From: Robert Murphy – Hourly Employees Council
To: Members of the HEC, Staff Senate, Personnel Policy Committee, and Others
Re: The New Revision to the OU Physical Plant
Mandatory Random Drug and Alcohol Testing Policy
23 July 2008
OU Physical Plant Administrators, for unknown reasons, have revised their department’s drug testing policy, effective August 1, attempting to redefine the term “safety sensitive positions” in such a way that all, or nearly all, of their employees will be subject to random drug tests. Since most of the affected employees earn hourly wages, the proposal was brought to the attention of the Hourly Employees Council for consideration at its July 9th meeting. Upon examination and discussion, the HEC unanimously passed a resolution “sternly” opposing the proposed change as “ambiguous and ill-conceived”, and an Ad Hoc Committee was formed to study the proposal and make recommendations.
Presently, there are only four reasons for drug testing an employee here at OU: 1) Reasonable Suspicion or observation of drug use; 2) Post-Accident testing; 3) Post-Rehabilitation testing; 4) Applicant testing. So, if your Director notices that your eyes are glazed, your speech is slurred, and you have the outline of a half-pint of Peppermint Schnapps in your back pocket, there’s a good chance you’ll be drug-tested. The same for having an accident in an OU vehicle, upon returning from a chemical-dependency program, or if you’re applying for a job. This system has been in place for many years, and OU employees are well aware of it and follow it.
As a member of the Hourly Employees Council, the Staff Senate, and the Personnel Policy Committee, I am compelled by duty to comment on this in writing before it goes into effect. There won’t be another meeting of any of these OU Staff representative groups until September, and even if there were there wouldn’t be enough time at any single meeting to address all of the errors, ambiguities, and outright illegalities of this outrageous document.
What follows is the newly revised policy that will soon apply to Physical Plant employees- if nothing is done to stop it - with my commentary. Text which seems unobjectionable is in small type. Text which demands comment is larger and in boldface. My comments are in italics between paragraphs.
Be patient. This is important.
(Revised June 2008)
Alcohol and Other Drug Testing
1. “Confirmation test” means a drug or alcohol test on a sample to substantiate the results of a prior drug or alcohol test on the same sample and which uses different chemical principles and is of equal or greater accuracy than the prior drug or alcohol test.
2. “Drug” means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, or a metabolite of any of the substances listed herein.
3. “Alcohol or other drug test” means a chemical test administered for the purpose of determining the presence or absence of a drug or its metabolites or alcohol in a person’s bodily tissue, fluids, or products.
4. “Medical Review Officer” means a person, qualified by the State Board of Health, who is responsible for receiving results from a testing facility which have been generated by an employer’s drug or alcohol testing program and who has knowledge and training to interpret and evaluate an individual’s test results together with the individual’s medical history and any other relevant information.
5. “Reasonable Suspicion” means a belief that an employee is using or has used drugs or alcohol in violation of the employer’s written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, including, but not limited to:
a. Observable phenomena, such as:
1. The physical symptoms or manifestations of being under the influence of a drug or alcohol while at work or on duty; or
2. The direct observation of drug or alcohol use while at work or on duty.
b. A report of drug or alcohol use while at work or on duty, provided by reliable and credible sources, which have been independently corroborated by a manager, supervisor, or other university administrator.
c. Evidence that an individual has tampered with a drug or alcohol test during his employment with the current employer; or
d. Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of drugs while on duty or while on the employer’s premises or operating the employer’s vehicle, machinery, or equipment.
“Sample” means tissue, fluid, or product of the human body chemically capable of revealing the presence of drugs or alcohol in the human body.
“Safety-sensitive positions” include, but are not limited to, those for which possession of a valid driver’s license or CDL are a requirement, or for which the maintenance or operation of equipment may be associated with such life-threatening risks as electrocution, combustion, explosion, or similar risks.
This Definition 7 is the first in what will turn out to be a parade of ambiguities and poor judgments. Federal law and the OU Staff Handbook restrict the definition of “Safety-Sensitive Positions” to those requiring a CDL or Pilot’s license. There is a reason for this. Because a random drug test is an invasive search, courts have held that they are only justified for positions which regularly put the lives of others at risk – bus drivers, airline pilots, truck drivers, soldiers, etc. Definition 7 is clearly an attempt to subvert Federal law.
