Substance abuse
What must a person's right to privacy be weighed against the governments need to know because of its interests?
- Public Safety - public trust and integrity - morale and safety in the workplace - loss of productivity - civil liability
Note: if only alcohol is suspected, the employee should be returned to full duty the following day if completely recovered from its effects.
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Note: if the results are positive, the office of investigations, through the chain of command, should be consulted for guidance.
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Note: in no event shall the confirming official be the suspected employees immediate supervisor or the person who made the initial observation leading to reasonable suspicion.
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Note: once confirming official has been notified inform the employee that a decision has been reached to administer the test, ensure the employee the sample will be collected in a proper setting, advise the employee of the possible consequences of a positive test, advise the employee a refusal will result in adverse action, make arrangements for testing and transportation if necessary, and if it is a uniformed employee involved, take and secure the employees duty weapon and belt until he is released for duty
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Note: when a criminal investigation is conducted, a reasonable suspicion report shall be completed.
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Note; without those safeguards, the necessity and appropriateness of the test could successfully be challenged.
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A positive blood alcohol level is what for substance testing?
.04% However, any detected level of alcohol is prohibited by the inconsistent and incompatible activities statement.
Chapter 12 not included.
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Note: if after initial discussions with the employee, reasonable suspicion of substance abuse still exists, the reasonable suspicion must be approved by the confirming official
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What should be sought when there is a determination of substance abuse by nonsensitive employees?
1. Adverse action should be sought. 2. EAP availability should be made known to the employee 3. Supervisor shall review the applicable MOU when dealing with a nonsensitive employee for additional actions are actions they are precluded from taking.
The supervisors final determination for nonsensitive employees will be based on what?
1. Articulable facts 2. Close observation 3. Good faith
The role of this confirming official shall be to:
1. Determine if the facts support reasonable suspicion or not 2. Ensure accurate and proper application of the rules 3.provide guidance and direction 4. Authorized the substance test
What general characteristics must be present in the non-peace officer positions for them to be designated sensitive?
1. Duties involve a greater than normal level of trust, responsibility for or impact on the health and safety of others And 2. Errors in judgment, inattentiveness or diminished coordination, dexterity or composure while performing duties could clearly result in mistakes that would endanger the health and safety of others And 3. Employees in these positions work with independence or perform such tasks that it cannot be safely assume that mistakes could be prevented by a supervisor
What are the three constitutional issues in the debate about substance testing?
1. Fourth amendment - search and seizure 2. Fifth amendment - self-incrimination 3. 14th amendment - due process
Upon initially contacting the employee, the supervisor should:
1. Inform the employee of the observations and why they are cause for concern. 2. Listen to the employees explanation and give it appropriate consideration before reaching a decision to test. 3. Maintain as much privacy and confidentiality as possible 4.be direct, factual, firm, calm, and professional 5. Avoid apologizing for the actions or engaging in pointless debate or discussion 6. Seek assistance of another supervisor or manager if the employee is violent or threatening 7. Seek medical help immediately if the employees condition warrants it. 8. Keep continuous observation, do not allow employe to consume large amounts of liquid, this is a critical step. 9. Do not allow the employee to converse with fellow workers.
What are other legal concerns when it comes to substance testing?
1. Negligent supervision 2. Negligent retention 3.wrongful discharge 4. POBR
Before collecting the sample a supervisor shall:
1. Obtain a kit provided by the department 2. Open the bag and locate the checklist 3. Ensure all required items are included 4. Read the instructions on the checklist 5. Fill out chain of custody form and seal 6. Collect the sample in the container provided in the kit 7. Ensure at least 60 mL (approximately 2 fluid ounces) of urine is collected 8. Secure the sample in a locked evidence locker 9. Make arrangements with the designated courier to have it transported to the lab 10. Notify OIA of the sample collection
What must a supervisor ensure for the substance test to be effective?
1. Reasonable suspicion is supported by proper documentation 2. The sample is properly collected 3. Chain of custody is maintained 4. The employees rights are not violated
No state employee who is on duty or on standby for duty shall what?
