Current through Register Vol. 50, No. 9, September 20, 2024
A.
Purpose-to provide a comprehensive program of substance abuse education and to
establish guidelines for employee drug and alcohol testing.
B. Applicability-deputy secretary,
undersecretary, chief of operations, regional wardens, wardens, director of
probation and parole, and director of prison enterprises. Each unit head is
responsible for ensuring that appropriate unit written policy and procedures
are in place to comply with the provisions of this regulation and for conveying
its contents to all concerned.
C.
Policy. Substance abuse is a major contributor to criminal activity and is
particularly detrimental to the department's mission to provide for the safety
of employees and the public. Employees who engage in substance abuse may not be
able to perform the essential functions of their positions and may be less
likely to enforce policies and procedures effectively to control or to prevent
illicit drug and alcohol use by other employees and offenders. Therefore, it is
the secretary's policy to promote increased employee awareness of substance
abuse and to achieve and maintain a workplace free of drugs and
alcohol.
D. Definitions
CAP-FUDT-Certified Laboratory-a laboratory
certified for forensic urine testing by the College of American
Pathologists.
Collection Site-a designated place for the
employee to provide a urine specimen to be analyzed for the presence of
drugs.
Custodian of Records-a staff person
responsible for the maintenance, care, and keeping of records related to drug
and alcohol testing, including the date of such test, the name of the person
performing the test, the number of tests performed, and a summary of the
results of each type of test.
Drug Testing-
a. for the purpose of this regulation, drug
testing is comprised of two components:
i.
preliminary analysis (using the testing instrument available on the current
contract issued by the procurement and contractual review division and approved
by the secretary); and
ii. formal
testing;
b. the
application of formal testing may be contingent upon the results of the
preliminary analysis. Alcohol testing consists only of administering the
approved test and replicating any positive results.
Employee-any individual employed by or
appointed to a position with corrections services (including student workers)
or by an outside agency or provider or any individual under contract with
corrections services who works in an institution or division.
a. This does not necessarily confer
"employment" status on independent contractors or employees of outside agencies
but serves to define a class of people who are subject to participation in the
drug-free workplace program.
Formal Testing-a second analytical procedure
following a positive result on a preliminary analysis to identify the presence
of a specific drug which is independent of the preliminary analysis using a
different technique and/or chemical principle. Formal testing is conducted by a
CAP-FUDT or SAMSHA-certified laboratory.
Hemp-as defined by 7 U.S. Code §1639(1), the
term hemp means the plant Cannabis sativa L. and any part of
that plant, including the seeds thereof and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or
not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3
percent on a dry weight basis.
Marijuana-as defined by 21 U.S. Code
§802(16), all parts of the plant Cannabis sativa L. with a delta-9
tetrahydrocannabinol (THC) concentration of greater than 0.3 percent on a dry
weight basis, whether growing or not; the seeds thereof; the resin extracted
from any part of such plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of such plant, its seeds or resin. The term
marijuana does not include hemp as defined by
7 U.S. Code §1639
Medical Review Officer
(MRO)-a licensed physician designated by the
unit head who is responsible for receiving positive preliminary analysis
results. The MRO must possess knowledge of substance abuse disorders and
appropriate medical training to determine and evaluate an individual's positive
result together with his medical history and other relevant biomedical
information.
Offender-anyone in the physical custody of
the Department of Public Safety and Corrections or under the supervision of the
Division of Probation and Parole.
Preliminary Analysis-an immunoassay screen
to detect the presence of drugs or metabolites using approved drug testing
instruments. (See Paragraph H.1 for additional information.) The results of the
preliminary analysis are to be used solely to indicate the need for additional
formal testing, except for those who are being tested for preemployment
purposes. In this case, when the preliminary analysis is positive, it shall be
sufficient cause to either remove the prospective employee from consideration
for employment or appointment or be cause for conducting formal testing. If
formal testing is conducted and the result is positive, this shall be cause for
the prospective employee's elimination from consideration for employment or
appointment.
