Administrative Rules and Procedures to Implement Policy 404.06
Substance Free Workplace Rule
This rule prohibits the unlawful possession, use, or distribution of alcohol, the possession, use, or distribution of illegal drugs, or the misuse of prescription drugs by employees while the employees are on school district property or at a school district-sponsored student event, or at any activity in which the district or other school districts participate and students are present.
The rule applies to all employees of the school district, certificated and non-certificated, tenured and non-tenured. Any violation of the rule can result in the disciplinary action set forth in this rule.
The rule applies to the manufacture, distribution, delivery, or possession of illegal drugs or illegal drug paraphernalia, or the use of illegal drugs, “look-alike” drugs and drug paraphernalia, or alcohol.
The following are the definitions for application of this Rule:
1. Illegal Drugs – (1) controlled substances as defined in Neb. Rev. Stat. sections 28-401, 28-405 (Cum. Supp. 1988), and 28-419 (Reissue 1985) including but not limited to “uppers”, “downers”, barbiturates, marijuana, amphetamines, LSD, heroin, hashish, hallucinogenics or cocaine, and any metabolite or conjugated form thereof, (2) substances such as glue, to the extent any such substance is used for the purpose of mood or behavior alteration, and (3) any substance which alters the mood or behavior and which is not taken for medical purposes under a prescription by a licensed physician.
2. Alcohol – any substance subject to the jurisdiction of the Nebraska Liquor Control Commission and those beverages and alcoholic liquors defined in Neb. Rev. Stat. section 53-103 (Supp. 1989).
3. Distribution – any delivery, sale, transfer, handling, transmitting, administering, giving, or otherwise making available, alcohol, drugs, illegal drugs, look-alike drugs or drug paraphernalia unless required of the employee in the performance of his or her official duties as an employee of the district or unless so lawfully ordered by a licensed physician.
4. Drug Paraphernalia – all equipment, products, and materials of any kind which are used, intended for use, or designed to use, in manufacturing, injecting, ingesting, inhaling, or otherwise introducing drugs into the human body.
5. “Look-alike” Drugs – any substance that is not a drug under this Rule, but which, by the appearance (color, shape, size, markings, etc.) would lead a reasonable person to believe that the substance is an illegal drug.
6. Employee Assistance Programs – consist of any drug and alcohol counseling and rehabilitation and reentry program available to employees either by or through the District or through any organization.
Standards of Conduct – Prohibitions
A. Drugs
Employees of the Elkhorn School District shall not:
1. Be present on school district property, at any school district activities or report to work under the influence of any illegal drug.
2. Manufacture or distribute any illegal drug, look-alike drug, or drug paraphernalia while on district property, at a district-sponsored student event, or at an activity in which the district or other school districts participate and students are present.
3. Use or possess any illegal drugs, look-alike drugs, or drug paraphernalia while on property of the Elkhorn School District or at any activities of the Elkhorn School District.
4. An employee shall be deemed in possession of illegal drugs, look-alike drugs, or drug paraphernalia if the employee has illegal drugs, look-alike drugs, or drug paraphernalia on his or her person or under his or her control.
5. No employee shall take any medication, whether prescribed or non- prescribed, which may interfere with the safe and/or effective performance of his or her duties without advising his or her supervisor before beginning work of the intention to take and the taking of the medication. Use or possession of medically prescribed drugs or medications pursuant to the prescription by a licensed physician is not a violation of this policy; provided, however, that the use or taking of any medically prescribed drugs not in accordance with the prescription by a licensed physician is a violation of this policy.
Disciplinary Sanctions
Any employee violating any of the Standards of Conduct shall be subject to any or all of the following disciplinary sanctions:
1. A reprimand, either written or oral.
2. Suspension without pay.
3. Referral to an Employee Assistance Program.
4. Termination of employment, non-renewal of contract, or cancellation of contract.
The imposition of the Disciplinary Sanctions shall be consistent with local, state, and federal law and the school district may refer violations of Standards of Conduct to civil authorities for prosecution.
