Drug and Alcohol Policy Best Practices

Tribal governments and their enterprises address the use and possession of drugs and alcohol in the workplace, and the external use impacting the workplace, with policies defining the relevant rules and practices.  If your policy has not been updated for awhile, here are some thoughts regarding some, but certainly not all, of the best practices used by tribes.

Consent.    Before the specific best practices of drug and alcohol policies are addressed, determine whether the employer has included with the employee handbook (or Personnel Procedure Manual), and all of the employees have executed, a comprehensive written consent to the policies, any grievance procedure and any tribal judicial proceedings.  With the pending Dollar General case in the United States Supreme Court (and its potential implications when decided), this recommendation of getting written consent is even more important.

Marijuana.    Whether medical marijuana is legal or not legal in the state sharing a border with a tribe does not generally control the tribe’s policy regarding marijuana use. Moreover, whether the federal government enforces its laws regarding marijuana possession on federal lands (including trust land) again likely does not have a material impact on a tribe’s drug policy.  In the absence of influences from the other sovereigns (other tribes, states, federal) the tribe as an employer should define its drug policy to address the tribe’s objectives.

Prescription Painkillers.    Indian Country has not been spared in the nationwide prescription painkiller epidemic.  The federal government has urged all employers to educate employees about the risks of addiction (and death) in using prescription painkillers.  Employer drug and alcohol policies should include specific language which addresses the impact of painkillers in performing a job.

Safety Sensitive.    For employees in positions that are safety sensitive (bus drivers, heavy equipment operators) the policy should compel the employee to self report the consumption of prescription, non-prescription drugs and over the counter drugs which may affect the employee’s ability to perform the job in a safe manner.  This policy is intended to enhance the employee’s safety and the safety of other employees and the public.  The Americans with Disabilities Act, which is generally not applicable to tribal employers, requires employers to have a dialogue with employees to determine if a reasonable accommodation is possible.

Testing.    Evaluate whether the employer’s testing policies and protocols are effective and fair for the substances which are in use today.  If the employer is using the six panel test required by the federal Department of Transportation the employer is scrutinizing the use of marijuana, amphetamines, cocaine, opiates, Ecstasy and PCP.  Consider whether that panel assists the employer in addressing the use of prescription painkillers or nonprescription drugs  which are common to the employer’s area.  Of course, with this analysis, the employer should make an informed decision regarding the costs of drug tests in an effort to measure the return on the investment of enhanced testing techniques which may assist the employer in meeting its objectives regarding eradication of drugs and alcohol from the workplace.

Define Refusal to Test.    The policy should clearly define a refusal to test and its consequences.  The sample policy included below serves this objective.

Reasonable Suspicion Testing.    Employers should train and retrain human resources and supervisors to assess whether there is reasonable suspicion to test.  The collaborative work between human resources and a supervisor in evaluating the facts which allegedly support a test is a fairer method than leaving individual supervisors to make this decision.

Leadership Testing.    When elected officials subject themselves to the same tests the elected officials require employees to take (random, post-accident, reasonable suspicion) the perception and reality of fairness increases.  When leadership follows the same rules as all other employees, employees are more willing to cast a vote of confidence in the policy and the structure which defines the structure.

In addition to the respectful recommendations set forth above, below is a sample policy adapted from a form used by the Society of Human Resources Professionals.  Of course any form policy should be further refined to reflect the objectives of a specific employer and to conform with any applicable laws.  Moreover, this form policy explicitly references the Drug Free Workplace Act, FMLA and ADA and whether tribes wish to explicitly reference laws which may, or may not, apply to tribal employers is a question which should be addressed.

Drug and Alcohol Policy

Purpose

In compliance with the Drug-Free Workplace Act of 1988, the ABC Tribe has a longstanding commitment to provide a safe, quality-oriented and productive work environment consistent with the standards of the community in which the Tribe operates. Alcohol and drug abuse poses a threat to the health and safety of the Tribe’s employees and to the security of the Tribe’s equipment and facilities. For these reasons, the Tribe is committed to the elimination of drug and alcohol use and abuse in the workplace.

