HPM 9.2, Substance Testing

Question 0

HPM 9.2, Chapter 1, Substance Testing

The first-line supervisor plays the most important role in any successful substance testing program. Supervisors generally have the routine, daily contact with the employee for the purpose of directing and evaluating performance; therefore, the supervisor is in the best position to assess any changes in an employee’s job performance, behavior, and/or appearance.

Answer 0

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Question 1

HPM 9.2, Chapter 1, Substance Testing

Supervisors are the main defense in maintaining a drug-free workplace. When a problem arises, it is their responsibility to confront the situation and initiate the proper action, including substance testing.

Answer 1

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Question 2

HPM 9.2, Chapter 1, Substance Testing

For the substance test to be effective, each supervisor must ensure that:

(a) Reasonable suspicion is supported by proper documentation;
(b) The sample is properly collected;
(c) The chain of custody is maintained; and
(d) The employee’s rights are not violated.

Answer 2

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Question 3

HPM 9.2, Chapter 1, Substance Testing

The state’s substance testing policy requires the involvement of specified managers in all substance tests as a confirming official before any samplecan be collected. These managers are to make certain the policy is properly applied and the test appropriately administered.

Answer 3

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Question 4

HPM 9.2, Chapter 1, Substance Testing

While supervisors and managers have specific roles in the substance testing process, all departmental employees shall alert a supervisor toindications that another employee is involved in substance abuse.

Answer 4

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Question 5

HPM 9.2, Chapter 1, Substance Testing

The Department must consistently apply all aspects of the program. Decisions to test must be made based solely upon facts and/or evidence, rather than hunches or groundless suspicions. Additionally, whenever the test process is administered, it must be done in the same manner each time following an established set of procedures. Deviation from established procedures could jeopardize the test.

Answer 5

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Question 6

HPM 9., Chapter 1, Substance Testing

Before any sample is obtained, the supervisor’s foundation for reasonable suspicion must be approved by a specified departmental manager.

Answer 6

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Question 7

HPM 9.2, Chapter 1, Substance Testing

Before any action can be taken against an employee for substance abuse, a sample must be properly collected and analyzed. After the test, the Department must be able to testify to the fact thatthe sample is unadulterated.

Answer 7

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Question 8

HPM 9.2, Chapter 1, Substance Testing

To avoid countercharges of sample tampering, a concise chain of custody must be established and followed; therefore, the number of persons handling any sample must be limited. Those handling samples and their reasons for doing so must be carefully documented.

Answer 8

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Question 9

HPM 9.2, Chapter 1, Substance Testing

Supervisors must be mindful of the different Memoranda of Understanding (MOUs) and, as such, refer to the specific contract covering the involved employee(s). When an MOU conflicts with the Department of Personnel Administration rules, the MOU shall take precedence. Failure to take the MOU into consideration when dealing with a reasonable suspicion testcould allow the validity of the test to be challenged.

Answer 9

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Question 10

HPM 9.2, Chapter 1, Substance Testing

The Department must ensure the contracting laboratory meets accepted scientific standards and that each sample is properly handled and tested.

Answer 10

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Question 11

HPM 9.2, Chapter 2, Substance Testing

Fourth Amendment. The courts have consistently held that, where there exists reasonable suspicion, the interests of the government outweigh the privacy interests of persons employed in positions demanding public trust and/or upon which the public’s health and safety depend. Because of the dependency of the public on law enforcement, the government’s need to ensure the sobriety of its employees is greater than certain employees’ right to privacy.

Answer 11

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Question 12

HPM 9.2, Chapter 2, Substance Testing

Fifth Amendment. This amendment protects an employee from self-incrimination. The courts have held, however, that the protections afforded by this constitutional amendment do not apply to chemical tests because the right not to self-incriminate is implicated only by testimonial or communicative evidence.

Answer 12

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Question 13

HPM 9.2, Chapter 2, Substance Testing

Fourteenth Amendment. This amendment guarantees the right to due process and has been the basis for challenges to certain substance testing programs. This protection requires the government to ensure procedural and substantive due process when an employee’s constitutional rights are affected. When claims are made that due process has been denied, they most frequently allege:

(1) A lack of advance notice of testing.
(2) No advisement of consequences.
(3) Inadequate opportunity to respond to charges.
(4) Lack of opportunity to challenge test results or inability to order additional tests to compare results.
(5) Failure to establish impairment or job-relatedness of the tests.

