EMPLOYEE STANDARDS OF CONDUCT SEARCHES AND ALCOHOL/DRUG TESTING. O Connor v. Ortega, 480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S.

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1 (LEGAL) SEARCHES GENERAL RULE DRUG / ALCOHOL TESTING RANDOM DRUG TESTING SAFETY- SENSITIVE POSITIONS Citizens, including District employees, have a right to be free from unreasonable searches and seizures. U.S. Const. Amendment IV; Tex. Const. Art. I, Sec. 9 The District may search an employee or an employee s property if: 1. There are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct; and 2. The search is reasonably related in scope to the circumstances that justified the interference in the first place. O Connor v. Ortega, 480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985) In addition, the District may search an employee s workplace for noninvestigatory, work-related purposes, if there are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct. O Connor v. Ortega, 480 U.S. 709 (1987) Blood, urine, and breath tests of public employees to determine drug use are searches under the Fourth Amendment of the U.S. Constitution. Skinner v. Railway Labor Executives Ass n, 489 U.S. 602 (1989) The District may conduct drug tests, without a warrant and without individualized suspicion, when the test serves special governmental needs that outweigh the individual s privacy expectation. Skinner v. Railway Labor Executives Ass n, 489 U.S. 602 (1989); Nat l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) Random alcohol and drug testing of employees in safetysensitive positions may be permissible when the intrusiveness of the search is minimal and the Board is able to demonstrate that the drug-testing program furthers its interest in ensuring the physical safety of students. Safety-sensitive positions include those that involve the handling of potentially dangerous equipment or hazardous substances in an environment including a large number of children. Aubrey v. Sch. Bd. of LaFayette Parish, 148 F.3d 559 (5th Cir. 1998) Note: The following testing requirements apply to every employee of the District who operates a commercial motor vehicle and is subject to commercial driver s license requirements in accordance with federal regulations. TESTING OF DRIVERS DATE ISSUED: 2/6/ of 3 UPDATE 82 (LEGAL)-P

2 (LEGAL) The District shall conduct testing, in accordance with federal regulations, of commercial motor vehicle operators for use of alcohol or a controlled substance that violates law or federal regulation. 49 U.S.C ; 49 CFR Part 382 COMMERCIAL MOTOR VEHICLE DEFINED TESTING PROCEDURES TESTS REQUIRED EDUCATIONAL MATERIALS REPORTS A commercial motor vehicle is defined as a motor vehicle used to transport passengers or property that: 1. Has a gross combination weight rating 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. 49 CFR The District shall ensure that all alcohol or controlled substances testing conducted under 49 CFR Part 382 complies with the procedures set forth in 49 CFR Part CFR Required testing includes pre-employment, postaccident, random, reasonable suspicion, return-to-duty, and follow-up testing. No driver shall refuse to submit to a postaccident alcohol or controlled substances test, a random alcohol or controlled substances test, a reasonable suspicion alcohol or controlled substances test, or a return-to-duty or follow-up alcohol or controlled substances test. The District shall not permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions. 49 CFR ,.309 The District shall provide educational materials that explain the federal requirements and the District s policies and procedures with respect to meeting these requirements and shall ensure that a copy of these materials is distributed to each driver before the start of alcohol and controlled substances testing under this policy and to each driver subsequently hired or transferred into a position that requires driving a commercial motor vehicle. Written notice to representatives of employee organizations of the availability of this information shall also be provided. The materials shall include detailed discussion of at least the items listed at 49 CFR CFR A district required by federal safety regulations to conduct alcohol and drug testing of an employee who holds a commercial driver s license shall report the following information to the Department of Public Safety: DATE ISSUED: 2/6/ of 3 UPDATE 82 (LEGAL)-P

3 (LEGAL) 1. A valid positive result on an alcohol or drug test and whether the specimen producing the result was a dilute specimen. Valid positive result means an alcohol concentration of 0.04 or greater on an alcohol confirmation test, or a result at or above the cutoff concentration levels listed in 49 CFR on a confirmation drug test. Dilute specimen means a specimen with creatinine and specific gravity values that are lower than expected for human urine. 2. A refusal to provide a specimen for an alcohol or drug test. 3. An adulterated specimen or substituted specimen, as defined at 49 CFR 40.3, on an alcohol or drug test. For purposes of this requirement, the term employee includes applicants for employment subject to preemployment testing. Trans. Code ; 49 CFR 40.3 DATE ISSUED: 2/6/ of 3 UPDATE 82 (LEGAL)-P

