Chapter 9.35
DRUG AND ALCOHOL FREE WORKPLACE
Sections:
9.35.060 Employee responsibility.
9.35.070 Employment eligibility with the Tulalip Tribes.
9.35.090 Use of legally obtained prescriptions and/or over-the-counter drugs.
9.35.100 Pre-employment testing.
9.35.110 Drug and alcohol testing.
9.35.010 Purpose.
(1) The Tulalip Tribes requires all employees to report to work fit to perform their job duties and requires a drug and alcohol free workplace.
(2) This chapter shall be administered by the Tulalip Tribes Central Drug and Alcohol Compliance Department, hereinafter referred to as the CDACD. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.020 Scope.
(1) This chapter shall apply to every entity of the Tulalip Tribes that is an employer and its employees, unless a variance is approved by the Board of Directors.
(2) As a condition of employment all employees are required to consent to drug and alcohol testing and to abide by the terms of this chapter. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.030 Definitions.
(1) “Adulterated specimen” means a urine specimen that contains a substance that isn’t expected to be present in human urine, or contains a substance expected to be present but is at a concentration that is not consistent with human urine.
(2) “Alcohol” means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.
(3) “Alcohol concentration” means alcohol in a volume of breath (shown as grams of alcohol/210 liters of breath) as indicated by a breath test.
(4) “Applicant” means an individual who completes and submits a job application to the Tulalip Tribes Central Employment Department.
(5) “Last chance agreement (LCA)” means an agreement provided to an employee in lieu of dismissal.
(6) “Collector” means a person who instructs and assists employees in the drug testing collection process, receives the specimen, and completes the necessary paperwork.
(7) “Controlled substances” means drugs or chemical substances which have been declared by Federal law and/or Tulalip Tribal law to be illegal. Some controlled substances may be prescribed by a licensed health care provider.
(8) “Cutoff level” means an established concentration based on which a drug is reported as positive or negative.
(9) “Dilute specimen” means a urine specimen with creatinine and specific gravity values that are lower than expected for human urine.
(10) “Employee” means an employee or team member of one of the Tulalip Tribes entities.
(11) “Employer” means the Tulalip Tribes entity where the employee works.
(12) “Fit for duty” means the capacity of an employee to safely and competently perform job duties.
(13) “Health care provider” means certified licensed physician, doctor of osteopathy, certified licensed chemical dependency provider/substance abuse provider, or nurse practitioner.
(14) “Illegal drug(s)” means any drug:
(a) Which is not legally obtainable;
(b) Which may be legally obtained but has not been legally obtained; or
(c) Which is being used in a manner or for a purpose other than prescribed.
(15) “Inhalants” means breathable chemical vapors that are intentionally inhaled because of the chemicals’ mind-altering effects.
(16) “Invalid drug test result” means the result of a drug test for a urine specimen that contains an unidentified adulterant or interfering substance. The laboratory reports the specimens as follows, but not limited to: “Sample not consistent with human urine, Invalid ... GC/MS Interference and/or Invalid – not consistent with human urine and/or canceled due to GC/MS Interference.”
(17) “Impaired” means when an individual’s motor senses (e.g., sight, hearing, balance, reaction, reflex, speech) or judgment either is, or may reasonably be presumed to be, affected by drugs/alcohol.
(18) “Legal drug” means a prescribed drug or over-the-counter drug which has been legally obtained and is being used for the purpose for which it is prescribed or manufactured.
(19) “Paraphernalia” means items designed or intended for manufacturing, concealing or using a controlled substance; items used to conceal products claimed to cleanse an individual’s system of drugs.
(20) “Positive test” means a drug or metabolite is present in the screened specimen. A positive alcohol result is 0.020 or greater.
(21) “Refuse/refusal to test” means a determination that an individual did one or more of the following:
(a) Refused to submit to a drug/alcohol test, failed to appear for testing, or displayed disruptive behavior during the collection process.
(b) Tampered with a sample to include adulteration, intentional dilution, or substitution that is reported by the laboratory as an invalid drug test result.
(c) Failed to cooperate with the testing process, to include but not be limited to leaving the testing area, not providing an additional specimen when required, and not following the collector’s instructions.
(d) Possessed item(s) that could be used to interfere with the testing process.