Scope

This policy outlines the practice and procedure designed to correct instances of identified alcohol and drug use in the workplace.  This policy applies to all employees and all applicants for employment of the Tribe. The human resource (HR) department is responsible for policy administration.

Substance Abuse Awareness

Illegal drug use and alcohol misuse have many serious adverse health and safety consequences. Information about those consequences and sources of help for drug or alcohol problems is available from the HR department, which has been trained to make referrals and to assist employees with drug or alcohol problems.

Employee Assistance

The Tribe will assist and support employees who voluntarily seek help for such problems before becoming subject to discipline or termination under this or other Tribe policies. Such employees will be allowed to use accrued paid time off, placed on leaves of absence, referred to treatment providers and otherwise accommodated as required by law. Such employees may be required to document that they are successfully following prescribed treatment and to take and pass follow-up tests if they hold jobs that are safety-sensitive or require driving, or if they have violated this policy previously. Once a drug test has been scheduled, unless otherwise required by the Family and Medical Leave Act or the Americans with Disabilities Act, the employee will have forfeited the opportunity to be granted a leave of absence for treatment, and possible discipline, up to and including discharge, will be unavoidable.

Employees should report to work fit for duty and free of any adverse effects of illegal drugs or alcohol. This policy does not prohibit employees from the lawful use and possession of prescribed medications. Employees must, however, consult with their doctors about the medications’ effect on their fitness for duty and ability to work safely, and they must promptly disclose any work restrictions to their supervisor. Employees should not, however, disclose to the Tribe underlying medical conditions unless directed to do so.

Work Rules

1.    Whenever employees are working, are operating any Tribe vehicle, are present on Tribe premises or are conducting Tribe-related work offsite, they are prohibited from:

a.    Using, possessing, buying, selling, manufacturing or dispensing an illegal drug (to include possession of drug paraphernalia).

b.    Being under the influence of alcohol or an illegal drug as defined in this policy.

c.    Possessing or consuming alcohol.

2.    The presence of any detectable amount of any illegal drug or illegal controlled substance in an employee’s body system, while performing Tribe business or while in a Tribe facility, is prohibited.

3.    The Tribe will also not allow employees to perform their duties while taking prescribed drugs that are adversely affecting their ability to safely and effectively perform their job duties. Employees taking a prescribed medication must carry it in the container labeled by a licensed pharmacist or be prepared to produce it if asked.

4.    Any illegal drugs or drug paraphernalia will be turned over to an appropriate law enforcement agency and may result in criminal prosecution.

Required Testing

Pre-employment

All applicants must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration.

Reasonable suspicion

Employees are subject to testing based on (but not limited to) observations by the supervision of apparent workplace use, possession or impairment. HR, the plant manager or the director of operations should be consulted before sending an employee for testing. All levels of supervision making this decision must use the Observation Checklist to document specific observations and behaviors that create a reasonable suspicion that the person is under the influence of illegal drugs or alcohol. If the results of the Observation Checklist indicate further action is justified, the manager or supervisor should confront the employee with the documentation with another member of management. Under no circumstances will the employee be allowed to drive himself or herself to the testing facility. A member of supervision/management must escort the employee; the supervisor/manager will make arrangements for the employee to be transported home.

Post-accident

Employees are subject to testing when they cause or contribute to accidents that seriously damage a Tribe vehicle, machinery, equipment or property or result in an injury to themselves or another employee requiring offsite medical attention. A circumstance that constitutes probable belief will be presumed to arise in any instance involving a work-related accident or injury in which an employee who was operating a motorized vehicle is found to be responsible for causing the accident. In any of these instances, the investigation and subsequent testing must take place within two hours following the accident, if not sooner. Under no circumstances will the employee be allowed to drive himself or herself to the testing facility.