As if that weren’t enough, the phrases “not limited to” and “similar risks” make this definition completely arbitrary, the primary ingredient of poor policy. Who ultimately decides whether a clerk with an electric heater under her desk is more of a combustion danger than a trained plumber with a blowtorch?
The University of Oklahoma Physical Plant considers its employees a valuable asset to the operation of the University community as a whole. Therefore, Physical Plant is concerned about the health, safety, well-being, and work performance of each of its employees. The use, abuse, or dependence on chemical substances can seriously affect the health of an individual and can jeopardize his or her own safety as well as the safety of others in the workplace. Job performance also suffers when an employee uses, abuses, or is dependent upon chemical substances.
These references to concerns for employees’ health and well being ring hollow when it is realized that their purpose is to mask a malicious intent. They are on the same level as the assurances of an Inquisitor that the rack and bastinado are merely benign tools to purge demons from the minds of heretics. The only true concern of any honorable employer is the safe performance of an employee’s job.
The final sentence is an assertion of fact which is clearly false. The word “can” or “may” should be inserted after the word “performance”.
Knowing these facts, The University of Oklahoma Physical Plant is committed to providing its employees an alcohol and other drug free workplace. It is Physical Plant’s policy to (1) assure that employees are not impaired in their ability to perform assigned duties in a safe, productive and healthy manner; (2) create a workplace environment free from the adverse effects of drug and alcohol abuse or misuse; (3) prohibit the unlawful manufacture, distribution, dispensing, possession, or use of controlled substances; and (4) encourage employees to seek professional assistance any time personal problems, including alcohol or drug dependency, adversely affect their ability to perform their assigned duties.
The phrase “in or on OU property” needs to be added to this clause. As written, it makes OU seem like a police agency or legislative body rather than an academic institution.
If a Physical Plant employee is found to be under the influence of alcohol or other drug while on the job, as confirmed by a positive result of the related alcohol or other drug test, such facts shall constitute grounds for immediate termination, by reason of misconduct, of employment of the individual. The employee will not be eligible for rehire at the University for a minimum period of six months. Any subsequent decision to permit eligibility for rehire rests with the University’s Office of Human Resources. This policy does not in any way constitute a contract or guarantee of employment.
Individuals applying for continuous employment at Physical Plant shall be subject to pre-employment drug testing upon a conditional offer of employment. All Physical Plant continuous employees will be subject to post-accident, post-rehabilitation and reasonable-suspicion provisions of the policy, and all employees in positions deemed to be safety-sensitive shall be additionally subject to the random-testing provisions of the policy. Safety-sensitive positions include, but are not limited to, those for which possession of a valid driver’s license or CDL are a requirement, or for which the maintenance or operation of equipment may be associated with such life-threatening risks as electrocution, combustion, explosion, or the like. All employees of the Physical Plant may be tested under this policy when deemed in the best interests of the University.
Again, who is doing the deeming here? Since the definition is open-ended, it would seem that all PP employees qualify as being in “Safety-Sensitive positions”, and therefore all should be subject to random testing. Or, does the definition depend on the arbitrary whim of some PP administrative functionary?
This policy is effective June 1, 1998, as revised June 19, 2008. The revised policy replaces previous policies, forms, and versions and is effective August 1, 2008.
All managers and supervisors will receive formal training that will enable them to articulate and substantiate behavioral, performance, and physical indicators of intoxication. As a result of this training, managers and supervisors can determine the need for an alcohol or other drug test. New managers and supervisors will receive this training within thirty (30) days of hire or promotion to the managerial or supervisory level.
Since there is a “snitch clause” threatening termination for non-reporting (see “Reporting Requirements of Employee”, below), all PP employees must be provided with this training if that aspect of the policy is to have any meaning.
