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Human Resources

Drug/Alcohol Testing - Commercial Driver's Licenses and Safety Sensitive Functions

Section: Human Resources Policies
Policy Name: Drug/Alcohol Testing – Commercial Driver’s Licenses and Safety Sensitive Functions
Policy Owner: Executive Vice President
Responsible University Office: Office of Human Resources
Origination Date: February 1999
Revisions:  July 2015; March 2016; July 2016
Legacy Policy Number: 7-44
  1. SCOPE OF POLICYThis policy applies to the Employees Subject to Testing identified below and is intended to comply with the Omnibus Transportation Employee Testing Act of 1991 (“OTETA”) and in accordance with Title 49 Code of Federal Regulations, Part 382 and 391, Subpart H.
  2. DEFINITIONS
    1. Accident – Any on-the-job occurrence involving an employee defined above as being in a driving position, operating a University commercial motor vehicle which results in a fatality, bodily injury or property damage, where the driver’s performance could have contributed to the accident.
    2. Alcohol – The intoxicating agent in beverage alcohol or ethyl alcohol or other low molecular weight alcohol, including methyl and isopropyl alcohol. Note: This also includes medications, prescription or non-prescription, which contain alcohol.
    3. Chain of Custody – Procedures to account for the integrity of each urine or blood specimen by tracking its handling and storage from the point of collection to its final disposition.
    4. Commercial Motor Vehicle- A motor vehicle or combination of vehicles used in commerce if the motor vehicle:
      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 26,001 or more pounds; or
      2. has a gross vehicle weight rating of more than 26,001 or more pounds; or
      3. is designed to transport more than 16 passengers, including the driver; or
      4. is of any size and is used in the transportation of materials found to be hazardous for the purpose of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded.
    5. Controlled Substances – Drugs required by OTETA to be included in the testing process. These drugs are as follows: marijuana, cocaine, opiates, phencyclidine (PCP) and amphetamines.
    6. Driver- Any person who operates a University commercial motor vehicle, including but not limited to full-time, regularly employed drivers, casual, intermittent or occasional drivers, and I or any person who operates a University commercial motor vehicle at the direction or with the consent of the University.
    7. Driving Function- Means any of those on-duty functions listed below. On-duty functions mean all time from when the driver begins to work or is required to be in a readiness to work until the time they are relieved from work and include:
      1. All time at the facility waiting to be dispatched, unless the driver has been relieved from duty;
      2. All time inspecting equipment as required by federal regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
      3. All time driving;
      4. All time, with the exception of sleep time in vehicles, other than driving time, in or upon any commercial motor vehicle;
      5. All time loading or unloading a 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 receipts for shipments loaded or unloaded;
      6. All time spent performing the driver requirements related to an accident;
      7. All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
    8. Employees Subject to Testing – Full-time, part-time, miscellaneous wage, casual wage, temporary or seasonal employees, who possess a commercial driver’s license (CDL) with the intent of operating a University commercial motor vehicle (this includes any rented leased, or personal vehicle used as a requirement of their job function) requiring such license, as well as employees performing safety sensitive functions, are subject to testing. This includes, but is not necessarily limited to, employees in the following positions:
      1. Arborist
      2. Arborist Helper
      3. Bus Driver
      4. Caretaker
      5. Casual Wage Bus Driver
      6. Farm Assistant
      7. Farm Manager
      8. Groundskeeper (including employees who are not mandated to maintain a CDL, yet choose to do so)
      9. Grounds Equipment Mechanic
      10. Grounds Technician
      11. Research Associate, AG
      12. Research Associate II, Mechanical Engineering
      13. Sr. Vehicle Technician
      14. Sport Turf Technician
      15. Sport Turf Technician Assistant
      16. Vehicle Technician
      17. Well Driller, DE Geological Survey
        All Departments are required to advise the University’s Department of Transportation’s (DOT) On-site Coordinator of all employees required to possess a CDL, as a condition of employment.
    9. Medical Review Officer (MRO) – A licensed physician responsible for the collection of test results generated pursuant to this policy who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s confirmed positive result together with his/her medical history and any other relevant biomedical information.
    10. Performing – A driver is considered to be performing a driving function during the periods in which they are actually performing, ready to perform, or immediately ready to perform any of those on-duty functions (1) through (7) listed in the definition of driving functions.
    11. Reasonable Suspicion – Belief that the driver has or may be violating the alcohol or controlled substances prohibitions, based on specific, contemporaneous, articulated observations concerning appearance, behavior, speech or body odors of the driver.
