HomeMy WebLinkAboutOrdinance No. 16-1992ORDINANCE NO. 16 -92
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD
COUNTY, FLORIDA, CREATING CHAPTER 352, .DRUG FREE
WORKPLACE. OF THE CODE OF ORDINANCES OF THE CITY OF
CAPE CANAVERAL, TO PROVIDE FOR THE IMPLEMENTATION
OF A DRUG FREE WORKPLACE POLICY; PROVIDING
INTERPRETATIONS REGARDING GENDER; REPEALING ALL
PORTIONS OF THE CODE IN CONFLICT HEREWITH;
ESTABLISHING A SEVERABILITY CLAUSE; AND PROVIDING
FOR AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL,
BREVARD COUNTY, FLORIDA, that:
Chapter 352 of the Code of Ordinances of the City of Cape
Canaveral is hereby enacted as follows:
Sec. 352.001 Findings.
The City finds that drug use has serious adverse affects on
workers and that maintaining a healthy and productive workforce,
safe working conditions free from the effects of drugs, is
important to the City. The City further finds that drug use
creates a variety of workplace problems, increased injury on the
job, increased absenteeism, increased financial burden on health
and benefit programs, increased workplace theft, decreased employee
morale, decreased productivity, and a decline in the quality of
delivery of municipal services. The City further finds that
certain drug testing standards are necessary to protect persons
participating in workplace drug testing programs and that standards
must be established to ensure fair and accurate testing for drugs
in the workplace. Therefore, it is the intent of this Ordinance to
implement a drug free work place in accordance with the standards
of Section 440.102, Florida Statutes.
Sec. 352.01 Definitions.
Except where the context otherwise requires as used in this
Ordinance:
A. The definitions contained in Section 440.102, Florida
Statutes, shall apply in the interpretation of this
Ordinance unless otherwise specified.
B. "Safety sensitive position" includes the City Manager and
Director of Public Works.
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 2
C. "Special risk" means any employee of the City who is
required as a condition of employment to be certified
under Chapter 633 or Chapter 943, Florida Statutes.
Sec. 352.02 Applicants and Employees.
A. Testing a Condition of Employment. The taking of samples
of urine, blood, or other physical specimen to identify
substance abusers are to be routinely given as part of
the normal City pre- employment procedure. Employment is
contingent on passing the drug test and applicants will
be so advised. Job applicants and employees will be
provided written notice apprising them of the City's
policy and program.
B. Re- Application: Applicants who are denied employment
because of a positive drug test will be permitted to
reapply for employment after a one year waiting period.
C. Time of Test: Drug testing will be required of
applicants only after an individual has been offered a
job or placed on a waiting list.
D. Consent: Job applicants and employees must first execute
a consent to testing for substance abuse prior to the
administration of the test. The consent form is part of
the written notice provided to applicants and employees.
Failure of an applicant to consent to drug testing shall
eliminate the applicant from employment opportunity with
the City. Failure of an employee to consent to drug
testing shall result in discipline or discharge.
Sec. 352.03 Reasonable Suspicion Testing.
An existing employee of the City may be required to submit to
a test to determine the existence of the use of drugs. When their
exists a reasonable suspicion that such employee is under the
influence of alcohol or is a user or abuser of drugs, reasonable
suspicion specific, objective, and facts and reasonable inferences
drawn from those facts in light of experience. Reasonable
suspicion drug testing shall not be required except upon the
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 3
recommendation of a supervisor who is at least one level of
supervision higher than the immediate supervisor of the employee in
question. Among other things, such facts and inferences may be
based upon:
A. observable phenomena while at work, such as direct
observation of drug use or of the physical symptoms or
manifestations of being under the influence of a drug;
B. abnormal conduct or erratic behavior while at work or a
significant deterioration in work performance;
C. a report of drug use, provided by a reliable and credible
source, which has been independently corroborated;
D. evidence that an individual has tampered with a drug test
during his employment with the City;
E. information that an employee has caused, or contributed
to an accident while at work; or
F. evidence that an employee has used, possessed, sold,
solicited, or transferred drugs while working, or while
on the employer's premises, or while operating the
employee's vehicle, machinery, or equipment.
All employees of the City shall be given a copy of the Notice
attached to this Ordinance as Attachment "A" apprising them of the
City's policy and program.
