Date enacted or revised:
April 2, 2007; Revised February 2016
McNeese State University believes that the workplace should be free from the risks associated with the use of alcohol and drugs and is committed to providing a safe and healthy environment for employees, students, and the general public. Employees are prohibited from reporting to work or performing work for McNeese with the presence in their bodies of illegal drugs, controlled substances, or designer (synthetic) drugs. Employees are further prohibited from the illegal use, possession, dispensation, distribution, manufacture, or sale of controlled substances, designer (synthetic) drugs, and illegal drugs at the work site and while on official state business, on duty or on call for duty. Certain employees could be subjected to alcohol or drug testing under both federal and state laws. For the purposes of this policy, drug testing may include tests for the presence of alcohol or other drugs.
The purpose of this testing is to establish employer-based alcohol and controlled substance testing programs to help prevent accidents and injuries results from the misuse of alcohol and controlled substances by drivers of commercial motor vehicles. According to Louisiana Revised Statute 49:1001-1002, McNeese State University is authorized to proceed with drug testing of employees. The context of this policy will be pursuant to this Statute and to the Drug-Free Schools and Communities Act of 1986, the federal Drug-Free Workplace Act of 1988, the Drug-Free Public Housing Act of 1988, the Louisiana Drug Testing Act of 1990, the Omnibus Transportation Employee Testing Act of 1991, the Federal Highway Administration (FHWA) procedures, Title 49 CFR Part 40 and Part 382 et al., Louisiana Revised Statutes 23:1081 and 1601, 30:2173(2), 32:1502(5), Executive Order MJF 98-38, and all other applicable federal and state laws.
Louisiana R.S. 49:1001, et. seq. defines an employee as any person, paid or unpaid, in the service of an employer. Specifically, the person may be classified, unclassified, probationary (rehabilitation), temporary, or non-temporary in a safety-sensitive and/or security-sensitive position. Drug testing may be performed on three categories of employees/applicants for employment.
1. Positions covered by federal law
This policy applies specifically to all current W-2 employees of McNeese State University whose job requires them to drive commercial motor vehicles. Additionally, this policy applies to all persons (external and internal) who have made written application for positions which will require them to drive commercial motor vehicles. This group of employees and applicants is subject to drug testing pursuant to federal law (Department of Transportation/Federal Motor Carrier Safety Administration Alcohol and Drug Testing Regulations (Title 49 CFR)). Information regarding positions that require Department of Transportation (DOT) testing is available in the Office of Human Resources and Student Employment.
2. Positions covered by state law: LA Drug Testing Action of 1990, Executive Order NO/ MJF 98-38, R.S. 49:1001, et. seq.
This policy applies to all current W-2 employees and volunteers of McNeese State University including unclassified, classified, and student employees. Additionally this policy applies to all persons (external and internal) who have made application for positions at McNeese State University. Pre-employment testing will be done post-job offer and prior to starting work.
3. Positions with related requirements regarding drug testing
Faculty, staff, and students who participate in programs that require drug testing (nursing, etc.) will be tested in accordance with specific protocol for the discipline or program for drug testing.
Alcohol: No employee shall report for duty or remain on duty in any position requiring the performance of safety-sensitive or security-sensitive functions while having an alcohol concentration of .04 or greater.
On-duty use of alcohol: No employee shall use alcohol while performing safety -sensitive or security-sensitive functions.
Pre-duty use of alcohol: No employee shall perform safety-sensitive or security-sensitive functions within four hours after using alcohol.
Use of alcohol following an accident: No employee required to take a post-accident alcohol test shall use alcohol for eight hours following the accident, or until he/she undergoes a post -accident alcohol test, whichever occurs first.
Controlled substances use: No employee shall report for duty or remain on duty requiring the performance of safety-sensitive or security-sensitive functions when the employee uses any controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner, who has advised the employee that the substance will not adversely affect the employee's ability to safely perform his/her duties.
Controlled substances testing: No employee shall report for duty, remain on duty or perform a safety-sensitive or security-sensitive function, if the employee tests positive for controlled substances.
Refusal to submit to a required alcohol or controlled substance test: No employee shall refuse to submit to a post-accident alcohol or controlled substances test required under Title 49 CFR , Sec. 382.303, a random alcohol or controlled substances test required under Sec. 382.305, a reasonable suspicion of alcohol or controlled substances test required under Title 49 CFR , Sec. 382.307, or a follow-up alcohol or controlled substances test required under Title 49 CFR , Sec. 382.311.