All Disciplinary Sanctions shall be administered to provide for due process in procedures imposing Disciplinary Sanctions.
Standards of Conduct
B. Alcohol
Employees of the Elkhorn School District shall not:
1. Be present on school district property or any school district activities or report to work while under the influence of alcohol or being in a condition of evidencing or giving the appearance of use of alcohol.
2. Use or possess alcohol or beverages which contain alcohol while on district property, at a district-sponsored student event, or at an activity in which the District or other school districts participate and students are present.
3. Distribute alcohol or beverages containing alcohol to students of the Elkhorn school district while either on district property, at a district-sponsored student activity, or an activity in which the district or other school districts participate and students are present.
4. The employee shall be deemed in possession of alcohol or alcoholic beverages if the employee has alcohol or alcoholic beverages on his or her person or under his or her control.
Disciplinary Sanctions
Any employee violating any of the foregoing Standards of Conduct shall be subject to any and all of the following Disciplinary Sanctions:
1. A reprimand, either written or oral.
2. Suspension without pay.
3. A referral to any Employee Assistance Program.
4. Termination of employment or non-renewal of contract.
The imposition of Disciplinary Sanctions shall be consistent with local, state, and federal law and the School District may refer violations of Standards of Conduct to civil authorities for prosecution.
All Disciplinary Sanctions shall be administered in accordance with all laws provided for due process.
C. Non-compliance With Employee Assistance Programs
Employees of the Elkhorn school district shall fully comply with and successfully complete the treatment directed by the district’s Employee Assistance Program when the employee is being disciplined for drug use or alcohol abuse.
An employee who is disciplined for drug use or alcohol abuse and is not terminated shall be referred to the district’s Employee Assistance Program for assessment, counseling treatment, rehabilitation and reentry.
The employee shall be required to execute the necessary releases so that the Employee Assistance Program may inform the district as to whether such employee is in compliance with the directed treatment. Failure on the part of the employee to execute the necessary releases of information or failure to comply with the directed treatment shall be considered insubordination and new and separate grounds for disciplinary action up to and including termination.
D. Criminal Convictions
Any district employee convicted under federal, state, or local law in any crime relating to the use, possession, or distribution of any illegal drugs or distribution of alcohol to minors may be subject to disciplinary sanctions as are applicable to the other Standards of Conduct dealing with alcohol or drugs. An employee convicted of any crime relating to the possession, use, or distribution of alcohol or drugs must notify the superintendent or designee no later than one business day after the conviction. Failure to timely notify may be grounds for disciplinary action, up to and including termination of employment.
E. Procedures
An employee suspected of being in violation of this Rule shall be interviewed by his or her immediate supervisor or administrator as soon as possible to determine whether the employee is in violation of this Rule or any provisions of this Rule. If possible, the immediate supervisor or administrator will summon a second supervisor or administrator to be present at the interview and to assist in the determination.
If the supervisor or administrator determines that the employee is in violation of any provision of this Rule, the supervisor or administrator shall immediately suspend the employee with pay from his or her duties. The employee shall be provided a written statement specifically stating why the employee is being suspended. The Notice shall contain a written acknowledgment signed by the employee that the employee (a) agrees with the determination that he or she is in violation of this Rule; or (b) understands the determination that is being made by the supervisor, but does not agree with that determination.
The supervisor or administrator shall immediately notify the superintendent of the action taken. The superintendent shall undertake such additional investigation as may be necessary, and shall provide the employee with a written statement within two school days specifically stating:
1. What additional action, other than being suspended from duties, if any, will be taken in accordance with this rule;
2. The date the employee may return to his or her regular duties;
3. The employee’s due process rights and time limits to appeal.
At all times, all district employees shall make every reasonable effort to ensure that any employee who is suspected of being under the influence of drugs and/or alcohol does not operate a motor vehicle unless able to do so safely and lawfully. Should an employee refuse to cooperate, and attempt to operate a motor vehicle when he or she cannot operate it safely or lawfully, law enforcement officials shall be immediately notified
operation);
(4) All time, other than driving time, in or upon any commercial motor vehicle;
(5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or Unloaded;
(6) All time spent performing the driver requirements of 49 CFR
operation);
(4) All time, other than driving time, in or upon any commercial motor vehicle;
(5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or Unloaded;
(6) All time spent performing the driver requirements of 49 CFR §§392.40 and 392.41 relating to accidents;
(7) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
(D) Employee conduct that is prohibited by the federal controlled substances and alcohol use and testing regulations includes:
1. Alcohol concentration.
No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater.
