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HomeMy WebLinkAboutOrdinance No. 784 CITY OF THE COLONY, TEXAS ORDINANCE NO. 794 AN ORDINANCE OF THE CItY OF THE COLONY, TEXAS AMENDING THE CODE OF ORDINANCES BY AMENDING SECTION 16-1, BY ADDING CHAPTER IX TO THE PERSONNEL POLICIES AND PROCEDURES MANUAL FOR THE CITY OF THE COLONY; ADOPTING A CONTROLLED SUBSTANCE AND ALCOHOL ABUSE POLICY, DECLARING THE CITY OF THE COLONY, TEXAS, AS A DRUG-FREE WORK PLACE, AS PROVIDED FOR IN 41 U.S.C.A. SECTION 701, ET SEQ. (DRUG-FREE WORK PLACE ACT OF 1988) AND ADDING CHAPTER IX TO THE CITY OF THE COLONY EMPLOYEE PERSONNEL POLICY AND PROCEDURES MANUAL THEREBY INCORPORATING THE CITY OF THE COLONY'S CONTROLLED SUBSTANCE AND ALCOHOL ABUSE POLICY AS PART OF THE EMPLOYEE RULES AND REGULATIONS AS CONTAINED IN THE PERSONNEL POLICY AND PROCEDURES MANUAL, PROVIDING A SEVERABILITY CLAUSE AND DECLARING AN EMERGENCY. WHEREAS, drug and alcohol abuse is a source of concern for today's employers and employees alike with the estimated cost to the United States because of such drug and alcohol abuse in the work place due to lost productivity to be in the billions of dollars a year; and WHEREAS, users of illegal drugs and alcohol have a higher absentee rate than other employees and are more likely to be injured on the job, cause injury to fellow workers and to the general public; and WHEREAS, the City of The Colony is dedicated to providing a drug-free work place for its employees and believes that such a work place is in the best interests of its employees, the citizens of The Colony and the general public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION ONE. That Section 16-1 of the Code of Ordinances of the City of The Colony is hereby amended by adding Chapter IX to the Personnel Policies and Procedures Manual for the City of The Colony, adopting a Controlled Substance and Alcohol Abuse Policy. .SECTION TWO. That the Controlled Substance and Alcohol Abuse Policy contained herein is adopted as the official controlled substance and alcohol abuse policy of the City of The Colony, Texas. F~.,I2~LQJ~IJc~i~ That the City of The Colony, Texas, as provided for in 41 U.S.C.A. Section 701, et seq. (Drug-Free Work Place Act of 1988) is declared to be a drug- free work place.. ~ That Chapter IX is added to the City of The Colony Personnel Policy and Procedures Manual, said manual in all other respects shall remain in full force and effect. Chapter IX of the City of The Colony Personnel Policy and Procedures Manual shall read as follows: CHAPTER IX. CONTROLLED SUBSTANCE AND ALCOHOL ABUSE POLICY 9.01. POLICY (a) Effective immediately, any place the work and services of the City are performed is hereby declared a drug-free work place. (b) The unlawful or illegal use, possession, distribution, dispensation, sale, or manufacture of any controlled substance by an employee of the City is strictly prohibited and such use, possession, distribution, dispensation, sale, or manufacture of any controlled substance shall be a violation of this policy. Reporting for work or remaining at work while under the influence of any controlled substance is prohibited and shall be a violation of this policy. Any employee violating this policy shall be subject to disciplinary action. (c) An employee shall not consume alcohol while at work or while on City property or be in possession of an open container of an alcoholic beverage while at work or while on City property. An employee shall not transport any open container of alcohol in a City vehicle, or on City property. Reporting for work or remaining at work while under the influence of alcohol is prohibited and shall be a violation of this policy. Any employee violating this policy shall be subject to disciplinary action. Provided however this prohibition shall not apply to any employee of the Police Department who may consume or possess an alcoholic beverage as part of a specific investigation or as directed by a superior officer of the Police Department or who may possess or transport an alcoholic beverage as a result of any arrest, seizure or other routine Police activity. (d) This policy will not include drugs prescribed by a physician to an employee if the employee has been advised by the physician that he/she can safely perform their work while taking the prescribed drug and the employee is using the prescribed drug as directed by his/her physician. 2 (e) Employees have a right to know about the dangers of drug abuse and alcohol abuse in the work place, and what help is available to combat drug problems and alcohol problems. This Section spells out the City's policy, and all employees will receive a copy of this policy and be asked to acknowledge that they have read it and agree to abide by it in all respect. It is the City's objective to encourage and motivate employees with substance (both drug and alcohol) abuse problems to recognize and voluntarily seek professional assistance for these problems. (f) If any employee is convicted of violating a criminal drug statute, he/she will be required to notify the City within five (5) days of the conviction. Failure to inform the City subjects the employee to disciplinary action. By law, the City will notify any applicable federal granting agency within ten (10) days of receiving such notice from an employee or otherwise receiving notice of a conviction. State statute may supersede this