Prospective Employee-any person who has made
an application to an employer, whether written or oral, to become an
employee.
Safety/Security Sensitive Position-any job
which directly or indirectly affects the safety and security of others. For the
purpose of this regulation, safety/security sensitive positions are those which
involve direct contact with offenders and those having access to confidential
information relative to the care, confinement, or supervision of
offenders.
SAMSHA-Certified Laboratory-a laboratory
certified for forensic drug testing by the Substance Abuse and Mental Health
Services Administration.
SAMSHA Guidelines-the mandatory guidelines
for federal workplace drug testing programs as published in the Federal
Register on April 11, 1988 (53 FR 11970), revised on June 9, 1994 (59 FR
29908), further revised on September 30, 1997 (62 FR 51118) and any further
revised guidelines issued by SAMSHA.
Unit Head-the head of an operational unit,
specifically, the undersecretary, warden, director of probation and parole, and
director of prison enterprises.
E. General
1. Each unit head is responsible for
implementation of a substance abuse education program that requires compliance
with this regulation. Each employee is responsible for refraining from illegal
or prohibited use, possession, sale or manufacture of controlled substances and
from reporting to work or working while under the influence of alcohol, illegal
or prohibited drugs or impaired by prescription drugs.
2. For the purpose of this regulation,
illegal or prohibited use of a controlled substance shall include any detection
of marijuana or THC regardless of the source of its detection, whether obtained
through a physician's recommendation in accordance with
R.S.
40:1046, purchased over-the-counter legally
according to the laws of this state or any other state, or otherwise. Marijuana
and THC remain Schedule I controlled substances under the Controlled Substances
Act. Therefore, any detection of marijuana or THC on a drug test shall be
considered a violation of this regulation.
F. Type of Testing
1. Pre-Employment. Drug testing shall be
conducted prior to employment. (See Section D for additional information.) The
unit human resources office is responsible for ensuring all new employees are
given a copy of this regulation upon hire. All new employees shall sign and
date the receipt of drug-free workplace regulation. A copy of this form shall
be maintained in the employee's personnel file.
2. Reasonable Suspicion/Probable Cause.
Reasonable suspicion/probable cause screening and subsequent testing, as
appropriate, may be based on:
a. observable
phenomena, such as direct observation of drug use or possession and/or the
physical symptoms of being under the influence of a drug or alcohol or when the
odor of alcohol, marijuana smoke, or other substance is present;
b. abnormal conduct or erratic
behavior;
c. arrest or conviction
for a drug or alcohol-related offense, or the identification of an employee as
the focus of a criminal investigation into illegal drug possession, use, or
trafficking (the term shall also mean distribution);
d. information provided by reliable and
credible sources or independently corroborated;
e. newly discovered evidence that the
employee tampered with a previous drug or alcohol test;
f. credible allegation or confirmation of
involvement in a significant violation of policy in which judgment may have
been impaired.
3. Post
Accident/Incident
a. An employee shall be
subject to drug and alcohol testing following an accident or incident that
occurs during the course and scope of their employment if the employee's action
or inaction may have been a causative factor and such incident:
i. involves circumstances leading to a
reasonable suspicion of the employee's drug or alcohol use or
impairment;
ii. results in a
fatality; or
iii. results in or
causes the release of hazardous waste as defined in
R.S.
30:2173(2) or hazardous
materials as defined in
R.S.
32:1502(5).
b. An employee who is involved in
an accident or incident that results in bodily injury or property damage may be
subject to drug and alcohol testing.
c. Should an employee refuse after being
directed to submit to drug or alcohol testing as a result of an accident or
incident, impairment shall be legally presumed under
R.S.
23:1081 and state of Louisiana workers'
compensation law benefits may be denied.
4. Rehabilitative. Staff testing positive
without a legitimate explanation and whose employment is not terminated, or
staff who notify their supervisor that they elect to participate for the
purpose of substance use rehabilitation, shall be subject to participation in a
rehabilitation program. As a condition for returning to work after
participating in such a program, the employee must agree to follow-up testing
on a random basis for up to 48 months. Additionally, medical professionals who
are participating in a rehabilitation program, substance abuse aftercare
program or who have a documented substance abuse history must agree to periodic
drug/alcohol testing throughout the course of their employment.