4 (LOCAL) REASONABLE SUSPICION SEARCHES The District reserves the right to conduct searches when the District has reasonable cause to believe that a search will uncover evidence of work-related misconduct. The District may search the employee, the employee s personal items, work areas, lockers, and private vehicles parked on District premises or worksites or used in District business. Department directors, principals, and other administrators, in consultation with the Chief Human Resources Officer or designee, may remove an employee from duty and require testing for illegal drugs, alcohol, and/or controlled substances based upon reasonable suspicion. Reasonable suspicion shall include, but shall not be limited to: 1. The occurrence of an accident or incident that results in damage or loss of District property or injury to any employee; 2. Articulable observations of appearance, behavior, speech, or body odors; and 3. Reports or complaints about the use of alcohol or illegal substances during work hours from other employees or members of the public. Within 24 hours of the removal, the supervisor shall provide a signed, written record to the office of human resources documenting the information leading to an employee s removal and/or testing based on reasonable suspicion. Testing positive for any amount of alcohol, illegal drugs, or any controlled substances, or an employee s refusal to comply with a directive to submit to a reasonable suspicion test shall be a basis for disciplinary action, up to and including termination. Note: The following provisions apply to employees who are covered by the federal Department of Transportation (DOT) rules. PURPOSE AND SCOPE To ensure a safe and productive work and learning environment at all District schools and facilities, as well as to safeguard District property, the District strictly prohibits the sale, distribution, possession, use, or being under the influence of illegal drugs and/or alcohol on District premises, facilities, and worksites or while conducting District business or activities. District vehicles, whether in use or parked on District premises or worksites, as well as private vehicles parked on District premises or worksites are locations included within this prohibition. DATE ISSUED: 7/31/ of 5 LDU (LOCAL)-X

5 (LOCAL) The District s commitment to the protection of students, employees, and the public by providing a drug and alcohol free work and learning environment is evidenced by the implementation of policies and procedures that not only ensure compliance with appropriate safety measures and all applicable laws and regulations concerning drug and/or alcohol abuse, but also demonstrate the District s zero tolerance of drug and/or alcohol use or possession in District schools. DEFINITIONS For the purposes of this policy, the following definitions shall apply: 1. Alcohol means alcoholic beverages, mixtures, or preparations, including any medication that contains ethyl alcohol or other low molecular weight alcohols. 2. Illegal drug means any controlled substance as defined by the federal or state Controlled Substances Act. 3. Legal drug means a drug prescribed by a licensed physician for an employee, taken in accordance with the physician s instructions, that the physician has advised will not adversely affect the employee s ability to perform work safely. 4. OTA-covered means all employees covered by the Omnibus Transportation Employee Testing Act ( OTA ), and includes all District employees who operate a commercial motor vehicle and are subject to commercial driver s license requirements as set forth in (LEGAL). 5. Safety sensitive means a position or function in which improper action or failure to take appropriate action could result in irreparable consequences leading to injury or death of the employee or others and/or significant property or environmental damage. 6. Safety-sensitive function, as applied to an OTA-covered employee, means all time spent engaged in the following tasks: a. Waiting to be dispatched. b. Inspecting, servicing, or conditioning any commercial motor vehicle. c. Operating the driving controls of a commercial motor vehicle. d. Loading or unloading a commercial vehicle, whether supervising, assisting, or attending. e. Remaining in readiness to operate a commercial vehicle. DATE ISSUED: 7/31/ of 5 LDU (LOCAL)-X

6 (LOCAL) f. Giving or receiving receipts for shipments loaded or unloaded. g. Performing the driver requirements associated with an accident. h. Repairing, obtaining assistance for, or remaining in attendance with a disabled vehicle. As applied to all District employees, safety-sensitive functions include all of the tasks listed above as well as: i. Inspecting, servicing, or conditioning any motor vehicle. j. Operating the driving controls of a motor vehicle. k. Loading or unloading a vehicle, whether supervising, assisting, or attending. l. Remaining in readiness to operate a vehicle. 7. Safety-sensitive positions include all District peace officers, OTA-covered positions, as well as those positions involved in the operation or repair of any motor vehicle, regardless of whether the vehicle is on District or private property, and regardless of whether students or other employees are to be transported. 8. Under the influence means being unable or unwilling to perform work in a safe and/or productive manner; being in a physical or mental condition that creates a risk to the safety and well-being of the individual, students, other employees, the public, or District property; and/or the presence of an illegal drug or alcohol or the metabolite of an illegal drug in an employee s system. 9. Use means the injection, inhalation, ingestion, or application of a substance to or into a human body. CONSEQUENCES OF VIOLATING THE DRUG AND ALCOHOL POLICY As set forth in (LEGAL), the OTA prohibits OTA-covered employees from engaging in certain alcohol and controlled substance related activities. In addition, an employee, including an OTAcovered employee, found in violation of any portion of this policy will be subject to discipline, up to and including termination. Any contractor or visitor found in violation of any portion of this policy will be refused entry onto or removed from the District s premises. Depending on the circumstances, other action, including notification of appropriate law enforcement agencies, may be taken by the District. DATE ISSUED: 7/31/ of 5 LDU (LOCAL)-X

