The employees of the State of Louisiana are among the state's most valuable resources, and the physical and mental well-being of these employees is necessary for them to properly carry out their responsibilities. Substance abuse causes serious adverse consequences to users, impacting on their productivity, health and safety, dependents, and co-workers, as well as the general public.
The State of Louisiana and McNeese State University (MSU) have a long-standing commitment to working toward a drug-free workplace. In order to curb the use of illegal drugs by employees of the State of Louisiana, the Louisiana legislature enacted laws that provide for the creation and implementation of drug testing programs for state employees. Further, the Governor of the State of Louisiana issued Executive Order 98- 38 providing for the promulgation by executive agencies of written policies mandating drug testing of employees, appointees, prospective employees and prospective appointees, pursuant to Louisiana Revised Statute 49:1001, et seq.
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 procedures, Title 49CRF part 40 and part 382 et al., Louisiana Revised Statutes 23:1081 and 1601, 30:2173(2), 32:1502(5), and Executive Order MJF 98-38.
This drug testing policy shall be implemented effective immediately following notice and publication to all employees of McNeese State University.
Louisiana R.S. 49:1001 defines an employee as any person, paid or unpaid, in the service of an employer. More specifically, the person may be classified, unclassified, probationary (rehabilitation), temporary or non-temporary in a safety-sensitive and/or security-sensitive position.
Following an employment offer and prior to starting work, prospective employees applying for positions that are safety-sensitive and/or security-sensitive (see definitions), or whose position will involve driving a commercial motor vehicle, will be required to be tested for drugs. The individual must test free of drugs as a condition of employment.
More specific clarification of definition follows as to positions covered by the policy that are defined under federal and state law. Certain employees could be subjected to testing under both federal and state laws.
Positions Defined Under Federal Law
All current W-2 employees whose jobs require them to drive commercial motor vehicles (see definitions). The policy also applies to all individuals who have made written application for positions that will require them to drive commercial motor vehicles. This group of employees and applicants are subject to drug testing pursuant to federal law (Department of Transportation/Federal Highway Administration Alcohol and Drug Testing Regulations - CFR 49).
Conditions when employers must test employees for alcohol and/or controlled substances under federal law (see definitions).
- Pre-employment: Prior to the first time an employee performs a safety-sensitive or security-sensitive function, the individual must undergo testing for controlled substances. The employee shall not be permitted to perform safety-sensitive functions unless the driver has received a controller substances test result indicating a verified negative test result.
- 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 ho immediately receives medical treatment away from the accident; or one or more vehicles is disabled and must be towed from the scene.
- Random: Such testing shall be conducted utilizing a fair and equitable method of selection.
- Reasonable Suspicion: (see definitions) A supervisor's belief must be based on specific observation concerning the appearance, behavior, speech, or body odors of the driver. 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.
- 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.
- Follow-up Substance 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.
- Alcohol testing may be required in all of the above conditions except pre-employment as specified in 49: CFR part 40. Following a determination that an employee has misused alcohol, the employee will be removed from safety-related functions.
Positions Defined Under State Law (LA R.S. 49:1015)
All current W-2 employees in safety-sensitive or security-sensitive positions, both classified and unclassified. The policy also applies to all persons who have made written application for positions designated as safety-sensitive and/or security-sensitive or who are promoted into a position that is considered safety-sensitive and/or security-sensitive (see definitions).
Conditions when employers may test employees for drugs under state law (see definitions):
- Pre-employment post-hire: The prospective employee hired for a safety-sensitive and/or security-sensitive position must undergo controlled substance drug testing prior to being placed in the position.
- Post-accident: An employee shall be tested following an accident during the course and scope of employment if there is reasonable suspicion of an employee's drug use or if the accident results in:
- injury requiring medical treatment to any party involved or injury which results in a fatality;
- property/equipment damage at or above $1,000.00 and/or;
- the release of hazardous waste as defined in R.S. 30:2173(2) or hazardous materials defined in R.S. 32:1502(5).
- Random: Such testing shall be conducted for employees in safety-sensitive and/or security-sensitive positions or participating in a rehabilitation program utilizing a fair and equitable method of selection.
- Reasonable Suspicion: A supervisor's belief must be based on specific observation concerning the appearance, behavior, speech, or body odors of the employee. Such determinations 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.
All current W-2 employees, both classified and unclassified 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 LA R.S.49:1001(20b), drug testing is performed for any or all of the following classes of drugs: amphetamines, cocaine, marijuana, opiates, and phencyclidine. 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. The Federal Department of Transportation requires testing for alcohol.
