Employee Rights in the Workplace Fl by gnq53402

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									                   Florida Department of Transportation
     CHARLIE CRIST             605 Suwannee Street             STEPHANIE C. KOPELOUSOS
      GOVERNOR                                                       SECRETARY
                            Tallahassee, FL 32399-0450

POLICY                                                   Effective: July 19, 2007
                                                         Topic Number: 001-250-013-g
                                                         Reference: 112.0455, F.S.
                                                         59A-24, F.A.C.
                                                         60L-36.005, F.A.C.
                                                         41 USC 701
                                                         49 CFR Part 32
                                                         49 CFR Part 382, et.al.


       DRUG-FREE WORKPLACE AND TESTING POLICY
             (1)     Statement of Policy, Purpose, Authority and Applicability
             (2)     Dangers of Drug Abuse in the Workplace
             (3)     Definitions
             (4)     Prohibitions for All Employees
             (5)     Additional (USDOT) Prohibitions for CDL Drivers
             (6)     Corrective Action / Penalties
             (7)     Alcohol and Controlled Substances (Drug) Testing for All
                     Employees
             (8)     Alcohol and Controlled Substances (Drug) Testing for CDL Drivers
             (9)     Confirmed Positive Test Result Review Process
             (10)    Requirement to Report Workplace Criminal Drug Statute
                     Convictions
             (11)    Employee Rights
             (12)    Other Employee Provisions
             (13)    Reporting USDOT Drug Testing Results

1.    STATEMENT OF POLICY, PURPOSE, AUTHORITY, AND
      APPLICABILITY

      (A)    This drug-free workplace and testing policy for the State of Florida
             Department of Transportation (FDOT) has been adopted in accordance
             with the provisions of Section 112.0455, F.S., the Drug-Free Workplace
             Act; the implementing provisions of Agency for Health Care
             Administration (AHCA) Rule Chapter 59A-24, F.A.C.; Part 32 of Title
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            49, Code of Federal Regulations for required compliance with Federal
            Drug-Free Workplace Act of 1988 (41 USC 701); United States
            Department of Transportation (USDOT) / Federal Highway
            Administration (FHWA) Regulation, 49 CFR Parts 382, et. al.
            Controlled Substances & Alcohol Use and Testing; Rule Section 60L-
            36.005, F.A.C., of the Personnel System Rules and FDOT Procedure
            No. 250-012-011, Disciplinary Action.

     (B)    It is the policy of the Florida Department of Transportation (hereinafter,
            “the Department” or "FDOT") to provide a safe, dependable, drug-free
            workplace for employees. In meeting these goals, it is the Department’s
            policy to:

     1.     Assure employees are able (not impaired) to perform assigned duties in a
            safe, productive, and healthy manner;

     2.     Create a workplace environment free from the adverse effects of drug and
            alcohol abuse or misuse;

     3.     Prohibit the unlawful manufacture, distribution, dispensing, possession, or
            use of controlled substances; and

     4.     Encourage employees to seek professional assistance, whenever alcohol
            or drug dependency problems adversely affect their ability to perform
            assigned duties.

     (C)    The purpose of this policy is to assure worker fitness for duty and to
            protect the Department's employees, contracted drivers and the public
            from the risks posed by the misuse of alcohol and controlled substances.
            This policy is also intended to comply with all applicable Federal and State
            regulations, as referred to in Section 1.(A) above, governing workplace
            anti-drug programs.

     (D)    This policy applies to all Department employees, including part-time and
            OPS employees, and contracted drivers when they are on FDOT property
            or when performing job-related activities or business. This policy also
            applies to off-site lunch or break periods when the individual (employee or
            contracted driver) is scheduled to return to work.

2.   DANGERS OF DRUG ABUSE IN THE WORKPLACE

     At a national level, drug abuse, both alcohol and controlled substances, has
     serious adverse effects upon a significant portion of the work force resulting in
     billions of dollars worth of lost productivity each year and posing a threat to the
     workplace and to public safety and security. Drug abuse creates a variety of
     workplace problems, including increased injury on the job, increased


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     absenteeism, increased financial burden on health and benefit programs,
     increased workplace theft, decreased productivity, and a decline in the quality of
     products and services.

3.   DEFINITIONS
     For purposes of understanding this policy, the following definitions apply:

     (A)    “Alcohol Use” means the consumption of any beverage, mixture, or
            preparation, including any medication, containing alcohol.

     (B)    "Alcohol" means an intoxicating agent in beverage alcohol, ethyl alcohol,
            or other low molecular weight alcohols including methyl and isopropyl
            alcohol.

     (C)    "Appropriate Personnel Officer/Manager" means the Department's
            Personnel Resource Management Officer or the appropriate District
            Personnel Manager or their respective authorized designee.

