Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: This rule sets forth the basis and legal
requirements, contractual requirements, testing requirements, substance abuse
testing protocols, threshold limits, consequences of refusal to submit to
testing/confirmed positive results, reinstatement procedures, and compliance
determination for a drug and alcohol program pursuant to section
161.371,
RSMo Supp. 2010.
(1) Basis
and Legal Requirements. In an effort to create safe and healthy schools and
workplaces, the state of Missouri requires that contractors and subcontractors
shall maintain and enforce a written substance abuse testing program for public
works construction projects on public and charter elementary and secondary
education construction projects that are subject to the control of the state of
Missouri. This policy is not intended to be a substitute for the contractor's
or subcontractor's complete written substance abuse policy. These requirements
shall be the minimum requirements for complying with section
161.371,
RSMo, and may be supplemented at the discretion of the contractor or
subcontractor.
The state of Missouri has a vital interest in protecting the
safety of students and maintaining safe, healthful, and efficient working
conditions for both the state's and its contractors' and subcontractors'
employees; and has determined that the educational and work environment is
safer and more productive without the presence of illegal or inappropriate
drugs, alcohol, or other substances in the body or on state property on which
any state elementary or secondary school is located or being constructed or
improved.
The use of illegal drugs, on or off duty, is inconsistent
with law-abiding behavior expected of all persons. The use of illegal drugs, or
abuse of alcohol or prescription drugs, may impair the ability of employees to
perform tasks that are critical to proper work performance. The result is an
increase in accidents and failures that pose a serious threat to the safety of
all students, employees, visitors, and the general public. Impaired employees
also tend to be less productive, less reliable, and prone to greater
absenteeism, resulting in the potential for increased cost and delays in the
timely completion of contracts.
(2) Contractual Requirements.
(A) Each contract entered into for the
performance of work on any public and charter elementary and secondary
education construction project subject to the control of the state of Missouri
shall require that each contractor or subcontractor have in place a drug and
alcohol testing program consistent with this rule. These contractual
requirements shall apply to contractor and subcontractor employees on public
and charter elementary and secondary education construction projects that are
subject to the control of the state of Missouri. The contractor and all
subcontractors shall comply with this contractual requirement. The state of
Missouri shall determine, in its sole discretion, when this contractual
requirement shall be applicable; and in such instances, any bid submitted in
response to a request for proposal shall comply with this contractual
requirement.
(B) In order to be
eligible to perform work on public and charter elementary and secondary
education construction projects that are subject to the control by the state of
Missouri, a contractor must have and enforce a written drug and alcohol testing
program incorporating the following testing requirements and terms and
conditions applicable to all its employees and subcontractors. No employee or
prospective employee of a contractor or subcontractor shall be permitted to
work on public and charter elementary and secondary education construction
projects that are subject to this rule unless such employee submits to testing
as required by the contractual requirement required by this rule.
(C) Each contractor and each subcontractor
subject to this rule shall train its supervisory employees in methods that will
allow them to recognize the signs and symptoms of substance abuse and to take
action provided by this contractual requirement in a manner consistent with
generally accepted safety training procedures.
(D) Each contractor and each subcontractor
subject to this rule is responsible for the cost of developing, implementing,
and enforcing its drug and alcohol testing program, including the cost of drug
and alcohol testing of its employees provided by the contractual requirement
required by this rule.
(E) The
contractor shall furnish a copy of its drug and alcohol testing program and
certify that it and its subcontractors are in compliance with the provisions of
this rule to the state of Missouri at the time it submits a bid for any
contract with the state of Missouri for work on public and charter elementary
and secondary education construction projects that are subject to the control
of the state of Missouri. Each contract of the prime contractor with a
subcontractor and each contract of a subcontractor of any tier with another
subcontractor shall include as a condition of subcontracting a requirement that
the subcontractor has an established drug and alcohol testing program as
provided by this rule and that the subcontractor shall include the same
contract condition in any subcontract it may enter with another subcontractor.