7 (LOCAL) An employee who uses a legal drug, including alcohol, authorized by a licensed physician in accordance with a prescription specifically prescribed for that employee s use shall not be considered to have violated this policy unless the employee is actually engaged in the performance of a safety-sensitive function. In order to comply with the terms of this policy, an employee engaged in the performance of a safety-sensitive function must: 1. Report all therapeutic drug use, whether prescription or nonprescription, to his or her immediate supervisor or the next line officer. 2. Report for duty or remain on duty while under the influence of a legal drug only if such drug was authorized by a licensed physician in accordance with a prescription specifically prescribed for that employee s use and the physician has advised that the drug does not affect the employee s ability to perform work in a safe manner. SEARCHES, INSPECTIONS, AND DRUG AND ALCOHOL TESTING NOTIFICATION OF CRIMINAL DRUG STATUTE CONVICTIONS DRUG AND ALCOHOL TREATMENT, REHABILITATION, AND EDUCATION The District also reserves the right to conduct searches and inspections when the District reasonably suspects that an employee, contractor, or visitor may be in violation of this policy. The District reserves the right to search and/or inspect such person s personal effects, lockers, lunch boxes, purses, baggage, and the like, that are located on District premises, including private vehicles if parked on District premises, worksites, or if utilized in District business. Entry onto the District s premises constitutes consent to search and/or inspection. All safety-sensitive employees and applicants, including OTAcovered employees, will be required to undergo drug and alcohol testing under the circumstances set forth in the District s Employee Substance Abuse Testing Procedures and, if applicable, (LEGAL). All drug and alcohol testing will be conducted in accordance with the Federal Highway Administration s drug and alcohol testing regulations, the District s Employee Substance Abuse Testing Procedures, and (LEGAL). Pursuant to the federal Drug-Free Workplace Act of 1988, an employee must notify the District of any criminal drug statute conviction, including a plea of contendere, for a violation occurring in the workplace no later than five days after such conviction. Such employees will have violated this policy and will be subject to discipline, up to and including termination. The District Health Protection Plan provides for coverage for diagnosis or treatment relating to psychiatric conditions and chemical dependency for covered employees subject to certain guidelines and the Schedule of Benefits. Refer to the Fort Bend Independent DATE ISSUED: 7/31/ of 5 LDU (LOCAL)-X

8 (LOCAL) School District Health Protection Plan and Premier Preferred Provider Organization Directory or direct questions regarding plan guidelines and benefits to the District insurance/benefits department at The mailing address is: Fort Bend ISD Insurance/Benefits Department P.O. Box 1004 Sugar Land, Texas Questions regarding access to the PPO Network of Providers should be directed to H.A.S. Customer Service at (713) NOTIFICATION REQUIREMENTS The District shall provide a copy of this policy, (LEGAL), and its Employee Substance Abuse Testing Procedures to all employees. OTA-covered employees shall sign an acknowledgment of receipt of such policies. For additional information concerning such policies or drug and/or alcohol abuse, employees may contact the director of administrative services. All employees shall be notified 30 days prior to the effective date of any amendment or revision of such policies. DATE ISSUED: 7/31/2009 ADOPTED: 5 of 5 LDU (LOCAL)-X

9 Transportation Department Fort Bend I.S.D. Department Memorandum Date: February 24, 2012 To: From: Re: All Employees Director of Transportation Drug Testing Requirements Federal regulations require that all school bus drivers (and other employees who perform safety sensitive functions) submit to drug testing. These requirements are set both in FBISD Board Policy (Legal) and (Local) and require four types of testing: 1. Pre-Employment 2. Post Accident 3. Reasonable Suspicion 4. Random Fort Bend ISD conducts random testing periodically throughout the school year. Please be aware that if your name appears on the random drug test list, you are required to submit to testing immediately and comply with all requests made during the process. Failure to provide a specimen or comply with any instructions that may be given by the Drug Test Facilitator may result in disciplinary action, up to and including termination. A refusal to submit to any type of drug test will be documented as a refusal to test and will result in a recommendation for termination of employment. Drivers must understand that the list of employees to be tested is generated randomly by an outside company in accordance with Federal Regulations; the selection is not about the individual. Below you will find a list of guidelines that will assist to facilitate this process: 1. When you have been notified for testing, proceed to the designated testing area immediately and bring your identification with you. 2. Do not question why you have been selected for a random drug test with the Drug Test Facilitator or any individual who may be responsible for notifying the employees of the need to test. 3. Drivers may not leave the designated area until they have provided a specimen for testing and are released. If any individual leaves the area prior to providing a sample, such action will be deemed a refusal to test and will result in termination. 4. Limit the number of personal belongings you bring with you when called upon to submit to testing; personal items will not be allowed to enter the restroom facilities or stalls. Failure to follow any guidelines listed above may result in disciplinary action, up to and including termination. Please sign below to acknowledge receipt of this document. Printed Name Signature Date

10 (EXHIBIT) FORT BEND INDEPENDENT SCHOOL DISTRICT ACKNOWLEDGMENT OF RECEIPT OF DRUG AND ALCOHOL ABUSE POLICIES AND PROCEDURES I, hereby state that I have received a copy of Fort Bend Independent School District s Drug and Alcohol Abuse Policy, Employee Substance Abuse Testing Procedures, and (LEGAL) and (LOCAL). I acknowledge that I have read and understand these policies and procedures. I also understand that employees found in violation of the District s Drug and Alcohol Abuse Policy are subject to immediate discharge. Signature Date DATE ISSUED: 2/22/ of 1 UPDATE 60 (EXHIBIT)-X