     (D)    “CDL Driver” means any Department employee or contracted driver who
            operates a commercial motor vehicle for the Department and is required to
            be in possession of a valid commercial driver license (CDL). For the
            purposes of pre-employment testing, the term “CDL driver” includes job
            applicants for such positions.

     (E)    “Commercial Motor Vehicle (CMV)” means a motor vehicle or
            combination of motor vehicles used to transport passengers or property if
            the motor vehicle:

     1.     Has a gross vehicle weight rating (GVWR) of 26,001 or more pounds
            (11,794 or more kilograms); or

     2.     Has a gross combined weight rating (GCWR) of 26,001 or more pounds
            (11,794 or more kilograms) inclusive of a towed unit with a GVWR of more
            than 10,000 pounds (4,536 kilograms); or

     3.     Is designated to transport 16 or more passengers, including the driver; or

     4.    Transports hazardous materials requiring the vehicle to be placarded.

     (F)    "Confirmation Test" means:

     1.     For controlled substances testing, it means a second analytical procedure
            to identify the presence of a specific drug or metabolite which is
            independent of the screen test and which uses a different technique and



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      chemical principle from that of the screen test in order to ensure reliability
      and accuracy.

2.    For alcohol use testing, it means a second test following an initial
      (screening) test with a result that provides quantitative data of alcohol
      concentration.

(G)   “Contract Driver” means any person contracted and compensated by the
      Department to perform State business requiring the operation of a
      Department owned or leased commercial motor vehicle and the
      possession of a commercial driver license and not considered an
      employee of the Department.

(H)   “Controlled Substances” means any substance, including its
      metabolites, as defined in Section 893.02(3), F.S. For purposes of
      controlled substances testing, this term means the following five drugs and
      their metabolites (Substance Abuse DHHS (NIDA) Panel 5 drug screen):

      1.     Cannabinoids (Marijuana) (THC)
      2.     Cocaine
      3.     Opiates (including heroin)
      4.     Amphetamines
      5.     Phencyclidine (PCP)

(I)   “Designated Agency Authority” means the Secretary, the Assistant
      Secretaries, District Secretaries, or any representative thereof designated
      to authorize or require alcohol use and controlled substances (drug)
      testing.

(J)   "Designated Manager/Supervisor" means any appropriate level
      manager or supervisor selected and identified by the appropriate
      Designated Agency Authority within his or her respective jurisdiction.
      Normally such designated person would be an Office Head in the
      Central Office, a District Department Head or an Area/Resident
      Maintenance Engineer or their respective designee. This level
      manager (or supervisor) would normally not be the immediate supervisor
      of the employee or CDL driver, unless such individual was also a
      supervisor.

(K)   “Drug” means alcohol, and the controlled substances listed in (h) above.

(L)   “Drug Test or Test” means any chemical, biological, or physical
      instrumental analysis administered for the purpose of determining the
      presence or absence of a drug or its metabolites.




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(M)   “Employee” means any full-time or part-time employee in Career Service,
      Selected Exempt Service, Senior Management Service or one with trainee
      or OPS status.

(N)   “Employee Assistance Program” means an established program for
      employee assessment, counseling, and possible referral to an alcohol and
      drug rehabilitation program.

(O)   “Initial (Screening) Test” means:

1.    For controlled substance testing, it means an immunoassay screen to
      eliminate “negative” urine specimens from further consideration.

2.    For alcohol use testing, it means an analytical procedure to determine
      whether a driver may have a prohibited concentration of alcohol in his or
      her system.

(P)   “Refusal to Submit” (to an alcohol or controlled substances test) means
      an individual has:

1.    Failed to provide adequate urine for controlled substances testing without
      a valid medical explanation after he or she has received notice of the
      requirement for urine testing;

2.    Failed to provide adequate breath or blood without a valid medical
      explanation after he or she has received notice of the requirement for
      alcohol use testing; or

3.    Engages in conduct that clearly obstructs the testing process.

(Q)   “Medical Review Officer (MRO)” means a licensed physician responsible
      for receiving laboratory results generated by the Department’s drug testing
      program with knowledge of substance abuse disorders and has
      appropriate medical training to interpret and evaluate an individual’s
      confirmed positive test result together with his or her medical history and
      any other relevant bio-medical information.

(R)   “Substance Abuse Professional (SAP)” means a licensed physician
      (Medical Doctor or Doctor of Osteopathy), or a licensed or certified
      psychologist, social worker, employee assistance professional, or
      addiction counselor (certified by the National Association of Alcoholism
      and Drug Abuse Counselors Certification Commission) with knowledge of
      and clinical experience in the diagnosis and treatment of alcohol and
      controlled substances-related disorders.