Answer 13

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Question 14

HPM 9.2, Chapter 2, Substance Testing

Fourteenth Amendment. The protections afforded by this amendment demand that due process procedures be properly followed to protect all of the employee’s interests. This means the employee must be made aware of the exact reasons for the Department’s actions, the consequences of a positive test result and/or what action the Department will take if the employee refuses to submit to the requested test. The Department must also take necessary precautions to ensure the sample is properly collected, identified, and analyzed.

Answer 14

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Question 15

HPM 9.2, Chapter 2, Substance Testing

Negligent Supervision. Liability arises when it can be shown that a supervisor negligently failed to supervise subordinates appropriately, and the negligence resulted in an injury to a co-worker and/or the public.

Answer 15

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Question 16

HPM 9.2, Chapter 2, Substance Testing

Negligent Retention. More frequently, courts are holding employers directly responsible for retaining “dangerous” employees. Failure to act in a reasonable manner when such information comes to a supervisor’s attention or could have come to a supervisor’s attention exposes the Department to liability. Liability can also arise from an act of deliberate indifference on the part of a supervisor.

Answer 16

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Question 17

HPM 9.2, Chapter 2, Substance Testing

Wrongful Discharge. The same process used to impose discipline for other misconduct must be followed when dealing with an employee suspected of substance abuse in the workplace. To avoid problems in this area, the substance testing program must be administered fairly, consistently, and in compliance with this manual.

Answer 17

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Question 18

HPM 9.2, Chapter 2, Substance Testing

All supervisors and managers must be cognizant of the protections and rights afforded by POBR when conducting investigations into instances of suspected substance abuse.

Answer 18

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Question 19

HPM 9.2, Substance Testing

It is the supervisor’s responsibility to confront and initiate proper action when faced with a situation involving substance abuse

Answer 19

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Question 20

HPM 9.2, Substance Testing

Supervisors must ensure:

• reasonable suspicion is supported by proper documentation
• sample is properly collected
• chain of custody is maintained
• employee’s rights are not violated

Answer 20

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Question 21

HPM 9.2, Substance Testing

State testing policy requires that specific managers are involved in all substance testing as a confirming official before any sample is collected.

Answer 21

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Question 22

HPM 9.2, Substance Testing

All employees are morally obligated to bring to the attention of a supervisor the actions of another employee that would lead one to believe the employee is involved in substance abuse.

Answer 22

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Question 23

HPM 9.2, Substance Testing

Critical elements to the program’s success:

• Consistency (decisions based on facts/evidence)
• Confirmation of reasonable suspicion by a specified manager (confirming official). Need not be present; via telephone is okay.
• Proper sample collection
• Chain of custody
• Control of quality (as it pertains to laboratory standards)
• Contracts (MOUs take precedence)

Answer 23

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Question 24

HPM 9.2, Substance Testing

General considerations: any specific test of bodily fluids will reveal personal information about the person providing the sample. This information may include drugs the person ingested, a disease such as diabetes, or some other medics, condition not previously known by the employer.

Answer 24

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Question 25

HPM 9.2, Substance Testing

Constitutional considerations:

• Fourth Amendment (search and seizure)
• Fifth Amendment (self incrimination)
• Fourteenth Amendment (due process)

Answer 25

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Question 26

HPM 9.2, Substance Testing

Fourth Amendment: Where there exist reasonable suspicion, the interests of the government outweigh the privacy interest of those individuals employed in positions that demand public trust and/or upon which the public’s health and safety depend.

Answer 26

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Question 27

HPM 9.2, Substance Testing

Fifth Amendment: The protections afforded by the amendment do not apply to chemical testing. Applicable only to testimonial or communicative evidence.

Answer 27

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Question 28

HPM 9.2, Substance Testing

Fourteenth Amendment: Requires the government to ensure procedural and substantive due process when an employee’s constitutional rights are affected.