Additionally, each subcontractor, and each subcontractor of any tier with
another subcontractor, shall furnish a copy of its drug and alcohol testing
program to the prime contractor prior to commencement of work on public and
charter elementary and secondary education construction projects that are
subject to this contractual requirement. The awarding contractor or the
Division of Facilities Management, Design and Con-struction may reject a
subcontractor's program as noncompliant with the contractual requirement
required by this rule.
(F) For
purposes of this rule, performance of work on any public and charter elementary
and secondary education construction project subject to the control of the
state of Missouri shall mean construction projects contracted by the Division
of Facilities Management, Design and Construction, or construction projects
administered by the Division of Facilities Management, Design and
Construction.
(3)
Testing Requirements.
(A) Pre-Engagement
Testing. Testing for all substances other than alcohol as described in this
rule shall be conducted by each contractor and subcontractor for its employees
within one hundred twenty (120) days prior to any employee's appearance on a
public and charter elementary and secondary education construction project that
is subject to this contractual requirement. Contractors' or subcontractors'
employees that can provide certification of a previous drug test occurring
within one hundred twenty (120) days or employees that have been subject during
the preceding consecutive two (2) years to a random and periodic selection
program that meets the standards as set forth in this rule and, if the employee
actually has been tested, that indicates a negative result for each of the
substances listed herein, may be exempted from pre-engagement testing provided
by this rule. If the employee was not employed by the contractor or
subcontractor that is his or her current employer at the time of the previous
test, the employee may be exempted from pre-engagement testing only upon
certification of the non-negative test directly from the administrator of the
testing program that conducted the previous test.
(B) Random Testing. All employees of the
contractor and subcontractor shall be subject to random testing by the
contractor or subcontractor. For employees holding a commercial driver's
license, the annualized drug and alcohol testing rate shall comply with 49 CFR
Part 382, as may be amended from time-to-time, and similar applicable
regulations of the Federal Highway Administration. All other employees of the
contractor or subcontractor shall be subject to testing for all substances
other than alcohol at the random annualized selection rate of fifty percent
(50%) of the contractor's or subcontractor's employees. Employees selected for
random testing shall report in a timely manner to the drug and alcohol testing
laboratory or collection site where directed for drug and/or alcohol
testing.
(C) Periodic Testing. All
employees working on public and charter elementary and secondary education
construction projects that are subject to this rule shall be subject to
periodic and random testing for all substances other than alcohol on at least a
biannual basis. Contractors' or subcontractors' employees that have been
subjected to pre-engagement testing or randomly tested during the preceding
consecutive two (2) years as provided by this rule and such testing indicates a
negative result for each of the substances listed herein may be exempted from
periodic testing provided by this rule. Employees subject to periodic testing
shall report in a timely manner as directed to the drug and alcohol testing
laboratory or collection site for drug testing.
(D) Reasonable Suspicion Testing. All
employees of the contractor and each subcontractor on public and charter
elementary and secondary education construction projects that are subject to
this rule shall be subject to a drug and alcohol test when an employee is
acting in an abnormal manner that leads a supervisory employee of the
contractor or subcontractor to have reasonable suspicion that the employee is
under the influence of alcohol or controlled substances. Reasonable suspicion
means suspicion based on specific personal observations by the supervisory
employee concerning the appearance, behavior, speech, or breath odor of the
employee.
(E)
Post-Accident/Incident Testing. All employees of contractors and subcontractors
on public and charter elementary and secondary education construction projects
that are subject to this rule shall be subject to a drug and alcohol test
following an on-the-job injury requiring medical treatment or following a
serious or potentially serious incident, including near misses, during which
safety precautions were violated; persons were or could have been injured;
unsafe instructions or orders were given; vehicles, equipment, or property was
damaged; careless acts were performed; or when prescribed personal protective
or safety equipment was not worn. Employees involved or that may have
contributed to the incident shall be subject to a drug and alcohol test. If it
is impossible or impractical, because of the physical condition of the person
involved in the accident to be subjected to drug and alcohol testing, and if in
subsequent medical treatment that person's blood or other bodily fluid will be
drawn, then that blood or other bodily fluids may be analyzed for drugs and
alcohol.