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4.   PROHIBITIONS FOR ALL EMPLOYEES
     The following prohibitions constitute violation of this policy:

     (A)    No employee of the Department may work, report to work at the beginning
            of the workday or after the lunch period or break time under the influence
            of alcohol, any controlled substance or drug, except where prescribed by a
            physician, to the extent that the employee is prevented from satisfactorily
            carrying out his/her duties or responsibilities or as confirmed by a
            "positive" drug test result. This includes exhibiting signs of impairment
            such as slurred speech, odor of alcohol on one's breath, incoherentness,
            reduced mental faculties or other signs of physical impairment normally
            associated with drunkenness or abuse of drugs to the extent that the
            employee presents an unacceptable image of the Department to the
            public, his/her colleagues, supervisors or subordinate employees. The
            Department may require an employee to take authorized accrued leave if,
            as a result of taking prescribed medication, an employee is unable to
            satisfactorily perform his or her assigned duties.

     (B)    No employee may, during working hours; within any Department vehicle;
            at any Department facility, worksite, building or office; or on any adjacent
            yard, grounds, driveway or parking lot, use or be in the possession of any
            unlawful drug; consume any alcoholic beverage; or be in the possession
            of any open or unsealed container of an alcoholic beverage.

     (C)    The possession, with the intent to disburse, sell or distribute alcoholic
            beverages or controlled substances (drugs) on State property or on the
            job is prohibited. The actual sale or attempted sale (dealing) of a
            controlled substance (drugs) as defined in Section 893.02(3), F.S. in the
            workplace or on the job shall be considered grounds for immediate
            dismissal.

5.   ADDITIONAL (USDOT) PROHIBITIONS FOR CDL DRIVERS

     (A)    Alcohol Related Conduct

     1.     No CDL driver shall report for duty or remain on duty requiring the
            performance of safety-sensitive functions while having an alcohol
            concentration of 0.04 or greater. For purposes of this section, "safety-
            sensitive functions" means driving a commercial motor vehicle requiring
            a commercial driver's license including any on-duty time spent in the
            operation, maintenance or attendance of such vehicle.

     2.     No CDL driver who as a result of an alcohol use test, is found to have an
            alcohol concentration of 0.02 or greater, but less than 0.04, shall operate
            or continue to operate a commercial motor vehicle or perform related


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      safety-sensitive functions until the start of the CDL driver's next regularly
      scheduled duty period, but not less than 24 hours following the
      administration of the test or a retest shows the alcohol concentration has
      fallen below 0.02. If the CDL driver has an alcohol concentration of 0.04
      or greater, the CDL driver cannot return to a safety-sensitive function until
      he/she has been evaluated by a substance abuse provider (SAP) and has
      received treatment, if required by the SAP, and has been retested with a
      result below 0.02 alcohol concentration.

3.    No CDL driver shall use alcohol while performing safety-sensitive
      functions associated with the operation of a commercial motor vehicle nor
      perform such safety-sensitive functions within four hours after using
      alcohol.

4.    No CDL driver, required to take a post-accident alcohol test, shall use
      alcohol for eight hours following the accident, or until he or she undergoes
      a post accident alcohol test, whichever occurs first.

5.    No CDL driver shall refuse to submit to required post-accident, random,
      reasonable suspicion or follow-up alcohol tests.

6.    No supervisor or manager, having actual knowledge of any of the
      conditions in Section 5.(A) 1 - 5 above, shall permit the CDL driver to
      operate or continue to operate a commercial motor vehicle or perform
      related safety-sensitive functions.

(B)   Controlled Substances (Drug) Related Conduct

1.    No CDL driver shall report for duty or remain on duty requiring the
      operation of a commercial motor vehicle or the performance of related
      safety-sensitive functions, when the CDL driver uses any controlled
      substance, except when the use is pursuant to the instructions of a
      physician who has advised the CDL driver that the prescribed substance
      does not adversely affect the driver’s ability to safely operate a
      commercial motor vehicle.

2.    No CDL driver shall report for duty or remain on duty requiring the
      operation of a commercial motor vehicle or the performance of related
      safety-sensitive functions, if the CDL driver tests positive for controlled
      substances.

3.    No CDL driver shall refuse to submit to required post-accident, random,
      reasonable suspicion, return-to-duty or follow-up controlled substances
      tests.




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     4.    No supervisor or manager, having actual knowledge of any of the
           conditions in Sections 5. (B) 1-3 above, shall permit the CDL driver to
           perform or continue to operate a commercial motor vehicle or perform
           related safety-sensitive functions.

     5.    CDL drivers will inform their immediate supervisor or designated agency
           authority of any therapeutic drug use. It is the CDL driver’s responsibility
           to inquire of a personal physician or medical authority whether such
           medication will affect the driver’s ability to perform safety-sensitive
           functions. Such reporting by the CDL driver should occur as soon as
           possible and prior to performing safety-sensitive functions.