1. Use, possess, or be under the influence of illegal or unauthorized drugs or other illegal mind altering substances 2. Use or be under the influence of alcohol to any extent that would impede the employees ability to perform their duties safely and effectively
Cal department of human resources requires that the observations leading to reasonable suspicion be documented and that a copy of this information must be provided to the affected employees within how many hours?
48 hours except when not reasonably possible or were other time frames are dictated by the MOU
What should be made when substance abuse cannot be rolled out?
A closer observation.
What test is run when the sample arrives at the laboratory?
A screening test. It's a screen test is positive a more sophisticated confirmation test will be run.
When does the testing process begin?
After the confirming official has authorized the chemical test
Who shall alert a supervisor to indications that another employee is involved in substance abuse?
All departmental employee shall alert
The following have been designated and approved as sensitive positions.
All peace officers, all cadets, automobile mechanics, automotive technician series, CVIS, dispatchers, operators, dispatch supervisor, gunsmith, heavy truck driver, lead auto mechanic, lead motor mechanic, motor carrier specialist, motorcycle mechanic, school pupil transportation safety coordinator.
Supervisors are or are not required to provide the employee with immediate documentation of the cause for reasonable suspicion.
Are not required.
What status should the employee be placed on for the remainder of the shift on the day of the test or refusal to take a test?
Dock status because he or she is incapable of performing his or her duties. On the day following the test the employee should be placed on administrative time off subject to approval through chain of command to the appropriate assistant Commissioner.
If a condition which was previously not known to the department or the employee is discovered the employee may be what?
Employee may be directed to complete a fitness for duty examination.
Only employees serving and what type of positions shall be subject to substance testing?
Employees serving in sensitive positions
If the test results are negative, the reasonable suspicion report does not need to be completed and a copy does not need to be provided to the employee.
False. Reasonable suspicion report must be completed and a copy provided to the employee regardless of the results.
an interrogation should or shall occur after the sample is collected or a later date when additional information is known.
In most instances the interrogation should occur after the sample is collected.
What typically triggers reasonable suspicion or is an indication that something is abnormal about the employees behavior?
Initial suspicion. Examples are an industrial accident, unusual demeanor or appearance, atypical behavior, or abnormal work performance.
After a reasonable period of time the employees unable to provide a sample, how will this be treated?
It will be treated as a refusal which constitutes a presumption of impairment
Unless specifically permitted in ___, an employee is not entitled to representation during the collection of the sample.
MOU
During a substance abuse investigation interview what questions should be asked?
Only those questions pertaining to the employees possible need for medical attention should be asked. Deviation from this could lead to POBR violations
When will personnel in nonsensitive positions be tested?
Only when the department receives an unsolicited request by the employee. A voluntary test.
The use of what device is not authorized to establish reasonable suspicion?
PAS Device
Supervises investigating suspected substance-abuse must remain aware of what?
Possible criminal violations
Negative results will be communicating directly to the medical review Ofc. who will do what?
Relay the information to the department in the following order; employees commander or division commander or appropriate assistant Commissioner or directly to OIA
Positive test results and the documented reasonable suspicion will become part of what?
Request for adverse action file.
Uniformed employees should or shall be given the opportunity, under supervision, to change into civilian clothing before being transported to a collection site.
Should be given the opportunity
For negative samples how are samples disposed of?
Stored for three weeks and then destroyed.
Supervisors should or shall prepare a memorandum explaining their roles and the employees rights relative to the substance test.
Supervisor shall prepare.
A portion of the sample may be split and reanalyzed at who's expense?
The employees expense
Before any action can be taken against employee what must happen?
The sample must be properly collected and analyzed. After the test the department must be able to testify to the fact that the sample is unadulterated.
Who pays for a voluntary employee test?
The state
Note: The supervisor, during this interview, can question the employee regarding abnormal behavior, inefficiency, absenteeism, tardiness, or unusual appearance.
This is part of the process to eliminate substance abuse as a cause for reasonable suspicion.
If a peace officer is involved his or her peace officer powers will or will not be immediately suspended along with any request for secondary employment.
Will be suspended immediately and required to surrender all state property. Suspensions will remain in effect until the results of the test are known.
What is defined as a sensitive position within the department?
Any peace officer as identified in section 830 of the Penal Code and any other position in which drug or alcohol affected performance could clearly endanger the health and safety of others.