(4) Substance
Abuse Testing Protocols.
(A) A contractor or
subcontractor subject to the provisions of this rule shall perform
pre-engagement, random, periodic, reasonable suspicion, and post
accident/incident testing in the following manner:
1. Drug Testing-
A. All urine samples collected under this
program shall be analyzed by a laboratory certified by the National Institute
on Drug Abuse/Substance Abuse and Mental Health Service Administration of the
U.S. Department of Health and Human Services and shall include an initial
Enzyme Multiplied Immunoassay Screening Test (EMIT) and, when necessary,
confirmed by a Gas Chromatography/Mass Spectrometry (GC/MS) confirmation test.
All samples confirmed by the laboratory as non-negative shall be interpreted as
positive or negative by a Medical Review Officer licensed by the American
Association of Medical Review Officers, American College of Occupational and
Environmental Medicine, Medical Review Officer Certification Council, or
American Society of Addiction Medicine;
2. Alcohol Testing-
A. The initial screening tests for alcohol
shall be performed by using either a saliva test or a Department of
Transportation (DOT) approved breathalyzer; and
B. Alcohol confirmatory tests shall be
performed by either a blood alcohol test or a DOT approved
breathalyzer.
(B) Testing for the presence of drugs or
alcohol in an employee's system and the handling of test specimens shall be
conducted in accordance with guidelines for laboratory testing procedures and
chain-of-custody procedures established by the Substance Abuse and Mental
Health Service Administration of the U.S. Department of Health and Human
Services.
(C) The program shall
require notification to the employer and employee of the results of any
non-negative drug and alcohol test, and the Division of Facilities Management,
Design and Construction shall be notified of the action taken to protect the
safety of students as a result of such positive test, provided that no
requirement of individual confidentiality of test results provided by federal
law or regulation or state statute shall be violated in providing such
notifications. The provisions of this rule shall not be construed to require
the contractor or subcontractor or person conducting a drug or alcohol test to
inform the Division of Facilities Management, Design and Construction of the
name of an employee receiving a non-negative drug or alcohol test
result.
(5) Threshold
Limits. All samples collected shall be analyzed by a laboratory certified by
the Substance Abuse and Mental Health Service Administration of the U.S.
Department of Health and Human Services and shall include an initial Enzyme
Multiplied Immunoassay Screening Test (EMIT) and, when necessary, confirmed by
a Gas Chromatography/Mass Spectrometry (GC/MS) Confirmation Test. Said testing
must screen, at a minimum, for the substances and levels of such substances
provided by 49 CFR Part 40 and for alcohol as provided by 49 CFR Part 382, as
may be amended from time-to-time. The levels that shall be deemed to result in
a negative test result shall be defined by 49 CFR Part 40 and 49 CFR Part 382,
as may be amended from time-to-time; provided that if such regulations shall no
longer define substances and testing levels in the future, testing as required
by this rule shall screen for the following substances that shall not exceed
the following levels in order to be deemed a negative test result:
| (EMIT) |
(GC/MS) |
| Confirmed |
Confirmation Test |
| Initial Level |
Cut-Off Level |
| (ng/ml) |
(ng/ml) |
| Drugs tested: |
| Amphetamines (*See Note below) |
500 |
250 |
| Barbiturates |
300 |
200 |
| Benzodiazepines |
300 |
200 |
| Cocaine Metabolite |
150 |
100 |
| Cannabinoids (Marijuana THC) |
50 |
15 |
| Methadone |
300 |
200 |
| Opiates: |
| Codeine/Morphine |
2000 |
2000 |
| Heroine Metabolite |
10 |
10 |
| Phencyclidine (PCP) |
25 |
25 |
| Propoxphene |
300 |
200 |
| Breath/Blood Alcohol Content (BAC) |
.04% |
.04% |
| Removal from jobsite |
.0200-.0399% |
.0200%-.0399% |
*Note-includes Amphetamines, Methamphetamines, and Ecstasy
(MDMA).