6.   CORRECTIVE ACTION / PENALTIES

     (A)   Consideration must be given to first referring the employee to an
           employee assistance program or an alcohol and drug rehabilitation
           program in all cases of the employee’s first violation of the alcohol and
           drug use prohibitions contained in this policy where such violation did not:

     1.    Cause or constitute an immediate and direct threat to human safety;

     2.    Constitute conduct unbecoming a state employee; or

     3.    Violate any possession of illegal drug laws.

     (B)   In all other cases, appropriate disciplinary action must be taken up to and
           including dismissal in accordance with the Disciplinary Standards and
           disciplinary provisions contained in Personnel System Rule Section
           60L-36.005, F.A.C., and the Department’s Disciplinary Action,
           Procedure No. 250-012-011. If injury to oneself or another person results,
           more severe disciplinary action must be considered. Injury to oneself
           resulting from being under the influence of alcohol or abuse of drugs may
           also result in the loss of all Workers’ Compensation benefits for such
           injury.

     (C)   If an employee is referred to an employee assistance program or an
           alcohol and drug rehabilitation program, the employee may be placed on
           leave status while participating in such a program. If placed on leave
           status, the employee shall first be permitted to use any accumulated paid
           leave credits prior to being placed on leave without pay. Failure on the
           employee’s part to participate in or to complete any required employee
           assistance program or alcohol and drug rehabilitation program, is grounds
           for dismissal in accordance with the provisions of Subsection 112.0455
           (8)(n)1., F.S.




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     (D)   Any CDL driver, required to take a post-accident alcohol test, who uses
           alcohol within eight hours following the accident or prior to undergoing a
           post-accident alcohol test, shall be deemed to have “refused to submit” to
           a drug test.

     (E)   Any refusal by a CDL driver or any other employee to submit to or report
           for a required alcohol or controlled substances test as authorized and
           established under the provisions of Section 112.0455, F.S., and the
           Department’s Drug-Free Workplace Policy, or as required by any
           applicable Federal regulation, is grounds for dismissal in accordance with
           Department Disciplinary Standard 60L-36.005(3)(h) F.A.C.

     (F)   No employee may be forcibly compelled to provide specimens for required
           drug tests. However, such refusal shall be considered a violation of
           Disciplinary Standard 60L-36.005(3)(h) and this policy.

     (G)   A law enforcement officer may be dismissed or disciplined for the first
           confirmed drug test result when illicit drugs, pursuant to Section 893.13,
           F.S., is confirmed. Refer to Section 10 below for all other employees' first
           positive confirmed drug test result.

7.   ALCOHOL AND CONTROLLED SUBSTANCES (DRUG) TESTING
     FOR ALL EMPLOYEES
     The following types of drug testing, in accordance with the provisions of Section
     112.0455, F.S., the Drug-Free Workplace Act, are authorized for all Department
     employees as provided for herein:

     (A)   Reasonable Suspicion

           The Department shall require an employee to submit to drug testing when
           there is a reasonable suspicion of drug use in violation of this policy.
           Reasonable suspicion drug testing shall not be required except upon the
           recommendation of a supervisor who is at least one level of supervision
           higher than the immediate supervisor of the employee in question. Among
           other things, such facts and inferences may be based upon:

     1.    Observable phenomena while at work, such as direct observation of drug
           use or of the physical symptoms or manifestations of being under the
           influence of a drug;

     2.    Abnormal conduct or erratic behavior while at work or a significant
           deterioration in work performance;

     3.    A report of drug use in violation of this policy, provided by a reliable and
           credible source, which has been independently corroborated;


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4.    Evidence that an individual has tampered with a drug test during his or her
      employment with the Department;

5.    Information that an employee has caused, or contributed to, an accident
      while at work; and

6.    Evidence that an employee has used, possessed, sold, solicited, or
      transferred drugs while working or while on the Department’s workplace or
      while operating State owned or leased vehicles, machinery, vessel or
      equipment.

(B)   When information is present that an employee has caused, or
      contributed to, an accident while at work, "reasonable suspicion" drug
      testing will be required if:

1.    The employee has caused or contributed to an on-the-job accident
      which resulted in injury to the employee or others, requiring professional
      medical treatment beyond first aid, and the employee exhibits any sign
      of impairment or any other "reasonable suspicion" criteria is observed
      and documented;

2.    The employee has caused or contributed to a vehicular accident and the
      employee exhibits any sign of impairment or any other "reasonable
      suspicion" criteria is observed and documented; or

3.    The employee has caused or contributed to any accident which resulted
      in a fatality to another.

(C)   Routine Fitness for Duty

      The Department shall require an employee to submit to a controlled
      substances (drug) test if the test is conducted as part of a routinely
      scheduled employee fitness-for-duty medical examination that is part of
      the Department’s established policy or that is scheduled routinely for all
      members of an employment classification or group.

