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HomeMy WebLinkAboutIR 7463 INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 �4f�oer�AA"OVIA'o May 15, 1990 To the Mayor and Members of the City Council PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: Subject: EMPLOYEE CO'MMENTS AND-CONCERNS On April 3, 1990, the City Council was given Informal Report No. 7449, titled: "Schedule for Implementation of Substance Abuse Testing Program." The City Manager and the Personnel Director gave a brief presentation, which was followed by discussion by the council and staff. At that meeting the City Council was given the timetable for the review, comment period and implementation of the substance abuse testing program. A draft of the proposed policy was distributed to department heads, employee organizations -and to all employees on April 3, 1990. The comment period ended May 1, 1990, with more than 30 comments submitted for consideration; three (3) of the eight employee organizations, the Fort Worth Chapter of the International Association of Black Fire Fighters , the Fort Worth Fire Fighters Association, and the Fort Worth Librarians Association, submitted comments , concerns , draft policies , etcetera. The Departments of Law and Personnel are incorporating suggested changes into a revised policy. It is anticipated the proposed policy will be brought to the City Council for adoption on May 29, 1990. The testing for final applicants is scheduled to begin on June 15, 1990. Random testing for sensitive positions would begin on July 15, 1990. Unless otherwise directed by the City Council, the staff will proceed with the implementation of the substance abuse testing program as outlined in the April 3, 1990, informal report. Employee Comments/Concerns and Management's Responses The comments and concerns of employees and employee organizations are summarized below. The staff response to those comments and concerns also are shown. The majority of comments favor the City's intention to adopt a policy which provides for alcohol and drug testing of final applicants and employees. 1. The policy requires testing of employees who occupy "sensitive positions", what positions are defined in the policy as "sensitive"? The policy definition of a sensitive position is: A position involving duties which if performed with inatten- tiveness, errors in judgment, or diminished coordination, dexterity, or composure could clearly result in mistakes that could present a real and imminent threat to the personal health and safety of the employee, co-workers , and/or the public , and which are performed with such independence that it cannot be reasonably assumed that those mistakes could be prevented by a supervisor or another employee. -ISSUED BY THE CITY MANAGER FOPT WnPTH, TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 JkTIA,0 Li f oRp To the Mayor and Members of the City Council may 15, 1990 f X Subject: PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: EMPLOYEE COMMENTS AND CONCERNS Positions which involve the operation of motor vehicles , mechanical equipment or power tools are included in this definition. Also, positions which involve the monitoring of plant operations and working in construction or on the streets or maintaining the water distribution system also are included in this definition. I Generally speaking, any position wherein the safety or health of an employee, co-workers or the public is potentially at risk would be included in this group. A list of the classifications included in this group has been compiled and after review by City Department Reads and the City Manager's Office , a final proposed list will be submitted for Council approval. The draft policy included in the sensitive positions group those wherein the handling of monies occurs and access to confidential information is present . Analysis of recent court decisions render the inclusion of such positions to be unacceptable. Therefore, the relevant provisions in the policy will be deleted. 2. Reasonable cause is a basis for testing and several of the comments expressed concern over the lack of specificity in defining what constitutes reasonable cause. Most of the respondents did not review the appendices associated with the policy regulation. Copies of the policy regulation were distributed to all employees ; the appendices associated with the policy were available in departmental administrative offices and the branch libraries. The matter of reasonable cause is fully explained in Appendix 5. 2. Section 5.2. 2 states, in part: The decision to test must be based on a reasonable and articulable belief by a supervisor who has been trained in the detection of alcohol and dangerous drugs evidenced by direct observation of specific, contemporaneous physical , behavioral, or performance indicators of probable use. 3. Testing based on reasonable cause is initiated when a supervisory staff person observes behavior indicative of probable use of alcohol/dangerous drugs ; therefore, concerns were expressed about training supervisory personnel in the detection of alcohol or drug use or their influence on employees at the workplace. Training will be provided to appropriate supervisory personnel before the reasonable cause provisions of the policy are implemented . Resource persons to provide the training will be identified and coordinated through the City's EAP Coordinator. Training will begin immediately upon adoption of the program by the City Council. -ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 ,00TIA,o May 15, 1990 OR), To the Mayor and Members of the City Council X Subject: PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: (all EMPLOYEE COMMENTS AND CONCERNS To ensure maximum effectiveness of the program, training will be provided to upper level management down to the crewleader level. Verifying that training has been understood through some examination process is being considered. The policy provides for a departmental substance control officer who would receive additional in—depth training and serve as a resource person to departmental supervisory personnel. 