(6) Refusal to
Submit to Testing/Confirmed Positive Results.
(A) Any employee of a contractor or
subcontractor performing any duties or work that are subject to this rule who
refuses to submit to testing or receives a confirmed positive test result for
any of the substances indicated in section (5) shall be required to immediately
leave the construction site and be prohibited from returning to any
construction site subject to control of the state of Missouri until evidence is
provided of the completion of the reinstatement procedures as set forth in
section (7).
(B) Determination for
Violation of Policy.
1. A confirmed positive
drug or alcohol test.
2. Failure to
contact the Medical Review Officer as directed.
3. Failure to report as directed for random
testing.
4. The use, possession,
sale, or distribution of alcohol or a controlled illegal or unauthorized
substance, or the presence of any employee with such ingested substances for
non-medical reasons on a public and charter elementary and secondary education
construction project subject to the control of the state of Missouri.
5. Working, reporting to work, being on a
public and charter elementary and secondary education construction project that
is subject to the control of the state of Missouri, or in a state or employer
owned, leased, or rented vehicle, while under the influence of alcohol (0.04%
BAC or greater).
6. Switching,
adulterating, or attempting to tamper with any sample submitted for drug or
alcohol testing or otherwise interfering or attempting to interfere with the
testing process.
7. Refusal to
submit a specimen for testing shall be deemed to be a positive test result and
shall be subject to the same consequences as specimens tested and confirmed as
positive.
8. The use of a
controlled substance by an individual other than the individual for whom the
controlled substance was prescribed or the abuse of a controlled substance by
the individual for whom it was prescribed.
(7) Reinstatement Procedures. An employee
receiving a confirmed positive test result for any of the substances indicated
in section (5) may return to work on a public and charter elementary and
secondary education construction project that is subject to the control of the
state of Missouri only after the following conditions have been satisfied:
(A) Evidence is submitted to the contractor
or subcontractor that the employee has completed or is actively participating
in an approved drug/alcohol assessment, treatment, and/or counseling program.
The costs of this assessment, treatment, or program need not be borne by the
contractor or subcontractor;
(B)
Evidence is submitted of the employee passing a drug and alcohol test that
meets the requirements of sections (4) and (5) of this rule. The costs of this
subsequent retesting need not be borne by the contractor or
subcontractor;
(C) The employee
shall be subject to additional random drug and alcohol testing on a monthly
basis while on any public and charter elementary and secondary education
construction project that is subject to the control of the state of Missouri.
The costs of this additional testing, treatment, or program need not be borne
by the contractor or subcontractor; and
(D) An employee known by the contractor or
subcontractor to have previously had a positive test result who receives a
second or subsequent confirmed positive test result in connection with
subsequent testing required by this section (7) of this rule shall be removed
by the contractor or subcontractor from all public and charter elementary and
secondary education construction projects that are subject to the control of
the state of Missouri. The employee shall not return to work on any public and
charter elementary and secondary education construction project subject to this
rule until the employee has completed an approved drug/alcohol assessment,
treatment, and/or counseling program and until after evidence is submitted of
the employee passing a drug and alcohol test that meets the requirements of
sections (4) and (5) of this rule and that indicates a blood alcohol
concentration of less than 0.02 percent.
(8) Compliance Determination.
(A) The state of Missouri may audit any
substance abuse testing program implemented pursuant to this contractual
requirement to verify compliance, upon at least twenty-four (24) hours' notice
by the state to the contractor of its intent to audit. The state shall have
free access to all relevant records of the contractor and its subcontractors
for this purpose.
(B) Any portion
of this program that is in violation of applicable federal or state law or
regulation shall be deemed unenforceable.
*Original authority: 161.371, RSMo
2010.