The University of Oklahoma Physical Plant Alcohol and Other Drug Testing Policy includes the following types of alcohol and other drug testing:
An employee who is reasonably suspected of being under the influence of alcohol or another prohibited drug while on duty shall undergo an alcohol or other drug test. When such test is required, two supervisors and/or an OUPD representative will escort the employee to the approved testing facility during or immediately after the regular work period of the employee. The time taken for transportation and sample collection shall be deemed work time, and the employee shall be compensated as such. In a timely manner, a urine sample will be collected to detect the presence of drugs and controlled substances, and/or a sample of breath or saliva, or blood if no breath or saliva test is available, will be drawn to detect the presence and level of alcohol.
An alcohol or other drug test may be required of a Physical Plant employee if there is reasonable suspicion that the employee or another person has sustained a work-related injury or if damage has occurred to Physical Plant or other property as a direct result of the employee’s use of alcohol or other drugs. When such test is required, two supervisors and/or an OUPD representative will escort the employee to the approved testing facility during or immediately after the regular work period of the employee. The time taken for transportation and sample collection shall be deemed work time, and the employee shall be compensated as such. In a timely manner, a urine sample will be collected to detect the presence of drugs and controlled substances, and/or a sample of breath or saliva, or blood if not breath or saliva test is available, will be drawn to detect the presence and level of alcohol. The alcohol or other drug test(s) will be administered as soon as possible but no later than thirty-two (32) hours after the accident.
As a condition of continued employment, an employee who returns to work following participation in an alcohol or other drug dependency treatment program or following a confirmed positive alcohol or other drug test may be required to undergo testing without prior notice for a period of up to two (2) years commencing with the employee’s return to work. When such test is required, two supervisors and/or an OUPD representative will escort the employee to the approved testing facility during or immediately after the regular work period of the employee. The time taken for transportation and sample collection shall be deemed work time, and the employee shall be compensated as such. In a timely manner, a urine sample will be collected to detect the presence of drugs and controlled substances, and/or a sample of breath, saliva, blood, or urine will be drawn to detect the presence and level of alcohol.
All employees within the Physical Plant in a position deemed to be a safety sensitive position (see definition, number 7) are subject to random drug and alcohol screening. The Administration area of the Physical Plant shall randomly select a sample of such employees to be tested on a regular basis throughout the year. Random testing will be unannounced and will occur a minimum of twelve times a year. Upon notification, employees selected for random testing will immediately proceed to the designated testing site where the appropriate samples will be collected and tested. The time taken for transportation and sample collection shall be deemed work time, and the employee shall be compensated as such.
This part is really a gem. The first question is who – and I mean specifically who will be responsible and accountable; the ambiguity of the phrase “The Administration area” is an obvious attempt to evade personal accountability – will determine which employees are in a “Safety-Sensitive Position”? Then questions come in torrents: Does this really mean that a handful of selected employees will be tested many times throughout the year? Or does it mean that, throughout the year, different samples of employees will be tested? The grammar isn’t clear. Who will select this random sample? By what method? Will it be a sample with replacement or without? What safeguards are in place to assure that managerial bias won’t affect the sample? It seems that, at a minimum, any random sampling to be done should be done by an outside entity – such as the OU Poll or the Math Department – that is skilled with random sampling, to insure that any petty prejudices of administrators cannot influence the sample.
Also, the word “screening” is used here for the only time, and is undefined. The word “testing” should be substituted for this to make sense.
When a conditional offer for employment has been extended to an applicant for a continuous position within Physical Plant, that applicant must undergo a drug test. The appropriate sample will be collected at the approved testing facility and tested for prohibited drugs. Employment of the tested applicant will be conditional upon receipt of negative test results. An applicant’s refusal to undergo testing or a confirmed positive test result shall be sufficient basis for revocation of the conditional offer for employment.
Prohibited substances addressed by this policy include but are not limited to the following:
Amphetamines Marijuana and other cannabinoid
Cocaine Phencyclidine (PCP) and other hallucinogens
Opiates Alcohol (ethyl alcohol or ethanol)
Barbiturates Synthetic narcotics and designer drugs
Any metabolite of the above listed substances
This quest for “metabolites” is disturbing. It is the strongest evidence yet that this policy is not aimed at job safety or performance, but rather an attempt to control what employees do on their own time, and to purge any employees that dare to defy the authority of the Nanny State. The metabolites for most substances remain in the body for days and sometimes weeks beyond any pharmacological effect. So, an employee who is ready and able to work well and safely could be terminated because he smoked pot with his friends over the weekend, or because she took a few of her sister’s Lortabs or Valium because her husband and kids were driving her crazy. Again, OU needs to decide whether it is a police agency or an academic institution.