(22) “Safety sensitive positions” means positions in which an employee’s primary job responsibility includes the following:
(a) Provides transportation.
(b) Operates Tulalip vehicles, vessels, and/or vehicles owned by customers/guests.
(c) Operates or performs maintenance of machinery or equipment.
(d) Performs security, surveillance, or law enforcement job duties.
(23) “Substance abuse” means a pattern of harmful use of any substance for mood-altering purposes.
(24) “Under the influence” means exhibiting behaviors that interfere with the performance of job duties due to the excessive or improper use of drugs and/or alcohol.
(25) “Work site/premises” means any office, building or property, vehicle or equipment owned, leased or operated by the Tulalip Tribes or where employees represent the Tulalip Tribes. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.040 Violations.
(1) Violations shall result in corrective action, up to and including dismissal of employment. Other rules of prohibited conduct and violations are listed throughout this chapter. Probationary employees and any employee who commits Level II violations shall be dismissed from employment and not offered a last chance agreement.
(2) Level I. The following violations shall result in corrective action up to and including dismissal of employment:
(a) Reporting to work with illegal drugs or their metabolites in the employee’s system that yield a positive test.
(b) Reporting to work with alcohol in the employee’s system that yields a positive test.
(c) Failure to provide prescription drug information to the CDACD within three working days when required.
(d) Possess a controlled substance, illegal drugs, or paraphernalia.
(e) Evidence of improper/illegal use of drugs/inhalants at the Tulalip Tribes work sites.
(3) Level II. The following violations shall result in dismissal of employment regardless of whether such conduct results in criminal charges or legal prosecution:
(a) Refusal to test.
(b) Having a drug test reported by the laboratory as an invalid drug test result.
(c) Providing, selling or attempting to sell, distributing, receiving, trading, manufacturing, transferring, offering, and/or soliciting controlled substances and/or illegal drugs.
(d) While in a safety sensitive position reports to work while taking legal drugs with warning labels cautioning potential impairment and/or deemed to pose a potential safety threat, unless otherwise preapproved by the CDACD.
(e) Resign from employment at the time of collection or resign shortly after the collection.
(f) Refuse to sign required paperwork and/or LCA after having a positive alcohol/drug test result.
(g) Fail to comply with LCA.
(h) Have a second positive test within one year from the first positive test.
(i) While in a safety sensitive position reporting to work with illegal drugs or their metabolites in the employee’s system that yield a positive test.
(j) While in a safety sensitive position reporting to work with alcohol in the employee’s system that yield a positive test. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.050 Corrective action.
(1) Last Chance Agreement (LCA). An employee not in a probationary period of employment and/or not currently on a LCA who commits a Level I violation shall be offered a LCA for the opportunity to engage in drug/alcohol rehabilitation.
(a) Employees who are placed on a LCA shall communicate with the CDACD in the event that he or she requires a prescription due to a medical emergency, which could yield a positive test. The employee will require a release from the CDACD Department before returning to work.
(2) Dismissal. An eligible employee who commits a Level II violation shall be dismissed and shall not be offered a LCA. An employee who is in a probationary period of employment who commits a Level I and/or a Level II violation shall be dismissed and shall not be offered a LCA. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.060 Employee responsibility.
The costs of drug/alcohol assessments and treatment whether covered by an employee’s medical plan or not are the employee’s responsibility. Employees shall obtain treatment through a Tulalip approved treatment provider/facility that has been preapproved by the Tulalip Tribes medical/benefit plan. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.070 Employment eligibility with the Tulalip Tribes.
(1) Employees who refuse to test, resign, and/or are dismissed for other work violations prior to the CDACD taking action for a positive test result will be ineligible for employment for 90 days and must have a drug/alcohol assessment and follow through with treatment recommendations prior to being eligible for employment.
(2) Employees who have drug/alcohol violations who resign, refuse to test, and/or are dismissed will be ineligible for employment for 90 days and must complete treatment requirements and/or have another drug/alcohol assessment if treatment recommendations were completed and follow through with treatment recommendations prior to being eligible for employment. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.080 Inspections.
Employees are subject to inspections of Tulalip Tribes property when there is reasonable belief that they have violated this chapter. Interference with an inspection is a violation of this chapter and may result in dismissal of employment. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.090 Use of legally obtained prescriptions and/or over-the-counter drugs.