(D)   Follow-Up Testing

      If the employee in the course of employment enters an employee
      assistance program for drug related problems, or an alcohol and drug
      rehabilitation program, the Department may require the employee to
      submit to a drug test as a follow-up to such program, and on a quarterly,
      semiannual, or annual basis for up to two years thereafter. Such
      scheduling of follow-up testing shall be determined by the Designated
      Agency Authority or his or her designee.


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8.   ALCOHOL AND CONTROLLED SUBSTANCES (DRUG) TESTING
     FOR CDL DRIVERS

           The following types of drug testing, required by the provisions of USDOT
           Regulation, 49 CFR Parts 382, Controlled Substances & Alcohol Use
           and Testing, are authorized for all Department CDL drivers as provided
           for therein:

     (A)   Pre-Employment (Pre-Duty) Testing

     1.    Prior to the first time a CDL driver / applicant performs commercial motor
           vehicle (CMV) safety-sensitive functions for the Department; the individual
           shall undergo testing for controlled substances. The individual must
           successfully pass such test. No selected applicant for a CDL position will
           be placed in that position until such applicant has either passed the
           controlled substances test or met the requirements in Section (A)2,
           below.

     2.    The Department will not test the CDL driver / applicant if:

           *      The individual is a current FDOT CDL driver; and

           *      Has no record of violations of the prohibitions contained in
                  Sections 4. or 5., in the previous 6 months; and

           *      Has successfully participated in the required drug testing program
                  within the previous 30 days; and

           *      Has either passed a USDOT controlled substance test in the
                  previous six (6) months, or

           *      Has participated in a random controlled substances testing program
                  for the previous twelve (12) months.

     3.    Required Documentation from Previous Employers. The Department
           is required to obtain, pursuant to a CDL driver's / applicant's consent, the
           following information, from the CDL driver's / applicant's previous
           employers for the preceding two years:

           a.     Any and all CDL driver's alcohol tests with a concentration result of
                  0.04 or greater;

           b.     Any and all positive controlled substances test results; and

           c.     Any and all refusals to be tested.


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4.   All CDL drivers / applicants, as a condition of employment
     (appointment, promotion or reassignment), will be required to provide
     written consent for their former employers to release to the Department
     the information required in Subsection 3, above. The CDL driver's /
     applicant's previous employers must maintain the required information
     under USDOT Regulation Subsections 49 CFR 382.401(b)(1)(I)
     through (iii). The Department must provide to each of the CDL driver's /
     applicant's employers of the two preceding years, his or her specific,
     written authorization for release of the information. Such release may be
     by use of a secured FAX machine.

5.   The Department shall not use a CDL driver to perform commercial motor
     vehicle (CMV) safety-sensitive functions if the Department obtains
     information from a previous employer that within the preceding two years,
     the CDL driver / applicant had: an alcohol use test with a concentration of
     0.04 or greater; a verified positive controlled substances test result; or a
     refusal to be tested by the driver, unless the Department obtained
     documentation of the CDL driver's subsequent return-to-duty authorization
     as a result of a substance abuse professional (SAP) evaluation and/or
     determination under USDOT Regulation Section 382.401(c)(4) and
     compliance with USDOT Regulation Section 382.309.

6.   The release of any of the information required in Subsection 3, above,
     may take the form of personal interviews, telephone interviews, letters,
     FAX copies or any other method of obtaining information that ensures
     confidentiality. The Department must maintain a written, confidential
     record with respect to each past employer contacted.

7.   The information required in Subsection 3, above, must be obtained and
     reviewed by the Department no later than 14 calendar days after the first
     time a CDL driver performs safety-sensitive functions for the Department,
     if it is not feasible to obtain the information prior to the driver performing
     safety-sensitive functions. The Department may not permit a CDL driver
     to perform safety-sensitive functions after 14 days without obtaining the
     information.

8.   The Department must make a good faith effort to obtain the information
     required in Subsection 3, above. The Department, upon making a good
     faith effort, but through no fault of its own, is unable to obtain the required
     information, may continue to use the CDL driver if it makes a note under
     Subsection 6, above, of the attempt. For instance, if a previous employer
     refuses, in violation of USDOT Regulation Section 382.405, to make the
     information available pursuant to the CDL driver's request, the Department
     should note the attempt to obtain the information and place the note with
     the CDL driver's other testing information.


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9.    If the CDL driver stops performing safety-sensitive functions for the
      Department before expiration of the 14 day period specified in
      Subsection 7, above, or before the Department has obtained the
      information required in Subsection 3, above, the Department must still
      obtain the information.

(B)   Post-Accident Testing

1.    As soon as possible following an accident involving a commercial motor
      vehicle, the Department shall test, both for alcohol and controlled
      substances, its surviving CDL driver if:

      a.     The accident resulted in a loss of human life; or

      b.     The Department's CDL driver was issued a moving vehicle violation
             citation arising from the accident.