Any employee engaging in the manufacture, distribution, possession, or use of prohibited substances on University property, in University vehicles, or while in the conduct of University business will be subject to immediate discharge. Law enforcement will be notified, as appropriate, where criminal activity is suspected. Furthermore, the off-duty sale, distribution, possession with intent to distribute, or manufacture of illegal drugs by a Physical Plant employee resulting in a criminal conviction shall be grounds for immediate termination of employment.
Medical personnel at an approved testing facility who are certified by the State Board of Health will coordinate all alcohol and other drug tests required of Physical Plant applicants or employees. A chain of custody through the testing facility will be implemented to ensure the integrity of the test, the security of the sample, and the confidentiality of each individual being tested.
The alcohol or other drug test will be for policy compliance only and will not be used for criminal prosecution. Failure to comply with the order to provide sample as required under this policy shall result in the employee’s immediate termination. The individual being tested must cooperate fully with the laboratory staff during the sample collection. Failure to do so will result in the employee’s immediate termination. An attempt to tamper with a sample will also be sufficient basis for the employee’s immediate termination.
Employees are strongly encouraged to report any observation or knowledge of another employee who may be in a condition, which impairs his or her ability to perform assigned job duties, or poses a hazard to the safety and welfare of persons and/or property. The observing employee should promptly report the incident to the immediate supervisor, or any other supervisor should the immediate supervisor not be available. If a supervisor deems an alcohol or other drug test necessary as a result of this report, the aforementioned procedures will be followed.
In other words, “We encourage you to spy and snitch on your fellow employees.” Of what does this strong encouragement consist? Will rewards, kudos, or promotions be offered for those who ferret out miscreants? This kind of boilerplate is really irritating. Most PP employees work in teams, and if someone isn’t carrying their share of the workload or is otherwise goofing off they’ll hear about it immediately from their peers. Also, if the work isn’t getting done properly and efficiently, the Supervisor should be aware of it. This encouragement of spying is a very poor tactic if one wishes to maintain trust between employees, or between workers and supervisors.
Should an applicant’s or employee’s initial alcohol or other drug test be reported as positive for any of the prohibited substances, a confirmation test will be conducted on the same sample. A State Board of Health approved test of equal or greater accuracy than the initial test will be used to confirm a positive alcohol or other drug test. If a positive test result is confirmed through this procedure and the Medical Review Officer has deemed the results positive, this shall be grounds for immediate termination of employment by reason of misconduct, or in the case of a prospective employee, the conditional employment offer to the applicant will be withdrawn. In the case of a confirmed positive test the applicant or employee has the right to confidentially explain the test results to the Director or Assistant Director of Physical Plant.
What is this supposed to mean? The policy states that an employee will be fired for a confirmed positive test. Period. What good does it do to “confidentially explain” the results? Does the Director or Assistant Director have the authority to override this policy in favor of certain employees? On what basis? Where are the guidelines for exceptions? Are we to accept that Directors and AD’s have the wisdom and understanding to decide such things from the seat of their pants, choosing to keep one employee and terminating the next, based on their own judgment – in secret and without review? The notion is absurd, discriminatory, and probably illegal.
This is an open invitation to corruption. Imagine that a favored employee just happens to get caught with the metabolites for pot or crank in his system after a week’s vacation. Does he get to “explain” this to the Director or AD and get a free pass? What about the employee in the same position, who works well, but has been heard grumbling about management decisions?
Employees have the option of requesting in writing that an additional test for prohibited substances be performed on the same sample. The employee’s request for such test must be made within seventy-two (72) hours of notice of the confirmed positive test result. Requests made after seventy-two (72) hours will be accepted only if the delay were due to documentable facts that were beyond the control of the employee. This additional test must be performed at a Board of Health certified laboratory. When the employee requests an additional test be performed in order to challenge the results of a positive test, the employee shall pay all costs of the retest before the retest is performed. If the retest finds the results positive, the employee’s termination will stand. If the retest reverses the findings of the challenged positive test, Physical Plant will reimburse the employee for the costs of the retest, and the employee will be reinstated to his or her position.