Procedures, Conditions, and Consequences of Drug Testing
Pursuant to LA R.S. 49:1005(B), drug testing shall be performed in compliance with the NIDA guidelines or by statutory or regulatory authority under R.S. 23:1081 et seq. and R.S. 23:1601 et seq. The cut off limits for drug testing shall be in accordance with NIDA guidelines with the exception of initial testing for marijuana that shall be no less than fifty nanograms/ML and no more than one hundred nanograms/ML as specified by the employer or the testing entity.
- Pursuant to 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. A driver who tests positive for drugs with a 0.04 or great BAC is prohibited from driving. The prohibition remains in effect until the driver complies with requirements of Section 382.605, including evaluation by a SAP. 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 BAC or greater for controlled substances, the employee must be removed from safety-related functions and cannot return to such functions until at a minimum:
- the employee undergoes evaluation, and where necessary, rehabilitation,
- a substance abuse professional determines that the employee has successfully complied with any required rehabilitation, and
- the employee takes a return-to-duty test with a verified negative test result.
- Pursuant to LA R.S. 49:1008, a prospective employee who tests positive for the presence of drugs in the initial screening shall have the employment offer rescinded. Refusal to submit to a pre-employment post-hire job offer test will result in the individual not being hired. A driver who refuses to submit to a return to- duty test will not be allowed to return to duty. A second test confirmed positive will result in termination of employment.
- The FHWA will disqualify drivers for one year, pursuant to CFR 49:386, if the driver refuses to submit to a post-accident test after a fatal accident.
- 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 elapsed: Driver has not submitted to an alcohol test, employer shall prepare and maintain on file a record stating the reason a test was not promptly administered.
- 8 hours elapsed: Cease attempts to administer alcohol test, and prepare and maintain records as described above.
- . 32 hours elapsed: If driver has not submitted to a controlled substance test at this time, cease attempts to administer the test, and prepare and maintain the record described above.
- 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 a Continuation of Employment form is obtained from the Director of Human Resources.
- 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.
LA R.S.49:1012: All information, interviews, reports, statements, memoranda, and/or test results received by the Human Resource Office of McNeese State University 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 proceeding or hearing, or civil litigation where drug use by the tested individual is relevant.
- CFR 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. 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 Section 382.405.
Violation of the Policy/Disciplinary Actions
Violation of this policy, including refusal to submit to drug testing when properly ordered to do so, will result in actions up to and including termination of employment. 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.
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. 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. The University also provides assistance to employees with drug-related problems through the Counseling Center. Those employees who voluntarily seek assistance from the Assistance Program and/or the Counseling Center are assured that professional standards of confidentiality will be maintained. Referral to appropriate community agencies is also available through the Counseling Center. University support services and programs are designed to encourage employees to adopt and maintain a healthy lifestyle.
Chemical dependency is a primary and progressive disease that adversely affects all areas of an individual's life. The use of illicit drugs and/or the abuse of alcohol are harmful to a person's health and well-being, and have been proven to be damaging to vital organs such as the heart, liver, and brain. Pregnant women who use drugs run the risk of bearing addicted, malformed, or stillborn children. Illicit drug use and alcohol abuse is often a factor in accidents, and is a leading cause of death.
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.
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.
Federal and State Definitions
- Certified laboratory for forensic drug testing by the College of American Pathologists.
- 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.
- A motor vehicle or combination of motor vehicles used in commerce to transport passengers or property and (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, (2) has a gross vehicle weight rating of 26,001 or more pounds, (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.
- A second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the initial test and which uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy.
- 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).
- 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.
- Any person who operates a commercial motor vehicle. This includes but is not limited to: full time, regularly employed drivers; and casual, intermittent or occasional drivers.
- Procurement of laboratory services by a certified laboratory shall be provided through the Office of State Purchasing, Division of Administration, pursuant to applicable bid laws. Expenses for testing services will be encumbered by the University. Expenses for second testing may be the responsibility of the employee.
- Any person, paid or unpaid, in the service of an employer.
- Any person, firm, or corporation, including any government 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.
- Shall not include any person, firm, or corporation that is subject to a federally mandated drug testing program.
- An employee who is a person, firm, or corporation that contracts or subcontracts with a principal need not be considered, in whole or in part, to be an employee of such principal. (CFR 382.107)
- Any person (including the United States, a State, the District of Columbia or a political subdivision of a State) who owns or leases a commercial motor vehicle or assigns persons to operate such a vehicle, including agents, officers, and representatives of the employer.
- Includes narcotics, hallucinogens, depressants, stimulants, look-alike drugs, or other substances which can affect or hamper the senses, emotions, reflexes, judgment, or other physical or mental activities.
- Included is 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.
- An immunoassay screen to eliminate "negative" urine specimens from further consideration. The guidelines for screening laboratories will be followed pursuant to LA R.S. 49:1008.
- 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.
- Any employee behavior (action or inaction) which results 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.