Drug and Alcohol Testing for Employment (federal and state law may apply)
It should be noted that the term “safety-sensitive function” as used throughout this portion of the policy has a very specific definition under federal law (The Drug-Free Workplace Policy, Section II-Definitions) and should not be confused with the broader “safety-sensitive position” terminology used in LA R.S. 49:1015.
The University covers the initial cost of drug/alcohol testing. The cost of subsequent testing following a positive result may be the expense of the employee.
The six situations when employers must test employees for alcohol and/or controlled substances under federal law are as follows:
1. Pre-Employment: Prospective employees may be required to submit to drug screening at the time and place designated by the Human Resource Director following a job offer contingent upon a negative drug-testing result. Pursuant to R.S. 49:1008, a prospective employee who tests positive for the presence of drugs in the initial screening shall be eliminated from consideration for employment, and an applicant who refuses to submit to a pre-employment test will not be hired.
2. Post-accident: For an employee with a commercial driver's license covered by the Federal Highway Administration, a post-accident test will be conducted for the employee driver of an accident involving a loss of human life or where the driver receives a motor traffic violation. A collision or occurrence meets the definition of an "accident" when the incident involves a motor vehicle operating on a public road which results in a death or bodily injury to a person who immediately receives medical treatment away from the accident; or one or more vehicles is disabled and must be towed from the scene.
Each employee involved in an accident during the course and scope of employment shall be required to submit to a drug test if the accident a) involves circumstances leading to a reasonable suspicion of an employee’s drug use, b) results in a fatality, or c) results in or causes the release of hazardous waste as defined in R.S. 30:2173(2) or hazardous materials defined in R.S. 32:1502(5).
A driver subject to post-accident testing must remain available, or the employer may consider the driver to have refused to submit to testing. The driver subject to post-accident testing must refrain from consuming alcohol for eight hours following the accident, or until he/she submits to an alcohol test, whichever comes first. An employee who is asked to submit to drug/alcohol testing as a result of reasonable suspicion or post-accident will be escorted to the testing facility by a University Police officer. The employee will be placed on administrative leave either paid or unpaid pending test results and/or mitigating circumstances. The employee may not return to duty until notified to do so by the Director of Human Resources and Student Employment.
The Federal Motor Carrier Safety Administration will disqualify drivers for one year, under the procedures in 49 CFR Part 386, if a driver refuses to submit to a post-accident test after a fatal accident. A second test confirmed positive will result in termination of employment.
3. Random: Every employee in a safety-sensitive or security-sensitive position shall be required to submit to drug testing as required by the Appointing Authority, who shall periodically call for a sample of such employees, selected at random by a computer generated random selection process, and require them to report for testing. All such testing shall, if practicable, occur during the selected employee’s work schedule.
4. Reasonable Suspicion: A supervisor's belief must be based on specific, contemporaneous, articulable observation concerning the appearance, behavior, speech, or body odors of the driver. One supervisor can determine reasonable suspicion; however, such determination should be confirmed by a second employee when possible. Employer representatives designated to determine whether reasonable suspicion exists must receive at least 60 minutes of training on alcohol misuse and an additional 60 minutes of training on indicators of probable controlled substance abuse. An employee who is participating in a substance abuse after-treatment program or who has a rehabilitation agreement with the agency following an incident involving substance abuse shall be required to submit to random drug testing.
5. Return-to-duty: An employee who has violated a prohibition on alcohol or controlled substance use must have a negative alcohol or controlled test before returning to duty. A driver who refuses to submit to a return-to-duty test will not be returned to duty.
6. Follow-up Testing: A safety-sensitive employee who has been identified as needing assistance in resolving problems associated with alcohol misuse or controlled substances use is subject to follow-up testing. The number and frequency of such follow-up tests is determined by the substance abuse professional and consists of at least six unannounced tests in the first year. The substance abuse professional may terminate this requirement or continue follow-up testing for four years.
7. Alcohol testing may be required in all of the above conditions except pre-employment as specified in Title 49 CFR Part 40. Following a determination that an employee has misused alcohol, the employee will be removed from safety-related functions.
The University is bound to take all appropriate actions against violators, including referral for legal prosecution and/or requiring an employee to participate satisfactorily in an approved drug/alcohol abuse assistance or rehabilitation program. The University provides assistance to employees with drug-related problems through its Employee Assistance Program available through insurance providers. This program provides free initial evaluation and referral. Subsequent sessions are the financial obligation of the employee and may qualify for coverage in the State Employees' Group Benefits Program for those who are members. Those employees who voluntarily seek assistance from the Assistance Program are assured that professional standards of confidentiality will be maintained. In some cases of first violation of this policy for unlawful use, an employee may be given, at the discretion of the University, the option to participate satisfactorily in an approved drug or alcohol abuse assistance or rehabilitation program in lieu of dismissal. Participation in such an assistance or rehabilitation program is at the expense of the employee. The option shall not be available for subsequent violations of the policy.