The City shall promptly detail in writing the circumstances
which form the basis of the determination that reasonable suspicion
existed to warrant the testing. A copy of this documentation shall
be given to the employee upon request and original documentation
shall be kept confidential and exempt from the provisions of
Section 119.07(1), Florida Statutes by the City and retained by the
City for at least one (1) year.
Sec. 352.04 Employee Discipline.
A. Except as provided in Subsection 5(C) below, the City may
not discharge, discipline, or discriminate against an
employee on the sole basis of the employee's first
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 4
positive confirmed drug test, unless the City has first
given the employee an opportunity to participate in, at
the employee's own expense, or pursuant to coverage under
a health insurance plan, an employee assistance program
or an alcohol and drug rehabilitation program, and
(1) the employee has either refused to participate in
the employee assistance program or the alcohol and
drug rehabilitation program or has failed to
successfully complete such program, as evidenced by
withdrawal from the program before its completion
or report from the program indicating
unsatisfactory compliance, or by a positive test
result on a confirmation test after completion of
the program; or
(2) the employee has failed or refused to sign a
written consent form allowing the City to obtain
information regarding the progress and successful
completion of an employee assistance program or an
alcohol and drug rehabilitation program.
B. An employee in a safety sensitive position shall be
placed by the City in a non - safety- sensitive position, or
if such position is unavailable, on leave status while
participating in an employee assistance program or an
alcohol and drug rehabilitation program. If placed on a
leave status without pay, the employee shall be permitted
to use any accumulated leave credits prior to being
placed on the without pay.
C. A special risk employee may be discharged or disciplined
for the first positive confirmed drug test result when
illicit drugs pursuant to Section 893.13, Florida
Statutes, are confirmed. No special risk employee shall
be permitted to continue work in a safety sensitive
position, but may be placed either in a non- safety-
sensitive position or on leave status while participating
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 5
in an employee assistance program or an alcohol and drug
rehabilitative.
D. Upon successful completion of an employee assistance
program or an alcohol and drug rehabilitation program,
the employee shall be reinstated to the same or
equivalent position that was held prior to such
rehabilitation.
E. The City shall not discharge, discipline, or discriminate
against an employee, or refuse to hire a job applicant,
on the basis of any prior medical history revealed to the
employer pursuant to this Ordinance.
F. If an employee is unable to participate in out - patient
rehabilitation, the employee may be placed on leave
status while participating in an employee assistance
program or an alcohol and drug rehabilitation program.
If placed on leave without pay status, the employee shall
be permitted to us any accumulated leave credits prior to
being placed on leave without pay. Upon successful
completion of an employee assistance program or an
alcohol and drug rehabilitation program, the employee
shall be reinstated to the same or equivalent position
that was held prior to such rehabilitation.
G. Any drug test performed pursuant to this Section may
occur before, during or immediately after the regular
work period of the employee, and shall be deemed to be
performed during work time for the purposes of
determining compensation and benefits for the employee.
H. The City shall not discharge, discipline, or discriminate
against an employee solely upon voluntarily seeking
treatment, while under the employ of the City, for a drug
related problem if the employee has not previously tested
positive for drug use, entered an employee assistance
program for drug related problems or entered an alcohol
and drug rehabilitation program. However, special risk
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 6
employees may be subject to discharge or disciplinary
action when the presence of illicit drugs pursuant to
Section 893.13, Florida Statutes, is confirmed.
I. The City shall refer an employee with a first time
positive confirmed drug test result to an employee
assistance program or an alcohol and drug rehabilitation
program, unless such employee is discharged as provided
in Sections 5(A) or 5(C). If the results of a subsequent
confirmed drug test are positive, the City may discharge
or discipline the employee.
J. If an employee enters an employee assistance program for
drug related problems or an alcohol and drug
rehabilitation program, the City shall require said
employee to submit to a drug test as a follow up to such
program on a quarterly basis for two (2) years after the
employee's entry into such program.
Sec. 352.05 Laboratories.
All drug testing will be performed at an approved laboratory
which is both convenient for the applicant or employee and cost
effective for the City. The City will use laboratories that have
been licensed by the appropriate state authorities. The City will
require that laboratories maintain control logs documenting the
validity of each and every test. Each positive test result must be
confirmed by gas chromatography -mass spectrometry or an equivalent
or more accurate scientifically accepted method approved by the
State Department of Health and Rehabilitative Services.
Sec. 352.06 Drugs Tested.
