AFSCME Local 328
4006 Barbur Blvd, Portland, OR 97239
MEMORANDUM OF UNDERSTANDING #1 Drug and Alcohol Testing
MEMORANDUM OF UNDERSTANDING #1
Drug and Alcohol Testing
Drug and Alcohol Free Workplace
To promote the health, safety and productivity of employees, it is the Employer’s policy to provide a drug and alcohol-free workplace. To support this goal, the Employer has established a testing program consisting of pre-employment testing of applicants for employment in specified positions. The Employer may also conduct testing of employees transferring to testable positions from non-testable positions in accordance with the provisions set forth below. The Employer and the Union have further established a program of for cause testing for employees who are under suspicion of being under the influence of controlled substances while at work and that program is incorporated in this memorandum.
Drug Testing for Testable Positions
A testable position is a position that the Human Resources Department has designated for drug testing. Testable positions include all direct patient care positions, all safety-sensitive positions and other special needs positions. A list of testable positions shall be maintained in the Human Resources Department and shall be made available upon request. The Employer will provide to the Union criteria used to determine testable positions.
The Employer maintains a pre-employment testing program of external applicants in testable positions. The Employer may also conduct post-offer testing of an internal employee applicant who is transferring from a non-testable position to a testable position. The Employer shall provide clear notice to internal applicants of any posted position designated as testable.
For Cause Drug and Alcohol Testing
Random drug testing is not permitted.
Reasonable cause for drug and alcohol testing should include conduct and/or current indicators of impairment such as the following:
Disregard for safety of others
Taking needless risks
Unexplained “disappearances” from the job
Lapses in concentration or coordination
Complaints from co-workers
Poor judgment/increased mistakes
Observed impairment of job performance
Serious workplace accident with a degree of employee fault or which might have been prevented by employee behavior
A workplace accident following a series of similar accidents which results in injury, financial loss or equipment damage
Evidence of drug tampering in the employee’s workplace
Other erratic conduct or behavior
Odor of alcohol
Lack of muscular coordination or control
Inability to verbalize
Presence of drug paraphernalia
Deteriorating physical appearance or hygiene
Observations such as the above factors may cause a supervisor to request a reasonable suspicion evaluation.
One employee who is trained to evaluate reasonable suspicion will meet with the employee. The evaluator must agree with the supervisor that the employee exhibits reasonable suspicion of impairment due to drug or alcohol use.
An evaluator is defined as any employee who has been given “reasonable evaluation” training. Reasonable evaluation training will be made available to all managers, safety teams, and Union stewards. Stewards will not be required to perform reasonable suspicion evaluations on bargaining unit members.
Requirements (and Testing Procedures)
An employee who has been determined to be exhibiting reasonable suspicion of impairment may be required to submit to a drug or alcohol test and the evaluators shall record their observations and conclusions on a form provided by the Employer.
The employee to be screened shall be relieved of his/her duties and arrangements will be made for administration of the test. The employee shall remain on paid status until the testing process is complete and the employee returns either to work or home as appropriate. If the Employer determines that the employee should not work until the test results are received and evaluated by the Employer, the employee shall be placed on paid administrative leave status until such time as the Employer’s evaluation is complete. Refusal or failure to submit to testing is cause for disciplinary action.
Tests will be paid for by the Employer.
Test results shall be made available on a need to know basis and in accordance with federal and state laws. Employees may be asked to provide information as necessary to interpret drug screen results. Such information will be considered confidential.
The Employer shall implement the requirements of this policy and establish protocols for testing. At a minimum such protocols shall comply with ORS 438.435, as revised, and shall include the following:
Testing administrator: Employees shall not be tested by the Employer. Testing shall be conducted by a third-party laboratory that is certified by the appropriate certifying agency. The sample may be collected in OHSU locations mutually designated by the Employer and the Union, provided that the confidentiality and privacy of the employee is preserved, or at a certified testing laboratory facility as determined by the Employer.
Testing mechanisms: A split sample shall be taken so that in the event of a positive test a confirming test shall be made by the use of Gas Chromatography/Mass Spectrometry method. If at any time a test is developed with a higher rate of reliability than the GC/MS test, then it shall be used for the confirmatory test.
Sample Procedures: Prior to testing, the employee’s supervisor shall present and read to the employee a statement of the employee’s rights under this article prepared by jointly by the Union and the Employer. At the test site, the employee will be required to list all medications/drugs currently being used by the employee on a form supplied by the testing facility. This list will be used by the facility only for test determination purposes. Testing will be limited to urine specimens; no employee will be required to take a blood test. The urine sample shall be taken in such a manner as to insure the authenticity and reliability of the sample and the confidentiality of the employee.
The sample will be divided into two equal parts, separately sealed, labeled and stored. The first sample will be used for the test and the confirmatory test in the event that the initial test is positive. In the event the initial drug screen and confirmatory test are positive, the second sample will be available to the employee to have tested at a laboratory of the employee’s own choosing at the employee’s request.
Employees shall have the right of Union representation during the process up until the sample is collected and shall be so advised by the employer at the time the supervisor requests a reasonable suspicion evaluation. However, the absence of an available steward shall not delay for more than 45 minutes the timely obtaining of a sample.
If at any point in this process the results of the screen are negative, the process shall be halted; the employee shall be given a copy of all records relating to the drug test, including the reasonable suspicion evaluation, developed during the process; and all records of the process in the Employer’s possession shall be destroyed following the pendency of the grievance period, provided the employee has filed no grievance or other administrative or legal appeal. The records to be destroyed are those directly related to and referencing the drug testing process. Documentation of employee conduct during the period of time in question which does not reference the drug test may be maintained.