4. Reference to investigations into alleged workplace alcohol or substance abuse violations is made in the policy. The question of who would conduct these investigations was raised. Depending upon the particular situation, investigations may involve the Police Department, departmental management, a substance control officer, the medical review officer or designee with guidance from the Departments of Law and Personnel. A concerted and coordinated effort on the part of several City entities will probably be required to ensure proper and fair conclusions are drawn in each investigation. Some incidents may involve possible criminal violations and other incidents may only require management intervention. 5. The policy includes the phrase "discipline , up to and including termination". Some respondents believe any violation should result in immediate termination and others asked who would decide what disciplinary action would be taken. A major premise of the policy is the desire to rehabilitate employees who suffer from the problem of addiction. Employees who voluntarily refer themselves for assistance and those who upon detection express a desire for help will be disciplined by undergoing a stringent rehabilitation program. In those instances where an employee fails an alcohol or drug test and the employee refuses to cooperate through participation in a rehabilitation effort will subject themselves to termination. Due to the complex nature of the problem of alcohol and substance abuse in the workplace, the guidelines for discipline must provide management with a degree of flexibility. Mitigating factors may arise in specific cases and management needs to have an array of options to address each case which arises. 6. Some comments received from Police officers expressed dismay over the fact that criminal activities described in the policy did not include references to the intervention of law enforcement agencies. ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 ,Fk T I it, May 15, 1990 VORP To the Mayor and Members of the City Council 4 X, Subject: PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: 187 EMPLOYEE COMMENTS AND CONCERNS Although the policy regulation does not reference law enforcement agency intervention, an appendix to the policy provides for such intervention. Appendix 5 . 2 , section 5 . 2 . 3 addresses the sale , distribution , transportation or manufacture of drugs in the workplace: The matter should be turned over to law enforcement authori- ties at the earliest possible time and a request made of such authorities to investigate. Whenever appropriate , law enforcement agencies will be called upon to investigate suspected criminal activity. 7. The inclusion of random drug testing of employees who oc-cupy sensitive positions is believed to be unconstitutional by several respondents. Random testing has been upheld by the Supreme Court as meeting constitutional standards where the entity doing the testing can show a compelling need for controlling and deferring substance abuse such as in a public and employee safety context. 8. The requirement that final applicants and employees sign a consent form before being tested was considered to be meaningless because refusal to be tested results in a withdrawal of a job offer or disciplinary action including termination. Persons asked to sign a consent form may indicate either their consent or refusal to be tested. If a person refuses to mark or sign the form, appropriate actions will be taken in accordance with policy. Final applicants who refuse will forfeit the employment offer made and employees who refuse will be disciplined (in most cases termination will result). 9. Comments received from employees in the Police Department questioned the legality of conducting tests for alcohol without a criminal basis. Breathalyzer machine certification is currently limited under state law to DWI cases, but that does not pose a legal impediment to use in an administrative setting where no criminal penalties are involved. The administrative breath-alcohol-analysis unit will be a separate unit, not used for criminal detection testing. Because of alcohol's extraordinarily quick dissipation from the human system, a 24-hour-a-day facility will be necessary, so that testing and results can be promptly achieved. For this reason, the Police Department is the best and really only choice available. 10. The question of identifying cutoff levels for alcohol and drugs was raised by some respondents. -ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS ` INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 May 15, 1990 To the Mayor and Members of the City Council Subject: PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: EMPLOYEE COMMENTS AND CONCERNS The proposed policy is essentially identical to the policy promulgated by the U.S. Department of Health and Human Services, which is the policy adopted by the U.S. Department of Transportation. The cutoff levels for those drugs being tested for are presented below: With regard to alcohol levels, these policies cite the U.S. Coast Guard guidelines which do not contain a cutoff level for alcohol. Consideration is being given to utilize the 0.10% blood alcohol content standard which is the standard which is being used by most state jurisdictions throughout the 11. The maintenance of confidentiality with regard to drug test results was an expressed concern of several employees. The critical need for confidentiality is recognized and shared by management . Section 3. 15 of the policy regulation is titled , "Confidentiality, Records and Retention." The text of this section is presented below. Confidentiality, Records and Retention - All information related to the alcohol and drug testing of individuals will be held in strict confidence consistent with the provisions of applicable law. The EAP and the Occupational Health Clinic shall be responsible for retaining all confidential records relating to the substance abuse program which include training, testing, disciplinary actions, rehabilitation, appeals , and litigation. All documentation which contains information related to an employee 's positive test result , such as documentation of disciplinary actions, should be maintained in a locked file separate and apart from that employee 's standard personnel file. All records of individuals who pass a test will be retained for at least five years . These records include all records related to each individual, i .e . , training, testing, disciplinary action including termination, documentation of post-accident and reasonable cause determinations, consent forms, rehabilitation, appeals and litigation. 