2.    For the purpose of this policy section, "accident" means an incident
      involving a commercial motor vehicle in which there is either a fatality, an
      injury treated away from the scene, or a vehicle is required to be towed
      from the scene.

3.    The required post-accident alcohol test needs to be administered within 2
      hours following the accident. If the required alcohol test is not
      administered within 8 hours, efforts to conduct such tests will cease. In
      either case, a report must be prepared and maintained on file for USDOT
      stating the reasons the test was not promptly administered within the
      specified time.

4.    The required post-accident controlled substances test needs to be
      administered within 32 hours following the accident. If the required
      controlled substances test is not administered within 32 hours, then
      efforts to conduct such tests will cease and a report must be prepared by
      the Designated Manager/Supervisor (and maintained on file for the
      USDOT) stating the reasons the test was not promptly administered.

5.    In lieu of administering a post-accident test, the Department may
      substitute a breath or blood test for use of alcohol and a urine test for the
      use of controlled substances administered by on-site law enforcement
      officials under their separate authority, provided the Department can
      secure a copy of the test results.

6.     As specified in USDOT Regulations, no CDL driver, required to take a
      post-accident alcohol test, shall use alcohol for eight (8) hours following



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      the accident, or until he or she undergoes a post accident alcohol test,
      whichever occurs first.

7.    Any CDL driver, subject to post-accident testing, who leaves the scene of
      an accident before a test is administered or fails to remain readily
      available for testing shall be deemed by the Department to have refused
      to submit to testing. Such refusal is treated as if the CDL driver has a
      "verified positive" controlled substances test result or had an alcohol test
      result of 0.04 or greater. If the CDL driver refuses to submit to a post-
      accident test after a fatal accident, the USDOT will disqualify such driver
      for one year under the procedures in USDOT Regulation 49 CFR Part
      386.

(C)   Random Testing

1.    The selection of CDL drivers for random alcohol and controlled substance
      testing shall be made by a scientifically valid purely random method, such
      as a computer-generated random number table. Each CDL driver shall
      have an equal chance of being tested each time selections are made.
      The Department shall ensure that the required random alcohol and
      controlled substances tests are unannounced and the dates for
      administering such tests are spread reasonably throughout the year.

2.     Initially, the Department shall randomly select a sufficient number of CDL
      drivers, each calendar year, as follows: for random alcohol testing, a
      minimum of 25 percent of the average number of CDL driver positions;
      and for random controlled substances testing, a minimum of 50 percent of
      the average number of CDL driver positions. The percent of random tests
      required to be performed annually is subject to revision by the USDOT.

3.     The Department shall ensure that each CDL driver, who is notified of
      selection for random alcohol and/or controlled substances testing,
      proceeds to the test site immediately. CDL drivers actually driving a
      commercial motor vehicle at the time, will first be relieved of such duty to
      take the required test(s) as soon as possible.

4.    A CDL driver may only be tested for alcohol just before; while performing;
      or just after performing the safety-sensitive function. Random controlled
      substances testing may be performed at anytime while the CDL driver is at
      work for the Department.

(D)   Reasonable Suspicion Testing

1.    A CDL driver shall submit to alcohol use testing or controlled substances
      testing, or both, as circumstance dictates when the Department has
      reasonable suspicion to believe that the CDL driver has violated the


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      USDOT prohibitions, contained in Section 5, above, concerning alcohol
      use or controlled substances.

2.    Under USDOT regulation, only one supervisor is required to make the
      “reasonable suspicion” determination. That supervisor shall not, however,
      conduct the alcohol test on the CDL driver. Documentation of the grounds
      for "reasonable suspicion" to require a controlled substances test shall be
      made and signed by the supervisor within 24 hours of the observed
      behavior or before the results of the test are released, whichever is later.

3.    The reasonable suspicion determination must be based on specific,
      contemporaneous articulable observations concerning the appearance,
      behavior, speech or body odors of the CDL driver. In suspected cases of
      controlled substance use, the observations may include indications of the
      chronic and withdrawal effects of controlled substances. In suspected
      cases of alcohol use, the test must be initiated within 2 hours of the
      "reasonable suspicion" determination (observation) by the
      supervisor, or a report must be prepared by the Designated
      Manager/Supervisor (and maintained on file for the USDOT) stating the
      reasons why the test was not promptly administered.

4.    Training for Supervisors

       The Department shall ensure that each supervisor or person designated
      to make reasonable suspicion determinations receives at least 60 minutes
      of training on alcohol misuse and at least an additional 60 minutes of
      training on controlled substances use. The training must cover the
      physical, behavioral, speech and performance indicators of alcohol misuse
      and drug abuse.