Follow-up

Employees who have tested positive, or otherwise violated this policy, are subject to discipline, up to and including discharge. Depending on the circumstances and the employee’s work history/record, the Tribe may offer an employee who violates this policy or tests positive the opportunity to return to work on a last-chance basis pursuant to mutually agreeable terms, which could include follow-up drug testing at times and frequencies determined by the Tribe for a minimum of one year but not more than two years as well as a waiver of the right to contest any termination resulting from a subsequent positive test. If the employee either does not complete the rehabilitation program or tests positive after completing the rehabilitation program, the employee will be subject to immediate discharge from employment.

Collection and Testing Procedures

Employees subject to alcohol testing should be driven to a Tribe designated facility and directed to provide breath specimens. Breath specimens should be tested by trained technicians using federally approved breath alcohol testing devices capable of producing printed results that identify the employee. If an employee’s breath alcohol concentration is .04 or more, a second breath specimen should be tested approximately 20 minutes later. The results of the second test should be determinative. Alcohol tests may, however, be a breath, blood or saliva test, at the Tribe’s discretion. For purposes of this policy, test results generated by law enforcement or medical providers may be considered by the Tribe as work rule violations.

Applicants and employees subject to drug testing should be driven to a Tribe designated medical facility and directed to provide urine specimens. Applicants and employees may provide specimens in private unless they appear to be submitting altered, adulterated or substitute specimens. Collected specimens should be sent to a federally certified laboratory and tested for evidence of marijuana, cocaine, opiates, amphetamines, PCP, benzodiazepines, methadone, methaqualone and propoxyphene use. (Where indicated, specimens may be tested for other illegal drugs.) The laboratory should screen all specimens and confirm all positive screens. There must be a chain of custody from the time specimens are collected through testing and storage.

The laboratory should transmit all positive drug test results to a medical review officer (MRO) retained by the Tribe, who should offer persons with positive results a reasonable opportunity to rebut or explain the results. Individuals with positive test results may also ask the MRO to have their split specimen sent to another federally certified laboratory to be tested at the applicant’s or employee’s own expense. Such requests must be made within 72 hours of notice of test results. If the second facility fails to find any evidence of drug use in the split specimen, the employee or applicant will be treated as passing the test. In no event should a positive test result be communicated to the Tribe until such time that the MRO has confirmed the test to be positive.

Consequences

Applicants who refuse to cooperate in a drug test or who test positive will not be hired and will not be allowed to reapply/retest in the future.

Employees who refuse to cooperate in required tests or who use, possess, buy, sell, manufacture or dispense an illegal drug in violation of this policy will be terminated. If the employee refuses to be tested, yet the Tribe believes he or she is impaired, under no circumstances will the employee be allowed to drive himself or herself home.

The first time an employee tests positive for alcohol or illegal drug use under this policy, the result will be discipline up to and including discharge.

Employees will be paid for time spent in alcohol or drug testing and then suspended pending the results of the drug or alcohol test. After the results of the test are received, a date and time will be scheduled to discuss the results of the test; this meeting will include a member of management/supervision, and HR. Should the results prove to be negative, the employee will receive back pay for the times/days of suspension.

Confidentiality

Information and records relating to positive test results, drug and alcohol dependencies, and legitimate medical explanations provided to the MRO should be kept confidential to the extent required by law and maintained in secure files separate from normal personnel files. Such records and information may be disclosed among managers and supervisors on a need-to-know basis and may also be disclosed when relevant to a grievance, charge, claim or other legal proceeding initiated by or on behalf of an employee or applicant.

Inspections

The Tribe reserves the right to inspect all portions of its premises for drugs, alcohol or other contraband. All employees, contract employees and visitors may be asked to cooperate in inspections of their persons, work areas and property that might conceal a drug, alcohol or other contraband. Employees who possess such contraband or refuse to cooperate in such inspections are subject to appropriate discipline, up to and including discharge.