What must be established in order to avoid countercharges of sample tampering ?
Chain of custody. Those handling samples and their reasons for doing so must be carefully documented.
What are the six elements that are critical if the program is to be successful?
Consistency, confirmation, collection of sample, chain of custody, Control of quality, contracts.
Positive results are communicated to the medical review officer for further evaluation which includes what?
Contact in the employee directly to determine if there is legitimate medical explanation for the positive test such as legal prescriptions.
Every effort should be made to maintain a separation between what?
Criminal and administrative investigations
If the supervisor believes criminal violations exist, what should be conducted first?
Criminal investigation should be conducted prior to the administrative investigation
The purpose of substance testing is to determine what?
Current impairment rather than past behavior. Information about employees actions several weeks earlier alone would not establish reasonable suspicion under these rules.
Information must be considered confidential and shall be released only to who:
Employee, individual designated in writing by the employee, medical review Ofc., Cal HR, individuals who need the records to supervise the employee, determine or assist in determining what action the commissioner should take in response to the test results, or respond to appeal the litigation arising from the substance test.
For uniformed employees evidence gathered during what can be used to support what?
Evidence gathered during a criminal investigation can be used to support administrative investigation but not vice versa.
All alcohol testing will be conducted using what?
Evidential breath testing devices
T or F The employee will be allowed to drive him or herself home.
False. Arrange to have the employee transported home. If the employee refuses the transportation employee shall be kept at the office until arrangements can be made.
T or F If an employee who wishes to provide a voluntary sample refuses or is unable to sign Page 2 of the CHP 202X, the test will not be conducted.
False. Supervisor will make a notation of the circumstances in the signature box and the employee will be permitted to provide a voluntary sample.
Who is considered the confirming official?
For the purposes of the department substance testing program, the confirming official is the first designated manager in the supervisors chain of command.
Any determination of reasonable suspicion must be made in what?
Good faith. It cannot be made with malice, personal motive, or as an act of reprisal.
Reasonable suspicion cannot be based on what?
Hunches, intuition, or gut feelings.
What shall apply when a supervisor acts upon an anonymous tip?
If considered credible, tips may be the basis for initiating closer observation. If this observation does not yield facts or evidence to support the tip the tip is alone is not sufficient to order a test. An internal investigation may be initiated whether or not a test is authorized.
What takes precedence when an MOU conflicts with the department of personnel administration rules ?
MOU shall take precedence
Who makes the final determination of the test results?
Medical review Ofc. A positive lab result may not always be supported by the review officer.
The results of the test will be communicated directly to who?
Medical review Officer. Telephonic the notification is made and approved test results are posted on a secure website
CalHR's policy may be superseded by what?
Memorandum of understanding. Supervisors and managers are reminded to review applicable MOUs.
What are the requirements for authorized medical or custodial personnel to collect a urine sample?
Must be the same sex and actually watch the urine leave the employees body. The supervisor is to confirm that the sample will be collected under direct observation.
No employee should or shall attempt to perform duties which, because of drugs taken due to a legal prescription, cannot be performed without posing a threat to the health and safety of the employee or others.
No employee shall attempt
Releasing the substance-abuse testing information shall be released only to the extent necessary. This information will be released on what kind of basis?
On a strict need to know basis.
Positive samples shall be securely stored and frozen at -20°C or lower for how long?
One year to ensure availability for retesting in case of appeal or litigation. The positive sample will be retained indefinitely upon notification of a challenge.
When can criminal arrest or investigation reports involving nonuniformed employees being used to support an administrative investigation?
Only if the incident described in the report resulted in a conviction. Administrative investigators may conduct interviews of criminal investigators to gather evidence though.
If the medical review Ofc. is unable to reach the employee for how many days will the test be considered positive by noncontact?
Seven days.
The employees dock time on the day of the test should or shall be adjusted to a paid status.
Shall be adjusted to a paid status.
A reasonable suspicion report should or shall be completed whenever a determination of reasonable suspicion of workplace substance-abuse leads to substance testing.
Shall be completed.
Employees should or shall be entitled to representation in any other discussions with the medical review Ofc.
Shall be entitled.
If an employee refuses to cooperate at any stage of the collection process they should or shall be ordered to cooperate and advised that failure to do so may subject them to disciplinary action for insubordination.