    12. Refusal to Submit to Testing – Includes
      1. failure to provide adequate breath for testing without a valid medical explanation after receiving notice of the requirement of breath testing;
      2. failure to provide adequate urine for controlled substance testing without a valid medical explanation after receiving notice of the requirement of urine testing; or
      3. conduct that clearly obstructs the testing
    13. Safety Sensitive Function – Means any of those on-duty functions listed below.
      1. Safety-sensitive function means all time from the time an employee/driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions shall include: All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
      2. All time inspecting equipment as required by Sections 392.7 and 392.8 of the Department of Transportation’s subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
      3. All time spent at the driving controls of a commercial motor vehicle in operation; all time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of Sec. 393.76 of the Department of Transportation’s subchapter);
      4. All time loading or unloading a 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
      5. All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
    14. Substance Abuse Professional (“SAP”) – A licensed medical doctor 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 substance-related disorders. The substance abuse professional is that person(s) assigned to maintain the records required by federal law regarding the implementation of OTETA.
    15. Test Collection Site – That facility or facilities selected by the University to perform alcohol and/or controlled substances tests in full compliance with OTETA.
  3. POLICY STATEMENTThe University of Delaware recognizes the importance of safety protocols for employees operating University Commercial Motor Vehicles and other employees performing safety sensitive functions and intends to follow all laws, rules and regulations applicable to such activities through application of this policy.
  4. POLICY STANDARDS AND PROCEDURES
    1. PROHIBITIONS
      1. Alcohol -No driver shall:
        1. report to duty or remain on duty while having an alcohol concentration of 0.02 or higher
        2. possess alcohol while on duty
        3. use alcohol while on duty
        4. perform driving functions or safety sensitive functions within 4 hours of using alcohol
        5. use alcohol within 8 hours after an accident or until undergoing an alcohol test
        6. refuse to submit to an alcohol test
          1. Refusal is proof of positive test results.
      2. Controlled Substances – No University employee shall report for duty or remain on duty requiring the performance of driving or safety sensitive functions when the employee uses any controlled substance except when the use is pursuant to the instructions of a physician (and is verifiable) who has advised the employee that the substance does not adversely affect the employee’s ability to safely operate a commercial motor vehicle. (Note: Burden of verifiable proof is on the employee, to the satisfaction of the employer.) No employee shall report for work, remain at work or perform a driving or safety sensitive function if he/she tests positive for controlled substance as defined.
    2. TESTING PROCEDURES
      All testing required by this policy will be conducted in accordance with OTETA. The testing will only be conducted by certified, qualified individuals who are contracted by the University for this purpose.
    3. TYPES OF TESTING
      1. Pre-employment/Promotion/Transfer
        1. Testing that occurs before an applicant is hired, after a conditional offer has been extended to hire, or after an employee has been promoted or transferred, and before the employee actually performs a driving function in the position for the first time. No employee shall operate in a driving function unless their breath alcohol concentration is less than 0.02 and they have a negative controlled substance report.
      2. Reasonable Suspicion
        1. Testing that occurs when a trained supervisor or other trained official believes an employee has violated this policy, based upon specific, contemporaneous, articulated observations concerning the appearance, behavior speech or body odors of the driver. Ordinarily, testing based upon reasonable suspicion should be performed within two (2) hours following the observations, but in no instance shall testing be conducted after eight (8) or more hours have elapsed.Any employee whose breath alcohol content is greater than 0.02 will be prohibited from performing functions until their next scheduled work day and only after subsequent testing.
        2. A reasonable suspicion determination shall only be made by a supervisor or other official that has completed the federally required training (Federal regulations require at least 60 minutes of training on alcohol misuse and at least 60 minutes of training on controlled substances use before a person can be designated to determine whether reasonable suspicion exists to require a driver to undergo alcohol or controlled substances testing. The training covers the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.) on the symptoms of alcohol or controlled substance abuse, or a police officer. Whenever possible, a supervisor’s reasonable suspicion should be confirmed by a second trained observer, before requiring a driver to undergo alcohol or controlled substances testing. However, if a second trained observer is not available, any supervisor who has completed the federally required training on the symptoms of alcohol or controlled substance abuse may act as a trained observer. A police officer’s determination of a reasonable suspicion does not require a second opinion.
        3. When a supervisor, manager or department director has a reasonable suspicion that a CDL employee or an employee performing a safety sensitive function may be in violation of this policy, they will transport the employee to the test collection site.