Crimes Involving Drugs

The Tribe prohibits all employees, including employees performing work under government contracts, from manufacturing, distributing, dispensing, possessing or using an illegal drug in or on Tribe premises or while conducting Tribe business. Tribe employees are also prohibited from misusing legally prescribed or over-the-counter (OTC) drugs. Law enforcement personnel should be notified, as appropriate, when criminal activity is suspected.

The Tribe does not desire to intrude into the private lives of its employees, but recognizes that employees’ off-the-job involvement with drugs and alcohol may have an impact on the workplace. Therefore, the Tribe reserves the right to take appropriate disciplinary action for drug use, sale or distribution while off Tribe premises. All employees who are convicted of, plead guilty to or are sentenced for a crime involving an illegal drug are required to report the conviction, plea or sentence to HR within five days. Failure to comply will result in automatic discharge. Cooperation in complying may result in suspension without pay to allow management to review the nature of the charges and the employee’s past record with the Tribe.

Definitions

“Tribe premises” includes all buildings, offices, facilities, grounds, parking lots, lockers, places and vehicles owned, leased or managed by Tribe or on any site on which the Tribe is conducting business.

“Illegal drug” means a substance whose use or possession is controlled by federal law but that is not being used or possessed under the supervision of a licensed healthcare professional. (Controlled substances are listed in Schedules I-V of 21 C.F.R. Part 1308.)

“Refuse to cooperate” means to obstruct the collection or testing process; to submit an altered, adulterated or substitute sample; to fail to show up for a scheduled test; to refuse to complete the requested drug testing forms; or to fail to promptly provide specimen(s) for testing when directed to do so, without a valid medical basis for the failure. Employees who leave the scene of an accident without justifiable explanation prior to submission to drug and alcohol testing will also be considered to have refused to cooperate and will automatically be subject to discharge.

“Under the influence of alcohol” means an alcohol concentration equal to or greater than .04, or actions, appearance, speech or bodily odors that reasonably cause a supervisor to conclude that an employee is impaired because of alcohol use.

“Under the influence of drugs” means a confirmed positive test result for illegal drug use per this policy. In addition, it means the misuse of legal drugs (prescription and possibly OTC) when there is not a valid prescription from a physician for the lawful use of a drug in the course of medical treatment (containers must include the patient’s name, the name of the substance, quantity/amount to be taken and the period of authorization).

Reasonable Suspicion and Post-Accident Testing Protocol

1.    The employee will be advised that the Tribe believes that there is reasonable suspicion to believe that he or she is affected by illegal drugs or alcohol (or due to the nature of the accident the policy mandates this) and that this test is being offered to confirm or deny this suspicion.

2.    The employee will be transported to any one of the Tribe’s contracted testing facilities (e.g., health services, prompt care or the emergency department). One member of management or a designated attendant will accompany the employee. Under no circumstances will the employee be allowed to drive himself or herself to the testing facility.

3.    Prior to leaving for the testing facility, supervision/management will contact the testing facility to inform it that a staff member from Tribe will be arriving and will need a drug or alcohol test completed.

4.    The employee should be provided water to drink prior to leaving the Tribe premises.

5.    The employee should be given reasonable time—not to exceed 15 minutes—to secure photo ID.

6.    The employee to be tested must present a photo ID (i.e., a driver’s license or state ID card) to the testing facility staff before the specimen can be obtained. Ensure that the employee brings the photo ID with him or her when leaving Tribe premises.

7.    The employee to be tested must sign a consent form provided by the testing facility. Refusal to sign is addressed under the “Consequences” section of this document.

8.    A Tribe representative must sign as a witness to the collection procedure, along with the tested employee.

9.    After returning to the Tribe or when leaving the testing facility, the supervisor/manager must make arrangements to transport the person home (unless testing results are immediate). Under no circumstances will the tested employee be allowed to drive himself or herself home.

Enforcement

The HR department is responsible for policy interpretation, administration and enforcement.

Drug and Alcohol Policy Certificate of Receipt

I hereby certify that I have received a copy of this latest version of the Tribe Drug and Alcohol Policy.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.