Refusal to Submit to a Required Drug or Alcohol Test
Any employee who refuses to comply with a request for testing, who provides false information in connection with a test, or who attempts to falsify test results through tampering, contamination, adulteration or substitution shall be removed from duty immediately. A verbal or written refusal to provide a required specimen or to sign required testing forms will be considered a refusal to test. A refusal can also include an inability to provide a specific sample without a valid medical explanation, as well as a verbal declaration, obstructive behavior, or physical absence resulting in the inability to conduct the test. Upon notification of the requirement to test, the employee must proceed immediately to the collection site. The failure to arrive at the collection site in a timely manner after notification of the requirement to test will be considered a refusal to test. Refusal to submit to requested drug testing, attempts to falsify test results, or providing false information constitutes a verified positive screen and will result in termination.
Reporting Responsibilities of Employee
Employees must report the use of medically authorized drugs or other substances which may impair job performance to his/her immediate supervisor and provide proper medical authorization from his/her physician.
The failure to report the use of such drugs or other substances as specified above, or the failure to provide proper medical evidence of medical authorization, shall result in disciplinary action up to and including termination of employment. It is the employee’s responsibility to determine from his or her physician/practitioner whether or not the drug or substance would impair job performance.
Apparently those who did (or didn’t do) the research for this hadn’t heard of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It is highly probable that the above requirements are a direct violation of Federal law.
It is also the responsibility of an employee who observes or has knowledge of another employee in a condition which impairs his/her ability to perform his/her job duties, or poses a hazard to the safety and welfare of him/herself, the public, other employees or equipment, to promptly report the incident to his or her immediate supervisor or any other supervisor should his/her immediate supervisor not be available. Failure to make such reports will result in disciplinary action up to and including termination.
Here comes another “snitch clause”, only this time with teeth. Now we are not only “encouraged” to snitch on our fellow employees, but are threatened with termination if we don’t. Unless all PP employees receive regular training in detecting behaviors indicating intoxication by all of the listed prohibited substances, this requirement is patently absurd. Does the PP intend to make all of its employees arms of the police?
Any Physical Plant employee against whom disciplinary action is taken may appeal the action by expressing a grievance according to The University of Oklahoma Staff Handbook section 3.23, Staff Grievance Policy. Any appeal made shall be subject to the terms of Staff Grievance policy, and the remedies or sanctions determined by the appropriate provost or vice president shall be final. However, receipt of a second positive test shall be grounds for denial of future consideration.
It is not generally understood that an employee cannot file a Grievance against an established policy, but only against a misuse of policy. Once this policy goes into effect, its requirements cannot be modified by Grievance. The only time to modify or reject an unwise or discriminatory policy is before it’s implemented. Thus the present commentary.
Any Physical Plant applicant who tests positive for prohibited substances may reapply for a position at Physical Plant after a reasonable period or after not less than six months. However, receipt of a second positive test shall be grounds for denial of future consideration.
An employee covered by this policy is entitled, upon written request to the Physical Plant, to obtain copies of any records pertaining to his/her use of prohibited drugs, including any records pertaining to his/her drug tests.
The Physical Plant Personnel office shall maintain all alcohol and other drug test results, records, and related information as confidential records separate from other personnel records in accordance with The University of Oklahoma Staff Handbook section 3.14. These records shall be the property of The University of Oklahoma and, upon the request of the applicant or employee tested, shall be made available to that individual for inspection and copying. The Physical Plant Personnel office shall not release these records to any person other than the individual who was tested unless that individual grants permission in writing following the receipt of the test results or as otherwise may be required by law.
Medical information apart from a positive or negative prohibited alcohol or other drug presence and information related to that result will not be reported to any Physical Plant personnel. Furthermore, the presence of any drug not listed in the “Prohibited Substances” section of this Policy shall not be reported. However, the testing facility shall release the results of the alcohol or other drug test and any analysis and any information related thereto to the tested individual upon his or her request.
All provisions of this policy are subordinate to all applicable Federal and State laws or administrative regulations.