Each violation and alleged violation of this policy will be handled on an individual basis, taking into account all data, including the risk to self, fellow employees, students, and the general public. All disciplinary measures against tenured employees/faculty members or against those employed for a specific term will be carried out in accordance with rules governing those situations specific to employee type.
This policy prohibits any alcohol misuse that could affect performance of driving a commercial motor vehicle (CMV) including: (1) use on the job; (2) use during the 4 hours before driving a CMV; (3) having prohibited concentrations of alcohol in the system while driving a CMV; (4) use during 8 hours following an accident; and (5) refusal to take a required test.
This rule requires reasonable suspicion, random, post-accident, return-to-duty and follow-up testing using procedures specified in Title 49 CFR Part 40. These procedures use an evidential breath testing for alcohol testing.
Following a determination that an employee has misused alcohol, this rule requires the employee's removal from safety-related functions and provides minimum requirements for return to performance of safety-sensitive functions:
(1) An employee with a test result of 0.04 blood alcohol (BAC) or greater must be removed from, and cannot be returned to, a safety-sensitive function until, at a minimum,
(a) The employee undergoes evaluation and, where necessary, rehabilitation,
(b) A substance abuse professional determines that the employee has successfully complied with any required rehabilitation, and
(c) The employee undergoes return-to-duty tests with a result of less than 0.02.
(2) An employee with an alcohol concentration of 0.02 or greater but less than 0.04 is not permitted to perform safety-sensitive functions for a minimum of 24 hours.
Drug (Controlled Substances) Testing
All current W-2 employees, classified, unclassified, full-time, part-time, and volunteer will be subject to drug testing under the following conditions: reasonable suspicion, post-accident, and random testing as part of a monitoring program established to assure compliance with the terms of a rehabilitation agreement.
Pursuant to Title 49 CFR 392.4, the FHWA prohibits the use of controlled substances by drivers except as prescribed by a physician. The doctor must also advise the driver that the substance does not adversely affect the driver's ability to safely operate a commercial motor vehicle. Pursuant to LA R.S. 49:1015, employers are prohibited from permitting a driver who uses drugs to perform safety-sensitive functions. Drivers are required to inform their supervisors of any therapeutic drug use otherwise prohibited. A driver who tests positive for drugs with a 0.04 or greater blood content is prohibited from driving. The prohibition remains in effect until the driver complies with requirements of Section 382.605, including evaluation by a substance abuse professional. A driver who is prohibited from performing safety-sensitive functions may be assigned to non-safety-sensitive functions until such time as the driver complies with the requirements for returning to duty. For controlled substance testing, urine specimen collection and testing by a certified lab is required.
Following a determination that an employee has tested 0.04 blood content or greater for controlled substances, the employee must be removed from safety-related functions and cannot return to such functions until at a minimum:
a. the employee undergoes evaluation, and where necessary, rehabilitation;
b. substance abuse professional determines that the employee has successfully complied with any required rehabilitation; and
c. the employee takes a return-to-duty test with a verified negative test result.
Time Elapsed Action Required
When a required test has not been administered within a reasonable time frame following an accident for which a test is required, the following actions shall be taken:
2 Hours: If the driver has not submitted to an alcohol test at this time, the employer shall prepare and maintain on file a record stating the reason a test was not promptly administered.
8 Hours: Cease attempts to administer alcohol test, and prepare and maintain records stating the reason a test was not promptly administered.
32 Hours: If the driver has not submitted to a controlled substance test at this time, the employer shall cease attempts to administer the test, and prepare and maintain records stating the reason a test was not promptly administered.
IMPORTANT NOTE: Nothing in this document (or the rule itself) should be construed as to require the delay of necessary medical attention for injured people following an accident, or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.
Pursuant to LA R.S.49:1001(20b), drug testing is performed for any or all of the following classes of drugs: amphetamines, barbiturates, benzodiazepines, cocaine, marijuana, methadone, opiates, phencyclidine, and propoxyphene. The laboratory shall use a cut-off of 50 ng/ml for a positive finding in testing for cannabinoids. Urine will be analyzed for the testing of drugs using the five and nine panel drug screen and blood analyzed for the testing of alcohol.