Appeals under this amendment:

• lack of advanced notice of testing
• no advisement of consequences
• inadequate opportunity to respond to charges
• lack of opportunity to challenge test results or inability to order additional tests to compare results
• failure to establish impairment or job-relatedness of the tests

Answer 28

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Question 29

HPM 9.2, Substance Testing

It is imperative that the employee be made aware of the exact reason for the department’s actions, the consequences of a positive test, and/or what action the department will take if the employee refuses to submit to the requested test.

Answer 29

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Question 30

HPM 9.2, Substance Testing

Negligent supervision: Liability arises when it can be shown that a supervisor failed to supervise subordinate appropriately due to negligence which resulted in injury to a co-worker or the public. A supervisor must act quickly and reasonably when dealing with employees suspected of substance abuse. Department can be criticized for inaction as well as inappropriate action. Even if no indication of negligent supervision, the department could s till be held vicariously liable because of a questionable act by an employee.

Answer 30

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Question 31

HPM 9.2, Substance Testing

Negligent retention: Courts are holding employers responsible for retaining “dangerous” employees. Failure to act in a reasonable manner when confronted with indications of substance abuse could pose substantial liability. Liability can also arise from an act of deliberate indifference.

Answer 31

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Question 32

HPM 9.2, Substance Testing

The department must act reasonably considering constitutional and statutory provisions, departmental policies, and the individual circumstances. The department’s substance testing program must be administered fairly, consistently, and in accordance with this manual.

Answer 32

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Question 33

HPM 9.2, Substance Testing

California Government Code Sections 3300-3312 (Public Safety Officers Procedural Bill of Rights [POBR]), provide protections, define specific rights for persons employed in public safety positions in California.

Answer 33

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Question 34

HPM 9.2, Substance Testing

CalHR (California Department of Human Resources) current policy is contained in Title 2, CCR, and focuses on achieving a drug-free workplace while protecting the privacy and due regard for constitutional rights of state employees.

Answer 34

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Question 35

HPM 9.2, Substance Testing

The department does not condone the use of illegal substances under any circumstances. CalHR only addresses impairment on the job.

Answer 35

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Question 36

HPM 9.2, Substance Testing

No state employee who is on-duty, or on standby for duty, shall:

• use, possess, or be under the influence of illegal/unauthorized drugs or other illegal mind-altering substances
• use or be under the influence of alcohol to any extent that would impede the employee’s ability to perform his/her duties safely and efficiently.

Answer 36

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Question 37

HPM 9.2, Substance Testing

Employee’s shall not attempt to perform duties which, because of drugs taken due to a legal prescription, cannot be performed without posing a threat to the health and safety of others.

Answer 37

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Question 38

HPM 9.2, Substance Testing

Employees must report any known physical condition which might affect job performance, including the use of prescription medications.

Answer 38

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Question 39

HPM 9.2, Substance Testing

CalHR does not preclude an employee from voluntarily submitting to a substance test after being involved in a significant incident for the purpose of establishing the employee’s sobriety at the time of the incident as protection in the vent of future litigation.

Answer 39

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Question 40

HPM 9.2, Substance Testing

Only positions designated as “sensitive” by the Commissioner may be tested according to the provisions in this manual. Sensitive positions are peace officers and on-peace officers when all of the following exist:

• duties involve a greater than normal trust, responsibility for, or impact on, the health and safety of others
• errors in judgement, inattentiveness, or dismissed coordination, dexterity or composure while performing duties could result in mistakes that would endanger the health and safety of others
• employee own these positions work with such independence or perform such tasks that mistakes while impaired could not have been prevented by a supervisor r other employee

Answer 40

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Question 41

HPM 9.2, Substance Testing

CalHR rules do not permit the mandated substance testing of persons in non-sensitive positions. Although no mandatory testing for non-sensitive positions, substance abuse violations are actionable. Offer EAP and consult MOU for terms.

Answer 41

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Question 42

HPM 9.2, Substance Testing

Reasonable suspicion is the good faith belief based on:

• specific articulable facts or evidence that an employee may hVe violated the substance abuse policy and
• substance testing could reveal evidence in support of a violation

Answer 42

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Question 43

HPM 9.2, Substance Testing

Reasonable suspicion exists only after the appointing power or confirming official has considered the facts, and/or evidence, and agrees that they constitute a finding of reasonable suspicion.