5. Random. All employees who occupy
safety/security sensitive positions (as defined in this regulation) shall be
subject to random drug testing. On a monthly basis, a list of employee numbers
representing at least 5 percent of a unit's employees shall be selected at
random by a computer generated selection process. This list shall be provided
to each institution, the Division of Probation and Parole, Division of Prison
Enterprises and headquarters.
a. The Office
of the Undersecretary shall generate the list of employee numbers at the
prescribed interval and ensure that the lists are distributed directly to each
unit head.
i. (Alternatively, if a unit has a
drug-testing services contract with a CAP-FUDT or SAMSHA-certified laboratory,
the production of this list may be included as part of those
services.)
b. Unit heads
shall establish a policy for matching the employee numbers to employee names,
notification of selected employees, recording of test results, and other
appropriate procedures as needed.
c. All tests shall be conducted during the
selected employees' work hours; no employee shall be called in on his day/night
off specifically for the purpose of a random drug test.
d. The conduct of this program shall be in
accordance with Subsection H of this Section.
6. Promotion. Drug testing shall be conducted
not more than 14 days prior to promotion.
G. Substances to be Tested
1. In accordance with
R.S.
49:1002 and
R.S.
49:1005, drug testing may be performed for
any of the following classes of drugs:
a.
marijuana or THC;
b.
opiates;
c. cocaine;
d. amphetamines; and
e. phencyclidine in the random testing or
preliminary testing process.
2. This does not preclude testing for any
other drugs, including other controlled substances defined in
21 U.S.C.
812, Schedules I, II, III, IV, and alcohol,
or abused prescription medication.
H. Conduct of the Drug Testing Program
1. Preliminary Analysis
a. The testing instrument available on the
current contract issued by the procurement and contractual review division and
approved by the secretary shall be utilized as a preliminary analysis to
determine the need for further testing, but may not be used as the basis for
any disciplinary action or other adverse action. The collection process shall
be done on-site by unit staff who have received the appropriate training.
(Formal testing may be utilized initially in lieu of preliminary analysis when
the unit head or designee determines that this is the most efficient
method.)
b. When the test produces
a positive result, the MRO shall be notified. The MRO shall obtain a list of
medication used by the employee at the time of the test and shall give the
employee the opportunity to provide a medical history and/or discuss the test
results.
i. The use of marijuana or THC,
regardless of the source of its detection, whether obtained through a
physician's recommendation in accordance with
R.S.
40:1046, purchased over -the-counter legally
according to the laws of this state or any other state, or otherwise, shall not
be considered a valid medical explanation for the purposes of the MRO's review.
Marijuana and THC remain Schedule I controlled substances under the Controlled
Substances Act. Therefore, any detection of marijuana or THC on a drug test
shall be considered a violation of this regulation.
c. Upon review and evaluation of all
available information, the MRO shall determine the need for formal
testing.
d. If formal testing is
deemed necessary by the MRO, the employee shall be escorted to a collection
site by a unit staff person.
e.
Pursuant to Paragraph D of this Section, it is not mandatory that the MRO
review the results of a preemployment preliminary analysis which results in a
positive finding.
f. All employee
preliminary testing shall be reported on the employee drug/alcohol field
test.
2. Formal Testing
a. Formal testing shall be conducted by a
CAP-FUDT or SAMSHA-certified laboratory and shall be performed in compliance
with SAMSHA guidelines.
b. All
urine specimens for drug testing shall be collected, stored and transported in
strict accordance with SAMSHA guidelines. The cut off limits for drug testing
shall also be in accordance with SAMSHA guidelines with the exception of
initial testing for marijuana. The initial cut off level for marijuana shall be
no less than 50 nanograms/ML and no more than 100 nanograms/ML as specified by
the testing entity.
c. In the event
of a positive result on a formal drug test, the laboratory's staff shall
provide a copy of the results to the employee and to the unit head.