(1) The Tulalip Tribes at all times reserves the right to determine whether an employee should be allowed to continue working during his/her use of legal drugs due to possible safety and/or performance problems that could arise from certain drug use.
(2) Safety sensitive employees must notify the CDACD prior to the performance of job duties, when using narcotic and/or mind-mood altering legally prescribed (RX) or over-the-counter (OTC) drugs that may interfere with the safe and effective performance of duties or operation of the Tulalip Tribes’ equipment. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.100 Pre-employment testing.
(1) Applicants will be asked to sign a form consenting to a drug screening test as part of the application process. Failure to sign the consent form will be considered a withdrawal of the application and a refusal to test.
(2) Applicants who test positive will be denied employment and will be ineligible for employment for 90 days.
(3) Current eligible employees applying for another position that have a positive test result shall not be hired for the position and corrective action shall be taken as outlined in this chapter. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.110 Drug and alcohol testing.
(1) For purposes of this chapter and outlined procedures, the testing of urine, breath, hair, saliva, nails, or other body material will be conducted as deemed reasonably necessary to determine the presence of drugs, drug metabolites and/or alcohol.
(2) The Tulalip Tribes may request current employees to submit to a drug test in certain circumstances, including:
(a) When an employee’s conduct, actions or behavior reasonably leads the employer to suspect that the employee may be using or under the influence of drugs or alcohol.
(b) When an employee has a controlled substance and/or illegal drug in his or her possession while on worksite premises or while performing work duties for the employer.
(c) When an employee is arrested for a drug or alcohol related offense.
(d) When an employee has experienced an on-the-job injury or accident.
(e) Safety sensitive employees, without individualized suspicion, are required to undergo periodic drug/alcohol tests.
(3) An employee who has tested positive on a test pursuant to this chapter and who is not dismissed may be retested by the employer at periodic intervals for up to 12 months after the positive test result.
(4) Employees may be required to submit to a fitness-for-duty evaluation when test results are negative and the observed impairment indicators are not adequately explained.
(5) Employees testing positive for legal drug(s) may be required to submit to a medical evaluation to determine any potential impact the legal drug(s) has on the employee’s work performance and to determine whether the employee is able to continue performance of job duties without the use of the legal drug(s).
(6) Employees possessing commercial driver licenses (CDL) and operating commercial motor vehicles for the employer shall abide by Federal DOT drug/alcohol testing as defined by DOT testing guidelines.
(7) Entities of the Tulalip Tribes may request non-employees to submit to a drug test for permit, licensing and/or to fulfill other requirements. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.120 Confidentiality.
(1) Laboratory test results/reports and treatment compliance information shall be maintained by CDACD.
(2) Access to this information is limited to those who have a legitimate need to know in compliance with relevant laws which includes disclosure to the following:
(a) Board of Directors, executive management, managers, supervisors, Human Resources, and the Employee Assistance Program;
(b) Office of Reservation Attorney;
(c) Referred treatment providers;
(d) The Tulalip Tribes’ investigative agencies;
(e) Medical Review Officer;
(f) To active/inactive employee upon written request;
(g) When ordered by court of law;
(h) Emergency medical personnel for medical treatment of an employee unable to authorize disclosure. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.130 Appeals.
(1) Appeal of Urine Drug Test Result. An employee whose urine drug test is reported positive will be offered the opportunity to have the remaining portion of the screened urine specimen that yielded a positive result retested at his/her expense. The payment for the retesting cost and appeal must be filed with the CDACD within seven days upon notification of the positive drug test results.
(2) Eligible Appeals. Employees not in a probationary period who are dismissed due to violations of this chapter may appeal per their Employee Handbook provisions. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.140 Sovereign immunity.
Nothing in this chapter shall be deemed to constitute a waiver of the Tulalip Tribes’ sovereign immunity for any reason whatsoever. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].
9.35.150 Severability.
(1) If any part or parts, or the application of any part, of this chapter is held invalid, such holding shall not affect the validity of the remaining parts of this chapter.
(2) The Tulalip Tribes Board of Directors hereby declares that it would have passed the remaining parts of this chapter even if it had known that such part or parts or application of any part thereof would be declared invalid. [Res. 2017-009; Res. 2016-237; Res. 2016-004; Ord. 143, 9-6-2014 (Res. 2014-378)].