D.C. Mun. Regs. tit. 5, r. 5-A136

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 5-A136 - SUITABILITY FOR EMPLOYMENT: REQUIRED DRUG AND ALCOHOL TESTING PROGRAM

136.1

A staff member shall only consume prescription medication while providing direct care to children in the Facility according to the directions provided and in the manner prescribed by the licensed health care practitioner. However, a staff member shall not consume prescription medication while providing direct care to children in the Facility, if the prescription medication may impair the staff member's ability to perform his or her duties or impact the health and safety of the children in the staff member's care.

136.2

A Licensee shall conform to the requirements, set forth in this chapter pursuant to Sections 2031et seq. of CYSHA (D.C. Law 15-353; D.C. Official Code §§ 1-620.31et seq.), related to the required drug and alcohol testing program for any staff member:

(a) Who is employed by a Facility for compensation, including a contract employee or self-employed individual;

(b) Who has direct contact with children;

(c) Who is entrusted with the direct care and custody of children; and

(d) Whose performance of duties in the normal course of employment may affect the health, welfare, or safety of children.

136.3

A Licensee shall establish mandatory drug and alcohol testing policies and procedures that provide the following:

(a) All testing programs shall conduct tests:

(1) Prior to employment;

(2) Upon an employee's reasonable suspicion referral;

(3) Post-accident, as soon as reasonably possible after the accident; and

(4) [RESERVED].

(b) A Licensee shall notify all staff members who meet the requirements in Subsection 136.2 at least thirty (30) days in advance of implementing the Program;

(c) The drug and alcohol testing policy shall inform staff members who meet the requirements in Sub section 136.2 of all of the following:

(a) Which staff members will be tested;

(b) Circumstances under which an employee will be tested;

(c) The methodology to be used for testing; and

(d) The consequences of a positive test result.

(d) [RESERVED].;

(e) Any employee testing positive shall be considered ineligible to work with children until they have successfully completed a drug and/or alcohol treatment program and the Facility has provided evidence that the employee has completed all requirements related to the program and return to duty testing;

(f) All testing programs shall test for the following drugs:

(1) Marijuana;

(2) Cocaine;

(3) Opiates - opium and codeine derivatives;

(4) Amphetamines and methamphetamines;

(5) Phencyclidine - PCP;

(6) Synthetic drugs; and

(7) Alcohol.

(g) Although alcohol is a legal substance, the consumption of alcohol is prohibited in the performance of safety-sensitive functions under the following circumstances:

(1) Concentration: Performing safety-sensitive functions while having an alcohol concentration of 0.04 or greater, as indicated by an alcohol breath test;

(2) On-duty Use: The consumption of any beverage, mixture, or preparation (including any medication) containing alcohol. This includes the possession of medicines containing alcohol, prescription drugs, or over-the counter drugs, unless the packaging seal is unbroken or directly prescribed to owner; and

(3) Pre-Duty Use: Consuming alcohol within four (4) hours prior to performing safety-sensitive functions.

(h) Any unauthorized use of controlled-substances by safety-sensitive employees is prohibited;

(i) All safety-sensitive employees are required to report any medical use of controlled substances. A controlled substance includes any prescribed drug that will impair or present a risk; and

(j) No safety-sensitive employee shall refuse to submit to a required drug or alcohol test. An employee who refuses to submit to a drug or alcohol test shall not be allowed to perform any safety-sensitive functions and shall be subject to immediate termination of employment.

136.4

A staff member shall sign an acknowledgement that he or she received the written policy as specified in Subsection 136.3 of this section. A legal guardian's signature is needed if the appointee or employee is less than eighteen (18) years of age.

136.5

A Licensee shall contract with a professional testing vendor or vendors to conduct drug and alcohol testing pursuant to this chapter and District of Columbia laws and regulations. The vendor or vendors shall ensure quality control, chain-of-custody for samples, reliable collection and testing procedures, and any other safeguards needed to guarantee accurate and fair testing.

136.6

The vendor or vendors selected to conduct the testing shall be certified by the United States Department of Health and Human Services (HHS) to perform job-related drug and alcohol forensic testing.