(E)   Return-to-Duty Testing

      The Department shall ensure that any CDL driver, who violates any of the
      USDOT prohibitions, listed in Section 5, above, has successfully passed
      a retest for alcohol and/or controlled substances before returning to a
      safety-sensitive function.

(F)   Follow-Up Testing

1.    Following a determination that a CDL driver is in need of assistance in
      resolving alcohol misuse and/or drug abuse problems, the Department
      shall ensure the CDL driver is subject to unannounced follow-up alcohol
      use testing or controlled substances testing, or both, as directed by the
      substance abuse professional (SAP).




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     2.    The “recovering” CDL driver shall be subject to a minimum of six
           unannounced follow-up alcohol and/or controlled substances tests as
           required by the SAP in the first 12 months following the CDL driver’s
           return to duty. As deemed appropriate, the substance abuse professional
           (SAP) may direct additional tests during this period or for an additional
           period up to a maximum of 60 months from the CDL driver’s return to duty.

9.   CONFIRMED POSITIVE TEST RESULT REVIEW PROCESS

     (A)   Except for employees in law enforcement positions, the Department may
           not discharge, discipline, or discriminate against an employee on the sole
           basis of the employee’s first positive confirmed drug test, unless the
           Department has first given the employee an opportunity to participate in,
           at the employee’s own expense or pursuant to coverage under a health
           insurance plan, an employee assistance program or alcohol and drug
           rehabilitation program, and:

     1.    The employee has either refused to participate in the employee assistance
           program or alcohol and drug rehabilitation program or has failed to
           successfully complete such program, as evidenced by withdrawal from the
           program before its completion or a report from the program indicating
           unsatisfactory compliance, or by a positive test result on a confirmation
           test after completion of the program; or

     2.    The employee has failed or refused to sign a written consent form allowing
           the Department to obtain information regarding the progress and
           successful completion of an employee assistance program or alcohol and
           drug rehabilitation program.

     3.    Failure on the part of the employee to comply with the above provisions is
           sufficient grounds for dismissal. A second confirmed positive drug test
           result is grounds for immediate dismissal.

     (B)   Any employee in a safety-sensitive position will be placed in a non-safety
           sensitive position, or if such position is unavailable, on leave status while
           participating in an employee assistance program or alcohol and drug
           rehabilitation program. For purposes of this subsection, "safety-sensitive
           position" means any position, including a supervisory or management
           position, in which a drug-impairment would constitute an immediate and
           direct threat to public health or safety.

     (C)   Upon successful completion of an employee assistance program or
           alcohol and drug rehabilitation program, the employee shall be reinstated
           to the same or equivalent position that was held prior to such
           rehabilitation.



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10.   REQUIREMENT TO REPORT WORKPLACE CRIMINAL DRUG
      STATUTE CONVICTIONS

      (A)   For the purposes of this section the following definitions apply:

      1.    "Conviction" means a finding of guilt (including a plea of nolo contendere)
            or imposition of a sentence or both, by any judicial body charged with the
            responsibility to determine violations of federal or state criminal drug
            statutes.

      2.    "Criminal Drug Statute" means a federal or state criminal statute
            involving the manufacture, distribution, dispensing, use or possession of
            any controlled substance.

      3.    "Handicapped Individual" means any individual who has entered a drug
            abuse assistance or rehabilitation program and has stopped abusing
            drugs, as verified by a competent drug test, may not be discriminated
            against (disciplined) solely based on prior drug addiction or conviction.
            The definition of a “Handicapped Individual”, for purposes of this policy
            section, does not include:

            a.     An individual whose current use of alcohol or drugs prevents such
                   individual from performing the duties of the job in question; or

            b.     An individual whose employment, by reason of such current alcohol
                   or drug abuse, would constitute a direct threat to property or the
                   safety of others.

      (B)   The requirement to report workplace criminal drug statute
            convictions is found in Part 32 of Title 49 of the Code of Federal
            Regulations (49 CFR Part 32). This requirement is applicable to the
            Department, which is a recipient of federal funding,

      1.    Federal regulation requires each FDOT employee to notify the Department
            in writing within five calendar days of any personal criminal drug statute
            conviction for a violation occurring in the workplace.

      2.    Such reporting shall be made directly to the appropriate District Personnel
            Manager or the Department’s Personnel Resource Management Officer,
            who within two working days of such receipt, is responsible for notifying
            the appropriate District Director or Senior Management Services (SMS)
            Director or office head in the Central Office.

      3.    The appropriate District Director or SMS Director or office head shall notify
            the appropriate Federal agency in writing of such workplace drug
            conviction within ten calendar days after the Department’s receipt of the


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            employee’s notice or receipt by the Department of actual notice of such
            conviction.