- A licensed physician responsible for receiving laboratory results generated by the 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.
- Those who do not receive W-2's from McNeese State 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 are providing services for the University.
- 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.
- Post-job offer but prior to starting work an employee in a security- or safety-sensitive position must be tested for controlled substances.
- The employee shall not be allowed to perform safety-sensitive functions unless the employer has received a verified controlled substances negative test result.
- Any person who has made application whether oral or written to become an employee.
- A public employer may require, as a condition of continued employment, samples from his employees to test for the presence of drugs following an accident if the accident occurred during the course and scope of his employment, under other circumstances which result in reasonable suspicion that drugs are being used. Additionally, the employee, under reasonable suspicion of drug impairment, shall be required to submit to a drug test if the accident results in (1) serious injury or a fatality, (2) damage at or above $1,000.00, or (3) causes the release of hazardous waste as defined in R.S. 30:2173(2) or hazardous materials defined in R.S. 32:1502(5).
- Any motor vehicle, watercraft, aircraft, or rail vehicle owned or controlled by the state.
- Employees whose positions are safety and/or security-sensitive are eligible for random drug testing for alcohol and controlled substances at all times. Random testing may also be conducted as part of a monitoring program established to assure compliance with the terms of a rehabilitation agreement.
- A no discriminating method shall be used to select employees for random testing.
- Belief based upon reliable, objective, and articulable observation regarding the appearance, behavior, speech, or body odors of an individual and being of sufficient import and quantity to lead a prudent person to suspect that an employee is in violation of this policy. Such determination should be confirmed by a second employee when possible. Recommendation to test will be in writing and will describe the behavior and circumstances observed.
- 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.
- Includes positions where (1) a hazardous condition or practice in the workplace could result in a potential danger which could reasonably cause death or physical harm to individuals, (2) there is access to or there is handling of hazardous wastes or drugs, (3) public safety demands that employees carry deadly weapons in the course and scope of their duties and must be prepared to make clear-headed instant decisions that could cause injury or death, or (4) individuals handle drugs. Positions in this area may include but are not limited to nurses, nurse supervisors, police officers, or security guards.
- (CFR 382.107) Any of those on-duty functions set forth in 395.2 On-Duty Time, paragraphs (1) through (7) as follows: all time at a carrier or shipper plant, terminal, facility, or other property, waiting to be dispatched, unless the driver has been relieved from duty by the employer, all time inspecting equipment as required by the Federal Motor Carrier Safety Regulations (FMCSR's), or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time, all time spent at the driving controls of a commercial motor vehicle; all time other than driving time, spent on or in a commercial motor vehicle (except for time spent resting in the sleeper berth); all time loading or unloading a commercial motor vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and all time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
- A drug, chemical substance, or the combination of a drug/chemical substance that affects an employee in any 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. Such a determination of influence will be established by a professional opinion or a scientifically valid test.
- Any location including all property, offices and facilities (including all vehicles and equipment) whether owned, leased or otherwise used by Louisiana Tech University or by an employee on behalf of the University in the conduct of its business in addition to any location from which an individual conducts University business while such business is being conducted.
- CAP-FUDT Laboratory - NIDA Laboratory [SAMSHA] (LA R.S. 49:1001)
- Collection Site (LA R.S. 49:1001)
- Commercial Motor Vehicle (CFR 382-107)
- . Confirmation or Confirmatory Test (LA R.S. 49:1001)
- Controlled Substance
- Designer (Synthetic) Drugs
- Driver (CFR 382.107)
- Drug Testing Services (LA R.S. 49:1005 and Executive Order No. MJF 98-38)
- Employee (LA R.S. 49:1001)
- Employer (LA R.S. 49:1001)
- Illegal Drug (LA R.S. 49:1015)
- Initial Test or Screening Test (LA R.S. 49:1001)
- Legal Drug (LA R.S. 49:1015)
- Job-Related Accident/Incident
- Medical Review Officer (LA R.S. 49:1001)
- Positive Rate (CFR 382.107)
- Pre-employment (LA R.S. 49:1015)
- Prospective Employee (LA R.S. 1001)
- Post-accident (LA R.S. 49:1015)
- Public Vehicle (LA R.S. 49:1015(F)
- Random Testing (LA R.S. 49:1015)
- Reasonable Suspicion (LA R.S. 49:1015)
- Refusal to Submit (CFR 382.107)
- Safety-Sensitive or Security-Sensitive Position (LA R.S. 49:1015)
- Sample (LA R.S. 49:1001)
• Urine, blood, saliva, or hair.
- Sample Collection (LA R.S. 49:1006): Procedures as dictated by state law.
- Split Sample (LA R.S. 49:1001): One urine specimen from one individual that is separated into two specimen containers.
- Under the Influence