion, pre-employment, and return-to-duty. Drug tests require laboratory testing as provided by the Mandatory guidelines for Federal Workplace Drug Testing Programs pursuant to 94 FR 28101, May 15, 2015 as amended, as minimum standards for the following classes of drug and correlative cutoff concentrations: Cocaine; Opiates including opium and codeine derivatives such as Oxycodone, Oxymorphone, Hydrocodone, Hydromorphone; Amphetamines and Methamphetamines including Methylenedioxyamphetamine (MDA) and Methylenedioxyethylamphetamine (MDEA); Phencyclidine (PCP). Nothing precludes the Human Resource Director, or designee, in testing for substances which are not included on this list, should the Health Director, or designee, determine it is in the best interests of the Tribe to include substances which are not listed above to ensure a drug free workplace. Employees are encouraged to contact the Human Resource Director, or designee, with any questions regarding drug and alcohol testing. Failure or refusal to participate in an employer-directed drug test is considered insubordination and the employee will be terminated for insubordination.

(a) General Drug and Alcohol Testing Procedures. In cases where an employee is required to undergo testing for the presence of alcohol or drugs including reasonable suspicion, pre-employment, and return-to-duty the following procedures shall apply:

(1) LCO-CHC using a licensed laboratory of the LCO-CHC choice that conducts substance abuse testing that is deemed appropriate by the Tribal Governing Board for business purposes; i.e., screening and confirmatory testing, will take a sufficient sample to assure that confirmation testing can occur in the event of an initial positive test result. The initial cost for this testing will be incurred by the Tribe.

(2) The laboratory evaluation of the samples will be carried out by a laboratory that is contracted with the LCO-CHC and is certified by either the College of American Pathologists or the National Institute on Drug Abuse.

(3) In the event of a positive test result, a confirmation test will be performed by a laboratory specified in Section PAP.5.8.080(a)(2) above, using the original sample (not a new sample). The confirmation test will be based on a different analytical method of higher analytical certainty.

(4) The employee within two (2) working days of the results must request any further confirmation testing (using the original sample) by a laboratory specified in subs. 1(a) above, in writing. Costs of confirmation testing incurred will be paid by the employee.

(5) The results of any drug or alcohol tests shall be kept confidential, except information shall be shared between departments as deemed necessary. All policies regarding employee personnel records shall be strictly adhered to and followed in accordance with the provisions of this Manual.

(6) A portable breath test (PBT) conducted by a Class 1 PBT Certified person of the LCO-CHC choice that is deemed appropriate by the Tribal Governing Board for business purposes shall be utilized for alcohol testing.

(b) Pre-Employment Testing Procedures.

(1) An applicant for employment will be required to undergo testing for illegal drugs and prescribed medication for which they do not have a valid prescription as a condition of employment. If the applicant is suspected to be under the influence of alcohol at the time of their pre-employment drug screen, a PBT may be requested.

(2) Applicants who test positive for alcohol, illegal drugs, and/or prescribed medication for which they do not have a valid prescription, shall be denied employment.

(3) An applicant who initially declines a drug test will be denied employment and not eligible for employment for 90 days.

(c) Probable Cause Testing Procedures.

(1) Upon a finding by an employee's department head or director that there is probable cause that the employee is either under the influence of alcohol (under the influence shall mean a blood alcohol concentration of 0.02 grams of alcohol per 100 milliliters of a person's blood or while the person has 0.02 grams of alcohol per 210 liters of a person's breath) or drug abuse that is impairing the employee's ability to carry out job-related activities, the employee shall be required to be tested for the presence of drugs or alcohol pursuant to Section PAP.5.8.080(c)(3), below. A finding of probable cause and directive requiring the employee to submit to testing for drugs or alcohol must be in writing signed by the employee's department head or director. The probable cause finding must be supported by evidence of specific, personal observations concerning job performance, appearance, behavior, speech, or bodily odors of the employee. If hearsay information is received, such information must be corroborated by personal observations, or observations and evaluation by the Executive Director, or designee.

(2) Once an employee's department head or director has determined that probable cause pursuant to Section PAP.5.8.080(c)(1), above exists, the employee's department head or director shall immediately contact the Human Resource Director, or designee and convey that one of his or her employees is under the influence of alcohol or a controlled substance and that such influence is impairing that employee's ability to carry out his or her job related duties.

(3) Upon receiving contact from an employee's department head or director, the Human Resource Director, or designee shall have the employee drug tested and if alcohol related have the employee submit to a portable breath test (PBT) conducted by a Class 1 PBT Certified person as specified in Section PAP.5.8.080(a)(6), above. If the employee refuses to take a test (including but not limited to a drug test, drug urine test, or PBT test) after being required to do so, the employee is thereby insubordinate and considered to be in violation of the Drug Testing Policy and shall be terminated.

(4) Upon receipt of a positive test result, the employee shall be immediately relieved of their duty station and will be subject to disciplinary action, Section PAP.5.8.080(f) below, and the positive test sample will be sent for a confirmation test result pursuant to Section PAP.5.8.080(a) above. In all cases, an employee may face legal consequences for his/her actions. Upon receipt of a positive confirmation test result pursuant to Section PAP.5.8.080(a) above, the employee shall be referred by the Human Resource Director, or designee to participate in the Employee Assistance Program pursuant to Section PAP.5.7.110(a) of this manual. Failure to comply and successfully complete an approved LCOCHC- Behavioral Health EAP treatment plan within the timeframe established in the treatment plan will result in termination.

(d) [Open.]

(e) Return to Duty Procedures. An employee returning to duty following a chemical dependency related leave of absence must receive a release by a licensed physician stating that the reasons for the employee being placed on leave have been resolved.

(f) Discipline for Drug Testing Violation. In all cases, an employee may face legal consequences for his/her actions.

(1) Any employee who uses (or is under the influence of) alcohol and/or drugs, possesses alcohol and/or drugs or intoxicants on Tribal property or while on duty will be subject to disciplinary action, up to and including termination as follows:

(A) First Offense: The employee will be informed of a first offense in writing and will be suspended three (3) days without pay.

(B) Second Offense: If a second offense occurs, the employee will be suspended five (5) days without pay. During the suspension, the employee must have a conference with the LCO-CHC's alcohol and drug counselor and undergo an assessment. If it is determined that the violation reflects a drug or alcohol abuse problem that is affecting the employee's job performance, then a plan of action will be developed by a licensed counselor and the employee. The licensed counselor will put the plan in writing and the plan will be approved for employment purposes by the employee's department head or director with final approval by the executive director. Failure to comply and successfully complete any approved LCO-CHC Behavioral Health EAP treatment plan will result in termination. Such termination shall not be subject to appeal.

(C) Third Offense: If a third offense occurs, the employee shall be terminated. Such termination shall not be subject to appeal.

(2) Any employee who refuses to take a test as established in Section PAP.5.8.080(a) will be considered insubordinate and will be terminated for insubordination. Such termination shall not be subject to appeal.

(3) Rehabilitation and Rehiring. Any employee who has been dismissed for violation of the Tribe's Drug Testing Policy may be eligible for re-employment after 90-days with the Tribe upon proof of rehabilitation provided by an accredited treatment facility that the person has been to treatment or has successfully completed appropriate treatment and is in recovery.