12. The policy refers to a Medical Review Officer and inquiries regarding the identity and role of this position were included in the comments. -ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS _ ` INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 T I May 15, 1990 To the Mayor and Members of the City Council X Subject: PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: EMPLOYEE COMMENTS AND CONCERNS Appendix 5.1 defines important terms and positions referenced in the policy regulation. The Medical Review Officer is defined as follows: A designated Occupational Health Clinic nurse retained by the City to evaluate laboratory res�lts generated by the City ' s program who has knowledge of substance abuse disorders, and appropriate medical training to interpret and evaluate an individual's positive test result together with other relevant biomedical information. This definition will be changed by identifying the officer as a licensed physician, either contracted by or employed by the City of Fort Worth, who will have administrative responsibilities to oversee the work performed by Registered Nurses assigned to the Occupational Health Clinic who will be involved with the collection of specimens for testing and the interpretation and evaluation of test results. 13. Some comments suggested the adoption of an alcohol and substance abuse policy presumes the guilt of applicants and employees. It may be perceived by some that the policy presumes guilt of applicants and employees, however, the introductory paragraph in the City Manager's cover letter to the proposed policy clearly expresses the reasons why the policy is needed: The City of Fort Worth is proposing a drug and alcohol testing program in order to maintain a safe work environment and to deliver effective, quality services to our citizens. As a public employer, the City of Fort Worth is entrusted with the health and safety of its citizens. The presence of drugs and alcohol in the workplace and the influence of these substances on employees during working hours is inconsistent with effective city government. Given the grave responsibility carried by the City and the fact that alcohol and substance abuse are societal ills of epidemic proportions, it is the City's belief the program being adopted will serve as a deterrent to substance abuse in the workplace. Unfortunately, the innocent non-user must be tested to identify those who are substance abusers. 14. The possibility of false positives and the resultant "labeling" of employees or applicants was a concern to some respondents. This is a very legitimate and understandable concern. As noted in item number 11 above' confidentiality will be strictly enforced and maintained. Unless the person tested reveals his/her test results, this information will not be disclosed. -ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 May 15, 1990 U,,R T I ft,0 To the Mayor and Members of the City Council PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: X Subject: EMPLOYEE COMMENTS AND CONCERNS The likelihood of false positives, that is, having a test result indicate that a person has alcohol or a drug in his/her system above the cutoff level when in fact the substance is not in his/her system is extremely small. Initial tests use an immunoassay screen and any positive result is confirmed by using gas chromatography/mass spectrometry tests whose accuracy and reliability are extremely high. Therefore, this "double testing" greatly reduces the probability of obtaining erroneous results. The judicial, medical and scientific professionals all concur that the reliability of this procedure approaches infallibility. 15. The cost of implementing an alcohol and drug testing program was a concern in light of the fiscal pressures being borne by the City. The cost of implementing the program will be fairly minimal, especially in light of the reduction in hiring activity. The estimated cost for initial drug screens is $17.00 per test. The estimated cost for confirmatory tests is $28.50 per test. According to an analysis conducted by the City ' s Occupational Health Clinic, the cost of the program for next year will be approximately $35,000. 00"k The cost of rehabilitation programs will vary and the City' s health insurance program will cover most costs associated with rehabilitation. The expected cost benefits of instituting the program include a reduction in lost time injuries , a reduction in absenteeism, an increase in productivity and a reduction in third party claims brought against the City because of employee actions influenced by alcohol or drugs while on the job. 16. Will employees in the Health Department who are "State employees" be subject to the policy? In the past, employees paid by the State and assigned to work in the City- County Health Department are subject to the City Personnel Rules and Regulations according to State of Texas Health Agency's personnel officials and it is anticipated such employees are covered by the policy. However, the Personnel Department is seeking further clarification of the status of these employees from State Health Officials. 17. Some respondents believe any employee that tests positive for drugs should be terminated without recourse to enter a rehabilitation program. As noted in item number 5, the rehabilitation of employees is a valued goal of the policy. To disregard the time, money and training invested in an employee would be fiscally irresponsible. The devastating impact of alcohol and drugs upon our community must be addressed in a positive , ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7463 ,0i T I May 15, 1990 �p,,Eoer,�Q� To the Mayor and Members of the City Council �rEx�y« PROPOSED ALCOHOL AND SUBSTANCE ABUSE TESTING PROGRAM: fell Subject: EMPLOYEE COMMENTS AND CONCERNS corrective manner. To merely terminate a person creates economic pressures upon the community and ignores the fact that addiction is a disease that can be treated and can be overcome if a person is committed to seeking help. The proposed policy recognizes there is hope and addiction can be overcome. To address the problem of alcohol and drug abuse through intervention is the socially and ethically responsible course of action to take. David Ivory 'or City Manage/ -ISSUED BY THE CITY MANAGER FORT WqRTH, TEXAS