paragraph in the case of public safety officers. (g) To the extent permitted by or contained in any employee benefit plan offered by the City to its employees, the City may offer employees convicted of violating a criminal drug statute participation in an approved rehabilitation or drug assistance program as an alternative to, or in conjunction with, any disciplinary action. Any employee either required to participate or electing to participate in such a program will be required to participate in and satisfactorily complete such a program as a condition of continued employment. (h) The City believes that whenever possible rehabilitation is the preferred solution to any substance abuse problem from all standpoints, as it both protects the City's investment in a trained employee, and treats the individual concerned with dignity for what in fact may be an illness. The City will therefore extend the rehabilitation option when available and whenever possible to an eligible employee. If an affected employee fails to avail himself or herself of such help and violations of this policy continue, the City will have little choice but to act severely against such violations up to and including termination. Any action taken by the City will be in the interests of protecting all of it's employees and the citizens of the City, and providing more cost efficient delivery of City service. 9.02. _DEFINITIONS (a) Accident an occurrence involving any City owned equipment or a City vehicle, (including a revenue service vehicle, whether or not such vehicle is in revenue service) resulting in death or injury to any person or property damage. 3 (b) Alcohol means alcohol or any beverage containing more than one- half of one percent of alcohol by volume which is capable of use for beverage purposes either alone or when diluted. (c) Disciplinary Action means any action taken against an employee for violating any provisions (including a first offense) of this policy and includes demotion, suspension, reduction in pay or classification, or dismissal from employment. (d) Drug means a controlled substance as defined by section 1.02 of the texas Controlled Substances Act and/or Section 202, schedules I through V of the Federal Controlled Substances Act, including but not limited to marijuana, hashish, cocaine, heroin, morphine, opiates, amphetamines, barbiturates, phencyclidine (PCP), and hallucinogens or any substance, if possessed by a particular employee would be illegal under any State or Federal law. (e) ~ means collection of a urine specimen or other body fluid specimen by medical personnel and a laboratory analysis of that specimen by Enzyme Immunoassay (EMIT) screening, Gas Chromatography/Mass Spectrometry (GS/MS) methods or other procedures, or the most current and appropriate technology or procedure. (f) Employee means all regular full-time, part-time, seasonal, and temporary employees of the City, including volunteer fire fighters and reserve police officers. (g) Medical review Officer means a licensed physician with knowledge of substance abuse disorders and appropriate medical training to interpret and evaluate an individual's test result together with his or her individual medical history and any other biomedical information. (h) Reasonable Cause means a conclusion based on personal observation by any person of specific objective instances of employee conduct, documented in writing, that an employee is unable to satisfactorily perform his/her job duties due to suspected use of drugs or alcohol. Such inability to perform may include, but is not limited to, a drop in the employees performance level, impaired judgment, reasoning, level of attention, behavioral change or decreased ability of senses. Physical characteristics indicating reasonable cause may be, among others, a pattern of abnormal or erratic behavior, physical symptoms such as glassy or bloodshot eyes, slurred speech, unsteady gait, poor coordination or reflexes, or direct observation of drug or alcohol use. Information provided by a 4 reliable and credible source or possession of drugs or alcohol will constitute a basis for reasonable cause. (i) Revenue Service Vehicle means a bus, car, van, railcar, locomotive, trolley car, trolley bus, ferry boat, or vehicle used on a fixed gnideway or incline plane used to transport passengers. (j) .Safety Sensitive Position means those positions (including the operation and/or maintenance of City vehicles or equipment e.g. Police and Fire Department vehicles) where employee use of drugs or alcohol could create a safety hazard and could cause injury or harm to the employee, or other employees or citizens or damage to property. (k) Security Sensitive Position means those positions that entail responsibility for City monies, materials, supplies, or other assets readily convertible to cash, and all executive, administrative and professional positions responsible for administrative and/or executive decision making. (1) Sensitive Safety Function means any duty related to the safe operation of mass transportation service by the City (including any operation for which the City is a recipient of a grant from Urban Mass Transportation Administration), including the operation of revenue service vehicle (whether or not such vehicle is in revenue service), controlling dispatch or movement of a revenue service vehicle, maintaining revenue service vehicles or equipment used in revenue service or directly supervising an employee who performs a sensitive safety function as outlined herein. 