        4. Post-Accident TestingPost-accident testing will be conducted for all accidents when:
          1. the employee is cited for a moving violation of any kind;
          2. any involved vehicle requires towing from the scene; or
          3. any person involved requires medical treatment away from the scene of the accident.
            Post-accident testing will be conducted in all fatal accidents, even if the driver is not cited for a moving violation.Any employee involved in an accident must remain available for testing, up to a maximum of eight hours. Any employee who refuses to remain available will be considered to have refused to submit to testing.
          4. Random TestingTesting that is conducted on an unannounced basis just before, during or after the performance of a driving function or safety sensitive function.
            1. Rate of testing- random alcohol and controlled substance testing shall be administered at an annual rate of at least 50 percent of the average number of driver or safety sensitive positions, throughout the University.
            2. Such testing will be unannounced and reasonably spread throughout the calendar year.
            3. The selection of drivers shall be based upon a random computer-generated list. Each driver will have an equal chance of being selected each time a list is generated.
            4. Any employee selected for testing will immediately report to the designated testing facility.
    4. REVIEW OF TEST RESULTS
      All drug test results will be reviewed by the MRO designated by the University before the results are reported to the University. If the testing facility reports a positive test to the MRO, the MRO will contact the employee to determine if there is an alternative medical explanation for the positive test result. If the employee gives a reasonable and verifiable explanation, the results of the test are reported as negative to the University. In the event the employee is unable to give an alternative medical explanation for the positive test result, the MRO will report the positive test immediately to the University of Delaware’s DOT on-site coordinator who will inform the employee’s department head or designee.
    5. CONSEQUENCES OF A POSITIVE TEST
      1. Any employee found to be in violation of the policy will be subject to discipline up to and including dismissal.
      2. The University may condition continued employment of an employee found to be in violation of this policy upon the employee’s treatment for alcohol or drug problems. In such cases, the University will require the employee to comply fully with all requirements and recommendations of the treatment facility. Failure on the part of the employee to comply with these recommendations will be considered a violation of this policy which may result in disciplinary action up to and including termination.
      3. Rehabilitation with University assistance may be provided from outpatient counseling to admission to a treatment center selected by the University for a period of not more than 30 days or may include counseling sessions with a Substance Abuse Professional (SAP) while continuing normal duties of employment.  An employee who consents to being admitted to a treatment center shall be placed on leave with pay status; provided the employee has accumulated sick leave and vacation days that shall be utilized when available. Employees must adhere to all follow-up guidelines established by an outside professional in rehabilitation counseling. This policy is in accordance with the established University’s Substance Abuse Policy.
    6. RETURN TO WORK AND FOLLOW-UP
      Before a an employee has violated this policy returns to duty requiring the performance of a driving or safety sensitive, the employee shall undergo an alcohol test with a result indicating an alcohol concentration of less than 0.02 and a controlled substances test with a negative result. The employee must submit to a minimum of six (6) unannounced follow-up tests within the first twelve (12) months after returning to work as indicated by the Substance Abuse Professional (SAP).The fee of the initial evaluation is the responsibility of the employee and the fees of the minimum of (6) unannounced follow-up tests are paid by the University.
    7. UNION REPRESENTATION
      Employees covered by a collective bargaining agreement who are required to submit to an alcohol or controlled substance test pursuant to this policy may request union representation at such testing, provided such representation can be obtained within one-half hour of the employee being notified of the need for testing.
    8. CONFIDENTIALITY
      1. All employee alcohol and drug testing results and records will be kept with the strictest confidentiality by the University separate and apart from the employee’s personnel file. The University will release the information to supervisors I managers on a need-to-know Any other release of information by the University will be made only with specific written consent from the employee.
      2. All records regarding this policy will be maintained by the University of Delaware’s DOT on-site Coordinator.
      3. In the event the employee initiates a grievance, lawsuit or any other proceeding that will require a hearing, the University may release relevant information.
      4. Relevant information may also be released by the University to any local, state or federal agency to demonstrate compliance with all rules and regulations.
    9. EMPLOYEE ASSISTANCE PROGRAM
      1. Employees are encouraged to voluntarily seek assistance in dealing with substance abuse. Confidential professional assistance, treatment, planning, and rehabilitation services are available through the University’s Employee Assistance Program, hms, A Health Advocate Company at 800-343- 2186 or hms.HealthAdvocate.com.
      2. The request for assistance for a substance abuse problem will not, in itself, be considered grounds for disciplinary action. A request for assistance will not prevent the taking of appropriate disciplinary action for misconduct or performance problems which may be related to substance abuse.