DOT testing will include the National Institute on Drug Abuse (NIDA) 5 panel screen – marijuana, cocaine, phencyclidine (PCP), amphetamines, and opiates.
Confidentiality and Access to Records
LA R.S.49:1012: All information, interviews, reports, statements, memoranda, and/or test results received by the Office of Human Resources and Student Employment through its 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 an administrative or disciplinary proceedings or hearings, or civil litigation where drug use by the tested individual is relevant.
Title 49 CFR Section 382.107: Qualitative information regarding results, such as the identification of a substance, will be provided only to the designated Medical Review Officer pursuant to current law who will report final results to the Director of Human Resources and Student Employment. Results of the test will be released to appropriate licensing agencies on a need-to-know basis. All drug test results will be maintained in separate health files with restricted access in accordance with Title 49 CRF Section 382.405.
Access to records
a. Except as required by law or expressly authorized or required in this section, no employer shall release driver information that is contained in records required to be maintained under Sec. 382.401.
b. A driver is entitled upon written request to obtain copies of any records pertaining to the driver's use of alcohol or controlled substances including any records pertaining to his or her alcohol or controlled substances tests. The University shall promptly provide the records requested by the driver.
c. The University shall make available copies of all results of tests for alcohol and controlled substances when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the University or any of its drivers.
d. When requested by the National Transportation Safety Board as part of an accident investigation, employers shall disclose information related to the employer’s administration of a post-accident alcohol and/or controlled substance test administered following the accident under investigation.
e. Records shall be made available to any subsequent employer upon receipt of a written request from a driver. Disclosure by the subsequent employer is permitted only as expressly authorized by the terms of the driver's request.
f. An employer may disclose information required to be maintained under this part pertaining to a driver, the decision maker in a lawsuit, grievance or other proceeding initiated by or on behalf of the individual, and arising from the results of an alcohol and/or controlled substance test administered under this part or from the employer's determination that the driver engaged in conduct prohibited by subpart B of this part including but not limited to a worker's compensation, unemployment compensation, or other proceeding relating to a benefit sought by the driver.
g. An employer shall release information regarding a driver's records as directed by the specific, written consent of the driver authorizing release of the information to an identified person. Release of such information by the person receiving the information is permitted only in accordance with the terms of the employee's consent.
Alcohol-the intoxicating agent in beverage alcohol: beer, wine, and distilled spirits as defined under the Internal Revenue Code of 1954.
Alcohol Concentration -means the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test.
Alcohol Use -the consumption of any beverage, mixture, or preparation, including any medication containing alcohol.
Breath Alcohol Technician (BAT)-an individual who instructs and assists individuals in the alcohol testing process and operates an evidential breath testing device (EBT).
CAP-FUDT Laboratory-a laboratory certified for forensic drug testing by the College of American Pathologists.
Chain of Custody-procedures to account for the integrity of each urine specimen by tracking its handling and storage from point of specimen collection to final disposition of the specimen.
Collection Site -means a place designated by the employer where individuals present themselves for the purpose of providing a specimen of their urine to be analyzed for the presence of drugs.
Commercial Motor Vehicle -a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
(1) Has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
(2) Has a gross vehicle weight rating of 26,001 or more pounds; or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of hazardous materials requiring placards.
Confirmation Test -for alcohol testing means a second test, following a screening test with a result of 0.02 or greater, that provides quantitative data of alcohol concentration. For controlled substances testing 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 chemical principle from that of the screen test in order to ensure reliability and accuracy.
Controlled Substance-a drug, chemical substance or immediate precursor in Schedules I through V of R.S. 40:964 or Section 202 of the Controlled Substances Act (21 U.S. C. 812).
Designer (Synthetic) Drugs-Those chemical substances that are made in clandestine laboratories where the molecular structure of both legal and illegal drugs is altered to create a drug that is not explicitly banned by federal law.
Driver -any person who operates a commercial motor vehicle. This includes but is not limited to full -time, regularly employed drivers; casual, intermittent or occasional drivers.
Employee-unclassified, classified, and student employees, student interns, and any other person having an employment relationship with the agency, regardless of the appointment type (e.g. full -time, part-time, temporary, etc.)
Employer-any person, firm, or corporation, including any governmental entity, that has one or more workers or operators employed, or individuals performing service, in the same business, or in or about the same establishment, under any contract of hire or service, expressed or implied, oral or written.
Evidential Breath Testing Device (EBT)-A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHTSA's "Conforming Product's List of Evidential Breath Measurement Devices” (CPL).