If those who authored this revision really understood this, they would have spent their time doing more productive things.
In an effort to assist employees who have a chemical dependence on alcohol or other controlled substances, The University of Oklahoma offers an Employee Assistance Program that is prepared to provide professional assistance in resolving abuse problems. This program is intended for employees who voluntarily submit themselves for professional assistance. If an employee is found working while under the influence of a prohibited substance, he or she is subject to disciplinary action; therefore, it is in the employee’s best interest to voluntarily seek assistance.
Chemical dependence is harmful not only to the health and well-being of the chemically dependent person but also to those who care about that person. If you use any of the prohibited substances listed in this policy or if you drink alcohol excessively or cannot control your drinking, please take advantage of this Employee Assistance Program. Assistance is only a phone call away.
You may contact Goddard Health Center’s Counseling and Testing Services to receive individual help through our Employee Assistance Program.
Telephone Number: 325-2700
So, now we have a change from the impersonal language of policy to the personal language of care and concern. Not only is this language inconsistent in switching from third to second person, but, in this context, a fine example of the rhetoric of the “Iron fist in a velvet glove”.
The Physical Plant Alcohol and Other Drug Testing Policy will be posted on the bulletin board in Logistics Support at all times and written copies distributed to all continuous employees, present and future.
Any questions regarding this policy should be addressed either to the employee’s direct supervisor or to the following representative:
Assistant Director, Administration and Operations
OU Physical Plant
160 Felgar Street
Norman, Oklahoma 73019
For an alternate representative, contact the Physical Plant Director’s Office at (405) 325-6211.
Should the regulations concerning mandatory drug testing issued by the OU Physical Plant or any parts or portions thereof or any provisions of the Physical Plant Alcohol and Other Drug Testing Policy be found to be invalid or unconstitutional, such provisions shall be rendered null and void and cease to be effective.
It would be interesting to know the reason why this policy change has been proposed. Has there been a rash of accidents due to drug or alcohol use? Have Physical Plant employees been found wandering around campus in a drugged or drunken stupor? Or, as seems more likely, are there just too many long-haired, blue-jean and t-shirt wearing plumbers, carpenters, masons, electricians and custodians? It looks a lot like an attempt by Inquisitors in Suits to suppress working class people with an unwarranted invasion of privacy.
This policy revision is discriminatory as well as being unjustified. All OU employees and students can pose a threat to the safety of persons and property when they’re intoxicated. It is clear that this policy change is aimed only at those PP employees who work in the field, leaving untouched and unthreatened the thousands of other staff members, students, and faculty members – many of whom regularly engage in inherently dangerous tasks.
If the Physical Plant Administration is seriously interested in safer worker performance, then it should use performance-based testing methods when intoxication is suspected, rather than the highly-invasive methods proposed. A Google search of “performance based testing” shows 11,200,000 hits. I should think that at least .001% of those hits would be from reputable foundations or academic institutions with departments dedicated to developing quick, easy, and inexpensive ways to check any employee’s performance level, anytime.
I’m sure that every OUPD Officer is trained in the simple coordination tests used to determine drunkenness at a traffic stop. I’m also sure that there are other simple tests available for such things as reaction time, critical thinking, and coordination that would measure job performance readiness without the expense and violation of privacy inherent in chemical testing. If the policy that has been in place for the past ten years seems somehow inadequate, performance testing is even more effective than chemical testing, and is much less draconian.
The people of Oklahoma and the United States are beginning to fear that their leaders are failing them. This policy proposal does nothing to allay that fear. It is ill-conceived, poorly written and violates both the trust inherent in the phrase “OU Family” and the spirit of American civilization. It should be rejected by anyone with the authority to do so.
Hourly Employees Council
PS If this critique seems to harsh to some, I apologize and blame it on my own chemical dependency. I am taking a drug called Chantix to help me quit smoking, and instead of causing depression and suicidal thoughts as it does in some people, I have found that it merely amplifies my natural Scots-Irish belligerence in the face of perceived injustice (for more on this see Sen. James Webb’s book - Born Fighting).
Of course, the most annoying thing about this matter is that the probability approaches certainty that the semi-literate incompetents who penned and approved this policy revision are getting paid at least three times my salary.