The drugs for which the City will test are those drugs listed
on Schedules I through V of Section 202 of the Controlled
Substances Act (21 U.S.C. 812).
Sec. 352.07 Lawful Use.
The City recognizes that certain drugs listed on the Schedules
of Controlled Substances may be prescribed by physicians and taken
lawfully by job applicants and employees. Other medications,
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 7
prescription and non - prescription, may alter or affect a drug test.
As part of the execution of the consent to testing, job applicants
will be required to list on the consent form any drug under
prescription from a licensed physician or any non - prescription drug
which they are taking. Prior to testing of employee, employees
shall disclose any drug under prescription from a licensed
physician or any non - prescription drug which they are taking. If
the drug test indicates the existence of a controlled substance
which the job applicant or employee has disclosed on the consent
form, the applicant will be eligible, for employment and the
employee shall not be subject to discipline or discharge, unless
the City cannot verify that the applicant or employee was
prescribed said drug.
Sec. 352.08 Test Procedures.
Whether the City collects a sample for drug testing or the
sample is collected by a laboratory or another third party, the
City shall assure that:
(a) a sample shall be collected with due regard to the
privacy of the job applicant or employee and in a
manner reasonably calculated to prevent
substitution or contamination of the sample.
(b) specimen collection shall be documented and the
documentation procedure shall include:
(1) labeling of specimen containers so as to
reasonably preclude the likelihood of
erroneous identification of test results;
(2) a form for the job applicant or employee to
provide any information he considers relevant
to the test, including identification of
currently or recently used prescription or
non - prescription medication or other relevant
medical information. Such form shall provide
notice of the most common medications by brand
name or common name, as applicable, as well as
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 8
by chemical name, which may alter or affect a
drug test. The providing of information shall
not preclude the administration of the drug
test, but shall be taken into account in
interpreting any positive confirmed results.
(c) Specimen collection, storage, and transportation to
the testing site shall be performed in a manner
which will reasonably preclude specimen
contamination or adulteration.
(d) Each initial and confirmation test shall be
conducted by a laboratory licensed by the State
Department of Health and Rehabilitative Services.
(e) A specimen for a drug test may be taken or
collected by:
(1) a physician;
(2) a physician assistant;
(3) a registered professional nurse;
(4) a licensed
practical nurse;
(5) a nurse practitioner;
(6) a certified paramedic who is present at the
scene of an accident for the purpose of
rendering emergency medical service or
treatment;
(7) a qualified person employed by a licensed
laboratory.
(f) A person who collects or takes specimen for a drug
test shall collect an amount sufficient for two (2)
drug tests as determined by rules of the Department
of Health and Rehabilitative Services.
(g) Every specimen which produces a positive confirmed
result shall be preserved by the licensed
laboratory that conducts the confirmation test for
a period of at least 210 days after the results of
the positive confirmation test are mailed or
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 9
otherwise delivered to the City. If the job
applicant undertakes an administrative or legal
challenge to the test result, then the job
applicant shall notify the laboratory and the
sample shall be retained by the laboratory until
the case or administrative appeal is settled.
During the 180 day period after written
notification of a positive test result, the job
applicant or employee who provided the specimen
shall be permitted by the City to have a portion of
the specimen retested at the job applicant's or
employee's expense at another laboratory licensed
and approved by the State Department of Health and
Rehabilitative Services chosen by the job
applicant. The second laboratory must test at
equal or greater sensitivity for the drug in
question as the first laboratory. The first
laboratory which performed the test for the City
shall be responsible for the transfer of the
portion of the specimen to be retested and for the
integrity of the chain of custody during such
transfer.
(h) Within five (5) working days after receipt of the
positive confirmed test from the testing
laboratory, the City shall inform the job applicant
or employee in writing of such positive test
result, the consequences of such results, and the
options available to the job applicant or employee.
(i) The City shall provide to the job applicant or
employee, upon request, a copy of the test results.
(j) Within five (5) working days after receiving notice
of a positive confirmed test result, the job
applicant or employee may submit information to the
City explaining or contesting the test results and
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 10
why the results do not constitute a violation of
the City's policy.
(k) If the job applicant's or employee's explanation or
challenge of the positive test results is
unsatisfactory to the City, a written explanation
as to why the job applicant's or employee's
explanation is unsatisfactory, along with a report
of positive results, shall be provided by the City
to the job applicant or employee; and all such
documentation shall be kept confidential by the
City pursuant to Section 440.102(8), Florida
Statutes and shall be retained by the City for at
least one (1) year.