9.03. SUBSTANCES TO BE TESTED FOR When drug or alcohol screening is required under the provisions herein a urinalysis test or other suitable test will be given to detect the presence of drug groups including the following: THC (marijuana), cocaine, hashish, opiates (e.g., codeine, heroin, morphine), phencyclidine (PCP), amphetamines (e.g., speed), barbiturates (e.g., amobarbital, butibarbital, phenobarbital, secobarbital), methaqualone (e.g., quaalude), methadone, alcohol, and substances similar to those listed. 9.04. TESTING PROCEDURE (a) Notice. Employees subject to drug tests herein shall be informed that they will be tested, a particular drug or drug group may or may not be specified. (b) Laboratory.. A Qualified laboratory certified by the City shall do 5 the drug testing, following medically acceptable procedures. (c) Consent. Upon the adoption of this drug policy, all current employees of the City shall be required to execute a consent agreement stating that they have been informed of the City's policies and procedures as they apply to them and that they consent to drug testing as required by such policy and procedures. Before a drug and/or alcohol test is administered, employees and job applicants will be asked to sign a consent form authorizing the test and permitting the release of the information to those City officials with a need to know. The consent form shall provide space for the employees and applicants to acknowledge that they have been informed of the City's drug testing policy and to indicate the current or recent use of prescription or over the counter medication. (d) Confirmation of Test Results. An employee or applicant whose drug test yields a positive result shall be given a second test using a GS/MS test or similar test. If possible, the second test shall use a portion of the same test sample withdrawn from the employee or applicant for use in the first test. If the second test confirms the positive test result, the applicant or employee shall be notified of such result. In the case of an applicant he/she shall not be eligible for employment with the City and may not re-apply for a period of one (1) year. An employee shall be subject to disciplinary action. If the re-test yields a negative result, the employee or applicant will be deemed to have passed the drug test. All review, verification, and reporting of drug test results shall be performed by the medical review officer. (e) Securi _ty of d~ta The results of all drug or alcohol tests shall be treated in a highly confidential manner, and only those management and supervisory persons with a need to know shall be advised of test results. Ail written test results shall be mailed by the medical review officer to the Personnel Director in an envelope marked personal and confidential and only the Personnel Director shall examine this mall. Management and supervisory personnel with a need to know shall include the City Manager, City Attorney, Personnel Director, Department Head, Superintendent, and the employees immediate supervisor. 9.05. JOB APPLICANT TESTING AND NOTIFICATION 6 (a) Jobs Requiring Testing Applicants for all positions with the City will be required to pass a drug test as a condition of employment. (b) Notification Applicants will be notified of the drug testing component of the examination at the time of application and will be given the opportunity to withdraw their applications at that time or after receipt of the test results. Applicants will be notified that if hired, they will be subject to drug testing as employees as set forth in Section 9.06. (c) Consent An applicant will be requested to sign a consent form authorizing the testing and the use of the test results in employment decisions. (d) Refusal A job applicant refusing to take a drug test and/or sign a consent form will not be considered for employment, and such refusal will be a bar to employment with the City for a period of one (1) year. (e) Medical Prescriptions and Over the Counter Drug~ If an applicant is taking a medical prescription, the applicant must furnish a statement from a physician specifying the drug being taken. Applicants will also be required to list all over the counter medicines they are taking. If the physician statement and/or the list of over the counter medicines is submitted in advance of the drug test, the City will not reject an applicant having a positive drug test result because of the medical prescription or the over the counter medicines. (f) Promotions or Transfers Employees who seek transfers or promotions into other positions will not be required to submit to drug testing as a condition of transfer, unless they are transferring or promoting to a position which duties include a sensitive safety function or the position is a safety sensitive position or a security sensitive position. All employees seeking to promote or transfer to a safety sensitive position, security sensitive position or a sensitive safety function will be notified that they will be subject to the applicable provisions of Section 9.06. 