Illegal Drug-any drug which is not legally obtainable or which has not been legally obtained, to include prescribed drugs not legally obtained and prescribed drugs not being used for prescribed purposes or being used by one other than the person for whom prescribed.
Initial Test -an immunoassay screen to eliminate "negative" urine specimens from further consideration.
Job-Related Accident/Incident -any employee behavior (action or inaction) which resulted in an accident, injury, or illness. Usually the accident/incident results in lost work time by an employee, serious or significant injury or illness to a patient, visitor, or co-worker, or an accident involving a vehicle, equipment or property.
Legal Drug-includes drugs prescribed by a licensed practitioner and over-the-counter drugs which have been legally obtained and are being used solely by the individual and for the purpose for which they were prescribed or manufactured in the appropriate amount.
Licensed Medical Practitioner -means a person who is licensed, certified, and/or registered, in accordance with applicable Federal, State, local, or foreign laws and regulations, to prescribe controlled substances and other drugs.
Medical Review Officer (MRO)-a licensed physician responsible for receiving laboratory results generated by employer or testing entity's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his medical history and any other relevant biomedical information.
NIDA Laboratory -a laboratory certified for forensic urine [and/or blood and hair] drug testing by the National Institute on Drug Abuse. (Now SAMSHA)
Non-Employees -Those who do not receive W-2's from the University including but not limited to all contract and subcontract workers, [faculty, residents, interns] volunteers, students, laborers or independent agents who are conducting business on behalf of or providing services for the University.
Performing (a safety-sensitive function)-any period in which the driver is actually performing, ready to perform, or immediately able to perform any safety-sensitive functions.
Positive Rate-the number of positive results for random controlled substances tests conducted plus the number of refusals of random controlled substances tests divided by the total of random controlled substances tests.
Prospective Employee -means any person who has made application to an employer whether oral or written to become an employee.
Reasonable Suspicion -belief based on reliable, objective and articulable facts derived from direct observation of physical, behavioral, odorous presence, or performance indicators and being of sufficient import and quantity to lead a prudent person to suspect that an employee is in violation of this policy.
Refusal to submit (to an alcohol or controlled substance test)-a driver (1) fails to provide adequate breath for testing without a valid medical explanation after he or she has received notice of the requirement for breath testing, (2) fails 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, or (3) engages in conduct that clearly obstructs the testing process.
Safety-Sensitive or Security-Sensitive position-a position containing duties of such nature that the compelling State interest to keep the incumbent drug-free outweighs the employee’s privacy interests. The list was determined with consideration of statutory law, jurisprudence, the practices of this agency and the following examples of safety-sensitive and security-sensitive positions:
- Positions with duties that are required or are authorized to carry a firearm;
- Positions with duties that allow access to controlled substances (drugs);
- Positions with duties that are required or are authorized to inspect, handle, or transport hazardous waste as defined in R.S. 30:2173(2) or hazardous material as defined in R.S. 32:1502(5).
Screening Test (aka initial test) -in alcohol testing it means an analytical procedure to determine whether a driver may have a prohibited concentration of alcohol in his or her system. In controlled substance testing it means an immunoassay screen to eliminate "negative" urine specimens from further consideration.
Split Sample-one urine specimen from one individual that is separated into two specimen containers.
Substance Abuse-is the term used to indicate excessive and/or inappropriate use as defined by this policy of a drug [alcohol] regardless of whether an individual has reached the point of true dependence on it.
Substance Abuse Professional -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.
Supervisor-a manager/supervisor/faculty who, based on objective criteria, knowledge or training, has a reasonable suspicion that an employee may be under the influence of a drug [alcohol].
Supposed to be Working-includes all time from the beginning to the end of an employee's scheduled work period including overtime work, meals, and rest breaks.
Under the Influence-for the purposes of this policy, a drug, chemical substance, or the combination of a drug, chemical substance that affects an employee in a detectable manner. The symptoms or influence are not confined to that consistent with misbehavior, nor to obvious impairment of physical or mental ability, such as slurred speech or difficulty in maintaining balance. A determination of influence can be established by a professional opinion or a scientifically valid test.
While at Work-includes all times when an employee is involved in the aspects of actual or simulated work experiences.
Workplace-any location on agency property including all property, offices and facilities (including all vehicles and equipment) whether owned, leased or otherwise used by the agency or by an employee on behalf of the agency in the conduct of its business while such business is being conducted.
This policy is communicated via the University Policy Page, Senior Staff, Academic Advisory Council.