La. Admin. Code tit. 22 § I-207

Current through Register Vol. 50, No. 11, November 20, 2024

Section I-207 - Drug-Free Workplace

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.

La. Admin. Code tit. 22, § I-207

Promulgated by the Department of Public Safety and Corrections, Office of Corrections Services, LR 25:522 (March 1999), amended LR 26:1308 (June 2000), LR 35:958 (May 2009), LR 39:3321 (December 2013), Amended by the Department of Public Safety and Corrections, Corrections Services, LR 44608 (3/1/2018), Amended LR 482150 (8/1/2022).

AUTHORITY NOTE: Promulgated in accordance with R.S. 49:950.