2. Alcohol possession.
No driver shall be on duty or operate a commercial motor vehicle while the driver possesses alcohol.
3. On-duty use. No driver shall use alcohol while performing safety-sensitive functions.
4. Pre-duty use.
No driver shall perform safety-sensitive functions within four (4) hours after using alcohol.
5. Use following an accident.
No driver required to take a post-accident alcohol test shall use alcohol for eight hours following the accident, or until the driver undergoes a post-accident alcohol test, whichever occurs first.
6. Refusal to submit to a required alcohol or controlled substances test.
(b)
(1) Alcohol tests. Shall be administered within two hours following the accident unless such cannot reasonably be done, and not more than eight hours following the accident.
(2) Controlled substance tests. Shall be administered within 32 hours following the accident.
(c) A driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused to submit to testing. The driver shall be permitted to leave the immediate scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care, but shall otherwise remain readily available for testing.
3. Random testing.
(a) Drivers shall be subject to random testing. The minimum annual percentage rate for random alcohol testing should be 25 percent of the average number of driver positions, or such minimum annual percentage rate as established from time to time by the FHWA. The minimum annual percentage rate for random controlled substance testing shall be 50 percent of the average number of driver positions.
(b) The selection of drivers for random alcohol and controlled substances testing shall be made by a scientifically valid method. Under the selection process used, each driver shall have an equal chance of being tested each time selections are made.
(c) The random alcohol and controlled substances tests shall be unannounced and the dates for administering random alcohol and controlled substances tests shall be spread reasonably throughout the calendar year.
(d) Each driver who is notified of selection for random alcohol and/or controlled substances testing shall proceed to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function at the time of notification, the driver shall cease to perform the safety-sensitive function and proceed to the testing site as soon as possible.
Random, reasonable suspicion, and follow-up alcohol testing shall be conducted only when the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing safety-sensitive Functions.
(F) The procedures that will be used to test for the presence of alcohol and controlled substances, to protect the employee and the integrity of the testing processes, to safeguard the validity of the test results, and to ensure that those results are attributed to the correct employee include:
The procedures outlined in 49 CFR 40, concerning procedures for Transportation Workplace Drug and Alcohol Testing Program, will be followed. This includes use of a “split-sample”; approach for drug testing and chain of custody procedures including documentation of screening aliquots.
(G) An employee is required to submit to alcohol and controlled substances tests administered pursuant to the federal regulations.
(H) A “refusal to submit”; to an alcohol or controlled substance test includes:
Refuse to submit (to an alcohol or controlled substances test) means that a driver (1) Fails to provide adequate breath for testing without a valid medical explanation after he or she has received notice of the requirement for breath testing, (2) fails to provide adequate urine for controlled substances testing without a valid medical explanation after he or she has received notice of the requirement for urine testing, or (3) engages in conduct that clearly obstructs the testing process. A failure to remain readily available for post-accident testing, or to notify the employer of the need for such testing, or to proceed to the test site immediately for random testing, may be deemed by the employer to constitute a refusal to submit.
The consequences for refusing to submit to an alcohol or controlled substances test
are as follows: A driver who has refused to submit to a required alcohol or controlled substance
(K) Information to assist employees in avoiding alcohol misuse and controlled substances use, signs and symptoms of an alcohol or a controlled substances problem, and available methods of intervening when such a problem is suspected: Information will be made available by the counselor to employees upon request.
Revised: September 12, 2022