I. Conduct of the
Alcohol Testing Program
1. Pursuant to
established policy and procedures, employees are prohibited from reporting for
or being on duty under the influence of alcohol or other intoxicants (or when
the odor or effect is noticeable). Towards this end, employees may be required
to submit to alcohol testing while on duty under circumstances defined in
Subsection F.
2. A portable
breathalyzer or other instrument and approved by the secretary shall be used to
determine a violation of this regulation. In the event of a positive reading on
the portable breathalyzer, a second test shall be conducted.
3. The alcohol test can be administered only
by those persons specifically authorized by the unit head and who have been
trained in the use of the testing instrument(s).
J. Training Required. A minimum of one hour
of training per year on the effects and consequences of controlled substance
abuse on personal health and safety at the workplace and indicators of
substance use or abuse is required for all full time employees.
K. Record Keeping and Reporting Requirements
1. The custodian of records designated by
each unit head shall maintain a record of each employee who has submitted to a
drug or alcohol test, the date of such test, the name of the person performing
the test, the number of tests performed and a summary of the results of each
type of test.
2. All test results
shall be retained for a minimum of three years after the employee resigns,
retires or is dismissed from employment.
3. Pursuant to
R.S.
49:1012, all information, interviews,
reports, statements, memoranda and/or test results received through the unit's
drug testing program are confidential communications and may not be used or
received in evidence, obtained in discovery or disclosed in any public hearing
or private proceedings, except in an administrative or disciplinary proceeding
or hearing, or civil litigation where drug use by the tested individual is
relevant. All such confidential information shall be maintained in a secure
manner.
4. A monthly report
utilizing the employee drug testing report of drug testing activities shall be
compiled by the headquarters human resources office for submission in the
AM-I-4 report.
5. By November 1 of
each year, each unit's business office shall submit a report to the
headquarters human resources office detailing the number of employees affected
by the drug testing program, the categories of testing conducted, the
associated costs of testing and the effectiveness of the program. In
conjunction with the undersecretary's office, the headquarters human resources
office shall compile the department's annual employee drug testing report for
submission to the Division of Administration annually by December 1.
L. Impaired Ability Due to
Prescription or Over the Counter Medication
1.
Employees in safety/security sensitive positions are required to notify their
immediate supervisor when they are taking medication which may affect their
ability to perform the essential functions of the job prior to the start of
their work day/shift.
2. Upon
notification, supervisors must immediately contact the unit's MRO or designee
to determine if the employee can safely perform the job duties while under the
influence of the stated medication.
3. Employees who may cause a direct threat to
the safety and security of the public, staff or offender population while under
the influence of such medication shall not be allowed to complete the workday
and shall be placed in enforced sick leave.
M. Violation of this Regulation
1. The disciplinary penalties and guidelines
shall be utilized in the administration of this regulation. Refusal to submit
to testing may result in disciplinary action. Formal testing with positive
results may be cause for initiation of disciplinary action.
2. When confirmed positive formal test
results do not result in termination, referral to the employee assistance
program or other individual or agency equipped to coordinate accessibility to
substance abuse education or counseling is appropriate and may be
made.
3. Any time there is a
reasonable suspicion that any employee is impaired and could be a direct threat
or cannot safely perform their essential functions due to the use of drugs
(prescribed or other) or alcohol consumption, the employee shall be immediately
removed from the employee's workstation and taken to a secure location (away
from any possible contact with offenders) for preliminary or formal
testing.
4. If any employee tests
positive for drugs or alcohol during either the random, preliminary or formal
testing, the employee will be placed on appropriate leave status and escorted
off the premises. If impaired, assistance shall be provided to ensure the
employee is transported to a safe location. The employee shall not be allowed
to return to work until the condition is resolved or no earlier than the next
scheduled workday if the unit head or designee so approves the return to
work.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
49:950.