      4.    The appropriate District Director or SMS Director or office head shall
            provide such notice, including the convicted employee’s position title to
            every Federal project officer or other designee on whose project/activity
            the convicted employee was working at the time of conviction, unless the
            Federal agency has designated a central point for receipt of such notices.
            In addition, such notice shall include the identification number(s) of each
            affected grant or cooperative agreement.

      (C)   Within 30 calendar days of receipt of such notice the appropriate District
            Director or SMS Director or office head shall:

      1.    Require such convicted employee to participate satisfactorily in a drug
            abuse assistance or rehabilitation program, or

      2.    Take appropriate disciplinary action up to and including dismissal,
            consistent with the requirements of the Rehabilitation Act of 1973 as
            amended.

      (D)   Notwithstanding the definition of a "handicapped individual" contained in
            subsection (11)(a)3., above, any personnel action which is taken must be
            consistent with Section 504 of the Rehabilitation Act of 1973, as
            amended (29 U.S.C. 794) and Personnel System Rule Section 60L-
            36.005, F.A.C., and the Department’s Disciplinary Action , Procedure
            No. 250-012-011.

      1.    An employee who has entered a drug abuse assistance or rehabilitation
            program and has stopped abusing drugs, as verified by a competent drug
            test, shall not be discriminated against, such as discipline, solely based on
            prior drug addiction or conviction.

      2.    Any action taken, whether referral or disciplinary, should be coordinated
            with the appropriate District Personnel Manager or the Department’s
            Central Personnel Resource Management Office.

      (E)   Failure to provide the reporting required in this section within the
            prescribed time frames is a violation of this policy section.

11.   EMPLOYEE RIGHTS
      (A)   An employee who receives a positive confirmed drug test result may
            contest or explain the result to the Department within five working days
            after written notification of the positive test result. If an employee’s
            explanation or challenge is unsatisfactory to the Department, the person


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            may contest the drug test result as provided by Subsections 112.0455
            (14) and (15), F.S.

      (B)   An employee of the Department or another employee within the executive
            branch of the State, who is disciplined or who is a job applicant for a
            special risk or safety-sensitive position and is not hired pursuant to the
            Drug-Free Workplace Act, may file an appeal with the Public Employees
            Relations Commission within 30 calendar days of receipt by the employee
            of the notice of discipline or refusal to hire. The notice shall inform the
            employee of the right to file an appeal, or if available, the right to file a
            collective bargaining grievance pursuant to Section 447.401, F.S.

      (C)   Employees have the right to consult with the drug testing laboratory for
            technical information regarding prescription and nonprescription
            medication. The Department will provide employees at the time of a
            required drug test, a current list of drug testing laboratories (and their
            addresses) certified by the Agency for Health Care Administration.

12.   OTHER EMPLOYEE PROVISIONS
      (A)   All information, interviews, reports, statements, memoranda, and drug test
            results, written or otherwise, received by the Department through a drug
            testing program are confidential communications and may not be used or
            received in evidence, obtained in discovery, or disclosed in any public or
            private proceedings, except in accordance with Section 112.0455 (11),
            F.S., the Drug-Free Workplace Act, and as required by appropriate
            USDOT regulations.

      (B)   Employees will be able to confidentially report the use of prescription or
            nonprescription medications both before and after being tested. A form
            will be provided for this purpose, and shall provide notice of the most
            common medications by brand name or common name, as applicable, as
            well as by chemical name, which may alter or affect a drug test.

      (C)   The names, addresses, and telephone numbers of employee assistance
            programs and local alcohol and drug rehabilitation programs may be
            obtained by contacting the Central Personnel Resource Management
            Office or District Personnel Office.

      (D)   It is the employee’s or job applicant’s responsibility to notify the drug
            testing laboratory of any administrative or civil action brought pursuant to
            the Drug-Free Workplace Act.

      (E)   Any questions regarding this drug testing policy statement should be
            directed to the Central Personnel Resource Management Office or District
            Personnel Office.


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      (F)    Policies, Procedures and Educational Materials for CDL Drivers

             The Department will provide policies, procedures and educational
             materials that explain the requirements of USDOT Regulation 49 CFR
             Part 382, Controlled Substances and Alcohol Use and Testing, and
             how the Department will meet the USDOT requirements. The Department
             will ensure a copy of the required material is distributed to each CDL
             driver prior to the start of the required testing and to each CDL driver
             subsequently hired or transferred to a position that requires driving a
             commercial motor vehicle.

13.   REPORTING USDOT DRUG TESTING RESULTS
The Department must prepare and maintain an annual calendar year summary of the
results of its USDOT-required alcohol use and controlled substances testing programs.
This report will be maintained in a Management Information System (MIS). If the
Department is notified to report during the month of January of a given year, the annual
calendar year summary report must be submitted to the USDOT by March 15th of that
year.




                                    www.dot.state.fl.us

								
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