Shall be ordered to cooperate. Do not attempt or threaten to use physical force to secure a sample.
How shall the employee accomplish providing information about factors other than illegal substance use to the medical review Ofc.?
Shall be provided to the medical review Ofc. by mail. The envelope shall be opened by the medical review Ofc. only upon a positive test result.
When the test results are known, the employee should or shall be returned to full duty if the results are negative and there are no other causes for action.
Shall be returned to duty.
Supervisors should or shall ensure the employee is provided with a memorandum describing their rights and responsibilities regarding outcome of the test.
Shall ensure the employee is provided with it
The sample collection process should or shall include an opportunity for the employee to provide information about factors other than illegal substance use, such as legally prescribed medication.
Shall include.
Who shall the command notify once the sample has been collected?
Shall notify the substance testing coordinator at OIA either by email or fax no later than 48 hours after the specimen is collected.
The employee should or shall receive a full copy of any test results and related documentation of the testing process.
Shall receive a full copy.
Negative test results should or shall not be included in the employee's personnel file.
Should not be included The information shall be forwarded to OIA as confidential material and maintained in a separate file for five years.
Reasonable suspicion defined:
Specific articulable facts or evidence that an employee may have violated the substance abuse policy and substance testing could reveal evidence in support of a violation
The state's substance testing policy requires the involvement of who in all substance test as a confirming official before any sample can be collected?
Specified managers
Who must approve the supervisors foundation for reasonable suspicion?
Specified managers. This approval may be given by telephone if a manager is not on scene and immediately available.
Who plays the most important role in the substance testing program?
Supervisor Supervisor Julie had the routine, daily contact with the employee.
Who must prepare a reasonable suspicion report using the CHP 202X?
Supervisor who made the initial determination of reasonable suspicion
If transportation is necessary who should provide it?
Supervisor who made the initial observation and developed the reasonable suspicion. This limits the number of people involved and provides a supervisor more time to observe the employee.
CalHR requires what when it pertains to reliable informant?
That the informant be a peace officer who is willing to publicly testify on behalf of management if it becomes necessary. CalHR also requires the employee in question be told who the informant is, what the informant said, and be given an opportunity to respond to this as part of the determination of reasonable suspicion.
Reasonable suspicion exist only after what?
The appointing power or a designee (confirming official) has also considered the facts and/or evidence and agrees that they constitute a finding of reasonable suspicion.
What must supervisors be mindful of and refer to covering each involved employee?
The appropriate contract or memorandum of understanding.
What must the department in sure about the contracting laboratory?
The laboratory meets excepted scientific standards and that each sample is properly handled and tested. The quality of the testing procedure will be continually audited to ensure accuracy.
T or F The right to representation does not preclude a supervisor for making initial contact with the employee in an appropriate confidential interview.
True.
T or F From the moment reasonable suspicion is developed until the time a sample is provided, the employee should remain under continual supervisory observation.
True. The employee should not be allowed to go to a car, locker, or desk without supervision.
T or F The employee should not be allowed to avoid his or her bladder until the sample is collected.
True. This is done in order to secure the best possible sample.
How many test kits are supplied to each office and how shall they be stored?
Two test kits and they shall be stored in a secure location such as a file cabinet or locker in the sergeants office.
Under what circumstances will be CHP 202X indicating a negative result be retained in the employee's personnel file folder?
Under no circumstances. The information is forwarded to the office of internal affairs as confidential material and maintain for a period of two years from the date of the test or until litigation is adjudicated.
If breathalyzer results are .00% /00% a ____ test should be secured to determine the cause of impairment .
Urinalysis test should be secured
What is the primary test used for determining whether not an employee has abused drugs?
Urine Employee suspected of being under the combined influence of alcohol and drugs are required to submit to both a urine and a breath test
Substance testing experts believe the best time to collect a sample is when?
Within 2 to 4 hours of the initial observation.
Where can a urine collection be conducted?
Work location or any approved medical or custodial facility by authorized personnel.
What is a CHP 202X?
Workplace substance abuse investigation/voluntary testing report
Are employees permitted to drink water for the purpose of aiding them in providing a sample?
Yes. It should not adversely affect the integrity of the sample.