(1) The City shall not refuse to hire a job applicant
or discipline, or discharge an employee on the sole
basis of a positive test result that has not been
verified by a confirmation test.
(m) The City shall use the chain of custody procedures
for specimens as established by the Department of
Health and Rehabilitative Services to insure proper
record keeping, handling, labeling and
identification of all specimens to be tested.
(n) The City shall pay the cost of all drug tests,
initial and confirmation, which it requires of job
applicants and employees except for tests required
by job applicants or employees as a result of a
challenge to the test of the City.
(o) The job applicant or employee shall pay the cost of
any additional drug test not required by the City.
(p) The City shall not discharge, discipline, or
discriminate against an employee solely upon the
employee's voluntarily seeking treatment, while
under the employ of the City, for a drug - related
problem if the employee has not previously tested
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 11
positive for drug use, entered an employee
assistance program for drug - related problems, or
entered an alcohol and drug rehabilitation program.
(q) If testing is conducted based on reasonable
suspicion, the City shall promptly detail in
writing the circumstances which formed the basis of
the determination that reasonable suspicion existed
to warrant the testing. A copy of this
documentation shall be given to the employee upon
request and the original documentation shall be
kept confidential by the City pursuant to Section
10 and shall be retained by the City for at least
one year.
Sec. 352.09 Disclosure.
A. All information, interviews, reports, statements,
memoranda and drug test results, written or otherwise,
received by the City through a drug testing program are
confidential communications and may not be used or
disclosed except in accordance with this ordinance and
state statute. Release of such information other than
for use in this program, shall be solely pursuant to a
written consent form voluntarily signed by the person
tested unless such release is compelled by a hearing
officer or a court of competent jurisdiction pursuant to
an appeal taken under law or unless deemed appropriate by
professional or occupational licensing board in a
disciplinary action involving the job applicant or
employee. The consent form releasing such information
must contain as a minimum:
(1) the name of the person who is authorized to obtain
the information;
(2) the purpose of the disclosure;
(3) the precise information to be disclosed;
(4) the duration of the consent;
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 12
(5) the signature of the person authorizing the release
of the information.
B. Drug testing information may be disclosed to the City's
legal counsel in connection with actions brought under or
relating to the City's drug testing program and policy.
C. Nothing contained herein shall be construed to prohibit
certifying bodies of special risk employees from
receiving information on the positive confirmed drug test
results for the purpose of reviewing certification.
Sec. 352.10 Miscellaneous.
A. No job applicant or employee whose drug test is confirmed
as positive shall by virtue of the result alone be
defined as a person having a handicap as cited in the
1973 Rehabilitation Act of the State of Florida.
B. No physician - patient relationship is created between an
employee or job applicant and an employer or any person
performing or evaluating a drug test, solely by the
establishment, implementation, or administration of a
drug testing program.
C. Nothing contained herein shall be construed to prevent
the City from imposing or enforcing any discipline
related to employee possession, use, sale or solicitation
of drugs, including convictions for drug related offenses
and taking action based on the violation of those rules.
D. The City shall give all employees a one time notice that
a drug testing program is being implemented. The
beginning of actual drug testing shall not commence prior
to sixty (60) days after such notice is given.
SECTION 2. The masculine, feminine or neuter pronouns used
herein shall be interpreted without regard to gender, and the use
of the singular or plural shall be deemed to include the other
whenever the context so requires.
SECTION 3. All portions of the Code in conflict herewith are
hereby repealed.
City of Cape Canaveral, Florida
Ordinance No. 16 -92
Page 13
SECTION 4. If any section, paragraph, phrase, or word of this
Ordinance is held to be unconstitutional or invalid, such portion
shall not affect the remaining portions hereof and it shall be
construed to have been a legislative intent to pass this Ordinance
without such unconstitutional or invalid part.
SECTION 5. This Ordinance shall take effect immediately upon
its adoption.
ADOPTED BY the City Council of the City of Cape Canaveral,
Florida, this 15th day of September
R. Kancili'a, CITY ATTORNEY
, 1992.
NAME
YES
NO
PORTER
X
RANDELS
X
SALAMONE
X
THURM
X
Firs Reac;: 8/18/92
Posted: 8/26/92
Advertised: 9/5/92
Second Reading: 9/15/92