An employee who tests positive shall be given a copy of all records developed during the process and be treated in accordance with Section 8 below.
If the results of the test are negative, the employee and the Union may challenge through the grievance procedure whether reasonable suspicion existed at the time the test was ordered. However, if the employee elects to challenge whether reasonable suspicion existed, the Employer will have the right to retain all documentation which reasonably supports the Employer’s position.
If the results are positive, neither the Union nor the employee shall have the right to challenge whether reasonable suspicion existed for the ordering of the test.
Waiver of Test
Employees with no previous deferral of discipline for substance abuse may waive a test by agreeing to enter rehabilitation. The Employer shall have the right to deny such right of waiver if it has reasonable suspicion of diversion of drugs or other offenses of an equally serious nature. A waiver shall be deemed to be the equivalent of a positive test result.
The Union and the Employer shall mutually agree on the training program used to train employees in making a “reasonable suspicion” determination.
The Employer recognizes that employees are the organization’s most valuable resource and is committed to maintaining their safety, health and well-being. Abuse of alcohol and drugs is recognized as an illness that can be abated through drug screening, education, treatment and rehabilitation. To that end, employees with drug and/or alcohol problems are encouraged to seek professional assistance. The Employer has adopted this rehabilitation policy to help employees whenever possible before taking disciplinary action. All requests for assistance and the results of treatment and counseling shall be kept as confidential as reasonably possible.
Employees should contact the Benefits Office in Human Resources for information about available coverage for or the use of sick time, other paid or unpaid leave of absence or state and federal leave to participate in treatment. The Employer offers an Employee Assistance Program (EAP) and employees seeking assistance can contact the EAP or other designated Employer-approved programs for confidential professional assistance. Questions to the Benefits Office and/or the EAP will be handled in confidence. It is the Employer’s policy to make every reasonable effort to safeguard the confidentiality of any request for employee assistance.
Discipline, Referral Agreement and Return to Work Agreement
While employees who violate this policy may be disciplined, it is the Employer’s intent to correct problems associated with drug and alcohol abuse through referring first time offenders to the contracted EAP or other approved rehabilitation programs. If the EAP or another approved rehabilitation program recommends a course of treatment, that recommendation shall be the basis for a Referral Agreement. Referral agreements are entered into for the purpose of setting the conditions under which the employee may defer discipline. Therefore, when an employee voluntarily enters into rehabilitation in lieu of a required test or when he/she receives a positive test result, disciplinary action related to a positive test or voluntary disclosure will be withheld, pending satisfactory completion of the referral agreement requirements. Only employees found to be suitable for rehabilitative treatment will be eligible for deferral of discipline.
Employees who waive the test or employees who test positive may access sick leave, vacation and/or comp time in lieu of administrative leave without pay during the period of time between the waiver or positive test result and the time the employee returns to work under the Return to Work Agreement. The Employer may place the employee on administrative leave with pay during such period at the Employer’s discretion. Employees shall be advised that they may be eligible for FMLA leave during this period and that they should work with their health care provider to make this determination.
Employees who test positive may be subject to disciplinary action up to and including discharge, or to a requirement that the employee enroll in a rehabilitation, treatment or counseling program.
Other than when exercising waiver in accordance with Section 6 above, employees who refuse to test, or who interfere or subvert the testing process, are considered to be insubordinate and subject to appropriate discipline.
The terms and conditions of each referral agreement will be put in writing and signed by the employee, the Union and the Employer. At the employee’s request the requirement for Union signature may be waived but agreements made without the Union’s signature will not be precedent setting. Each referral agreement will contain some basic core requirements but will be designed giving consideration to the individual’s circumstances.
Return to Work Agreement
The Employer may require an employee to participate in an Employer-approved education or rehabilitation program. Employees who do so before their drug or alcohol problem leads to initial or future performance problems will be supported in their efforts to seek help. Employees who delay seeking help will not be excused from consequences of their performance deficiencies.
Return to work agreements set the conditions under which the employee returns to work. Upon satisfactory completion of the terms of the Referral Agreement, the employee will enter into a Return to Work Agreement which may contain “last chance” provisions. Any discipline for the positive test will continue to be withheld pending successful completion of the terms of the Return to Work Agreement.
Employees will only be allowed to access rehabilitation in lieu of discipline one time. An employee who fails to cooperate, abandons or does not complete the terms of the Referral Agreement will receive all previously withheld discipline.
Whenever an employee agrees to a Referral Agreement and a subsequent Return to Work Agreement as a condition of continued employment, that employee shall continue to be subject to the same rules, working conditions and disciplinary procedures in effect for other employees.
An employee referred for inpatient treatment of substance abuse problems will be allowed to return to work when all terms of the referral agreement have been met and the Employer receives appropriate notification from the treatment facility that the employee has successfully completed his/her course of treatment.
Employees who are referred to outpatient treatment will be permitted to return to work providing all other terms of the referral plan are met and the treatment provider agrees that returning the employee to work is consistent with the treatment plan.
Return to Work Agreements may include regular unannounced testing for a reasonable period as specified in the Return to Work Agreement.
One of the purposes of this program is to provide a safe workplace through treatment and rehabilitation of those identified as having a dependency problem. Accordingly, if the employee, during or after appropriate treatment and rehabilitation, again is found to be in violation of this policy he/she will be subject to discipline up to and including termination of employment.
The Union and Employer have developed documents pursuant to this Memorandum of Understanding, including the Advice of Rights, the supervisor’s checklist, and the reasonable evaluation training.
AFSCME LOCAL 328
OREGON HEALTH & SCIENCE
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