Answer 43

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Question 44

HPM 9.2, Substance Testing

A PAS test cannot be used to establish reasonable suspicion. A BAC of .04 is a positive test for substance testing. Any detectable level of alcohol is prohibited by the Inconsistent and Incompatible Activities Statement and can result in an Adverse Action. If a PAS is used, a chemical test must still be obtained.

Answer 44

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Question 45

HPM 9.2, Substance Testing

Only questions pertaining to the employee’s possible need for medical attention should be asked during a Substance Abuse Investigation Interview.

Answer 45

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Question 46

HPM 9.2, Substance Testing

An anonymous tip is not sufficient, in and of itself, to order a substance test.

Answer 46

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Question 47

HPM 9.2, Substance Testing

CalHR requires that an informant be a peace officer who is willing to publicly testify on behalf of management. A reliable informant alone could be the foundation for establishing reasonable suspicion. The employee in question must be told who the informant is, what was said, and be given an opportunity to respond.

Answer 47

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Question 48

HPM 9.2, Substance Testing

The confirming official is the first designated manager in the supervisor’s chain of command.

Answer 48

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Question 49

HPM 9.2, Substance Testing

Confirming official shall:

• consider facts and evidence and agree they support reasonable suspicion
• ensure accurate and proper application of the rules
• provide guidance and direction
• authorize the substance test

Answer 49

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Question 50

HPM 9.2, Substance Testing

The purpose of a substance test is to determine current impairment, not past behavior.

Answer 50

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Question 51

HPM 9.2, Substance Testing

All of the elements upon which reasonable suspicion is based must be documented and distributed as indicated in Chapter 11, Documentation.

Answer 51

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Question 52

HPM 9.2, Substance Testing

April 7, 2005, CalHR discontinued the use of urine samples for alcohol testing in all state substance abuse programs. All alcohol testing will be conducted using evidential breath testing devices.

Answer 52

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Question 53

HPM 9.2, Substance Testing

CalHR rules provide for a urine test as the primary means and most wide,y used method of detecting substance abuse. Employee suspected of being impaired by alcohol and drugs are required to submit to a breath and urine test.

Answer 53

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Question 54

HPM 9.2, Substance Testing

Once reasonable suspicion is developed, the employee should be under continual supervisory observation until a sample is obtained. Employees should not be allowed to void bladder until collection of the sample.

Answer 54

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Question 55

HPM 9.2, Substance Testing

The best time to collect a substance testing sample is 2-4 hours after initial observation.

Answer 55

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Question 56

HPM 9.2, Substance Testing
If an employee in unable to provide a urine sample after a reasonable waiting period, this will be treated as a refusal, which constitutes. Presumption of impairment.

Answer 56

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Question 57

HPM 9.2, Substance Testing

Supervisor who establish reasonable suspicion should transport employee to approved medical or custodial facility for test. Employee is not allowed to drive him/herself. Uniformed employees must be given the opportunity to change into civilian clothing prior to transportation.

Answer 57

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Question 58

HPM 9.2, Substance Testing

If an employee’s refuses to cooperate, the supervisor is to order cooperation and advise that failure to do so will subject the employee to disciplinary action for subordination. If criminal prosecution is contemplated, normal arrest and evidence collection procedures should be used.

Answer 58

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Question 59

HPM 9.2, Substance Testing

The testing laboratory will notify the Medical Review Officer (MRO) of a negative test result. All positive test results will be communicated to the Medical Review Officer (MRO) for further evaluation. The MRO will attempt to contact the employee for information (such as legal prescriptions) to determine if there is a legitimate medical explanation for the positive result. If the MRO is unable to reach the employee for seven days, the test will be considered “positive by contact”. The MRO will the notify the Office of Internal Affairs (OIA).

Answer 59

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Question 60

HPM 9.2, Substance Testing

The Medical Review Officer (MRO) will not consider marijuana to be a legal prescription. Any test that returns positive for marijuana will be considered evidence in support of the department’s substance abuse policy.

Answer 60

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Question 61

HPM 9.2, Substance Testing

Of BAC is 0.00%then a urine test should be secured to determine the cause of impairment. Any detected level of alcohol would be the basis for an Adverse Action. Administrative actions can still be taken against an employee when results or less than .04%.

Answer 61

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Question 62

HPM 9.2, Substance Testing

The employee is entitled to a portion of a sample for re-testing at their expense.

Answer 62

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