9.06. CURRENT EMPLOYEE TESTING AND PROCEDURE (a) Notice All employees of the City will be notified of this policy, the drug testing procedures of the City and that violation of these policies will subject the employee to disciplinary action. (b) Reasonable Cause Testing Based upon reasonable cause, employees will be required to submit to testing for drug or alcohol use. Prior 7 to such testing, employees will be required to sign a form consenting to testing. Failure or refusal to sign the consent form or to submit to testing will be cause for a charge of insubordination and will result in disciplinary action, subject to applicable law. (c) A supervisor who has a reasonable cause to believe that an employee has taken, consumed, inhaled or injected a drug prior to reporting for work or while at work or has consumed an alcoholic beverage prior to reporting for work or while at work must: (i.) Prohibit the employee from working or continuing to work (including the operation of any equipment or vehicle). (ii.) Notify a department executive, division head or any sergeant or above of the Police Department of the City and request a personal observation and review of specific objective instances of employee conduct to confirm that reasonable cause exists. The employee will not be subject to testing without the confirmation of reasonable cause by a department executive, division head or the specified police official. (iii.) Transport the employee to the designated medical facility identified by the City for drug testing. After testing, arrangements should be made for the safe transportation to the employee's residence or place selected by a relative or friend of the employee. The supervisor must not allow the employee to drive at any time prior to the transportation to the employee's residence or place selected by a relative or friend of the employee. (iv.) Prepare appropriate documentation (including documentation of reasonable cause) and take appropriate disciplinary action. (v.) If facts and circumstances warrant, the employee should be encouraged to consult with their private physician concerning rehabilitation in addition to disciplinary action. (d) Post Accident Testing. An employee who is involved in an accident will be subject to the procedure set out in Section 9.06(b) above. If a post-accident drug test is required, the urine sample or other body fluid sample for such test shall be collected as soon as possible. (e) Current Employees Applying for Transfer or Promotion into a Sensitive Safety Function, A current employee of the City applying for 8 transfer or promotion into a sensitive safety function shall be required to pass a drug test. All notice and consent requirements set out in Section 9.04 and 9.05 above shall be met. (f) Return to Du_ty Testing. An employee who has refused to take or did not pass a drug test and has not been otherwise terminated, may not return to a safety sensitive position, security sensitive position or sensitive safety function until the employee passes a subsequent drug test and the medical review officer has determined that the employee may return to his or her safety sensitive position or security sensitive position or sensitive safety function. An employee who has been allowed to return to his/her position or function may be administered unannounced drug tests for up to sixty (60) months after the employee returns to a safety sensitive position, security sensitive position or sensitive safety function. (g) Testing Procedures for Sensitive Safety Functions. The laboratory conducting drug tests from employees or applicants for sensitive safety functions shall follow the chain of custody and testing procedures set out in 49 CFR Part 40. A copy of 49 CFR Part 40 is on file in the office of the City Secretary and in the City Personnel Department. 9.07. Compliance With the Americans With Disabilities Act of 1990 (4? USCA Sec. 12101, et seq.). This policy shall be administered and in conformity with the provisions of the Americans With Disabilities Act of 1990. Any person, including both an employee and an applicant for employment with the City who is found to be in violation of this policy and the provisions thereunder; who has failed to successfully complete a supervised drug rehabilitation program and is engaging in the illegal use of drugs or has otherwise not been successfully rehabilitated and is engaged in such use; who is not participating in a supervised rehabilitation program or has refused to participate in a supervised rehabilitation program and is engaging in such use; or who is regarded as engaging in such use and is engaging in such use shall not be considered as a qualified individual with a disability as defined in the aforesaid Act. SECTION FOUR. Should any word, sentence, clause, paragraph or provision of this ordinance be held to be invalid or unconstitutional, the remaining provisions of this ordinance shall remain in full force and effect. SECTION FIVE. The fact that the present ordinances of the City of The Colony do not provide for a policy and adequate procedures concerning substance abuse among City employees creates an urgency and an emergency for the preservation of the public health, safety and welfare and requires that this ordinance shall take effect immediately from and after its passage and publication, as the law in such cases provides. DULY PA~SS~ED AND APPROVED by the City Council of the City of the Colony, Texas on the /4P~ day of Dc~,Jn/3~ , A.D., 1992. ~OF tTH~ COLONY, TEXAS ATTEST: William W. Manning, Mayor ' Patti A. Hicks, CMC/AAE, City Secretary APPROVED: City Attorney 10