136.7

The vendor(s) selected to conduct the testing shall conduct the alcohol and drug testing at a location designated by the program administrator for such purposes.

136.8

In general, testing for drugs shall be conducted by urine sample from the individual being tested.

136.9

Testing for alcohol use shall be conducted utilizing an evidentiary breath-testing device or EBT, commonly referred to as a "breathalyzer."

136.10

In the case of drug testing, the vendor(s) shall split each sample and ensure that the laboratory performs enzyme- multiplied- immunoassay technique (EMIT) test on one (1) sample and store the split of that sample. A positive EMIT test shall be confirmed by the vendor(s) using the gas chromatography/mass spectrometry (GCMS) methodology.

136.11

A Licensee shall notify, in writing, any appointee or employee found to have a confirmed positive drug test result. The appointee or employee may then authorize that the stored sample be sent to another HHS-certified laboratory of his or her choice, at his or her expense, for a confirmation, using the GCMS testing methodology.

136.12

All drug and alcohol testing shall follow the same procedures set forth in this section. In the case of a reasonable suspicion referral or a post-accident and incident test, the Licensee, or a designee of the Licensee, shall escort the employee to the designated test site for specimen collection as needed.

136.13

In the event that an individual requires medical care following an accident or incident, medical care shall not be delayed for the purpose of testing. In such cases, drug and alcohol testing may be conducted by a blood test.

136.14

A blood, breath, or urine test conducted in accordance with this section shall be deemed positive if the test yields a result that the appointee's or employee's alcohol content was either .04 grams or more per 210 liters of breath, .04 grams or more per 100 milliliters of blood, or .05 grams or more per 100 milliliters of urine.

136.15

A pre-employment, reasonable suspicion or post-accident or incident drug or alcohol test shall be conducted as set forth in Subsections 136.5 to 136.14.

136.16

Pre-employment drug and alcohol testing shall be conducted after a conditional offer of employment is made, but before the appointee's effective date of appointment.

136.17

A reasonable suspicion referral may be based on direct observation of drug use or possession, physical symptoms of being under the influence of drugs, symptoms suggesting alcohol intoxication, a pattern of erratic behavior, or any other reliable indicators. There may be reasonable suspicion under the following conditions:

(a) The employee is witnessed using a drug or alcohol while on duty;

(b) The employee displays physical symptoms consistent with drug or alcohol usage;

(c) The employee engages in erratic or atypical behavior of a type that is consistent with drug or alcohol usage; or

(d) There are other articulable circumstances which would lead a reasonable person to believe that the employee is under the influence of a drug or alcohol.

136.18

A staff member shall be subject to post-accident or incident testing when they are involved in accidents or incidents under the following conditions:

(a) The staff member is involved in an on-the-job accident or incident that result in injury or loss of human life;

(b) The employee is involved in an accident in which one (1) or more motor vehicle(s) (either District government or private) incurs disabling damage, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle;

(c) Anyone receives bodily injury requiring immediate medical attention away from the scene;

(d) The staff member, while operating a vehicle or other equipment while performing any function while on duty or assisting in the operation or functions of the Facility where he or she works, receives a citation under District of Columbia or another law for a moving traffic violation arising from the incident;

(e) There are reasonable grounds to believe the employee has been operating or in physical control of a motor vehicle within the District of Columbia while that employee's breath contains .04 percent or more, by weight, of alcohol, or while under the influence of an intoxicating liquor or any drug or combination thereof;

(f) The actions of the employee cannot reasonably be discounted as a contributing factor, using the best information available at the time of the decision; or

(g) The employee is involved in an on-the-job accident or incident that seriously damages machinery, equipment, or other property.

136.19

[RESERVED].

136.20

[RESERVED].

136.21

Caregivers and staff members of a licensed Child Development Home or Expanded Home shall participate in a drug and alcohol testing program established and administered by OSSE. Any Caregiver of a Child Development Home or Primary Caregiver of an Expanded Home who tests positive shall be immediately required to terminate the operation of his or her Facility and surrender his or her license.

136.22

[RESERVED].

D.C. Mun. Regs. tit. 5, r. 5-A136

Final Rulemaking published at 63 DCR 14640 (12/2/2016)