1. (a) Prohibited conduct. Department employees have an obligation to project a positive image at all times to other employees and the public in order to uphold the public's trust in the department.

   1. (1) The consumption of an alcoholic beverage, the possession of an open container of an alcoholic beverage, the inappropriate use of an inhalant, and the illegal use or possession of a dangerous drug is prohibited in the workplace, while on duty or while operating a state vehicle.
   2. (2) An employee is prohibited from reporting to work, performing official duties, or operating a state vehicle while under the influence of alcohol, inhalants, or illegally used drugs or, if performance is impaired, while under the influence of lawfully prescribed or over-the-counter substances. The appropriate use of prescribed or over-the-counter drugs is permitted if work performance is not impaired.
   3. (3) The department prohibits the illegal sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs in the workplace, while on duty, or while operating a state vehicle. This prohibition includes any violation of state and federal controlled substances acts. Each employee must notify his or her supervisor of a conviction on charges of criminal drug statute violations occurring in the workplace within one work day upon return to work after such conviction. Pursuant to the Drug Free Workplace Act 1988, 41 U.S.C. §§701-707, the department will in turn notify the appropriate federal agency of such conviction within 10 days of receipt of the notice.
   4. (4) The department prohibits the illegal sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs by any employee outside of the workplace. A final applicant who has been convicted of felony charges related to the illegal sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs and who is still on probation or parole for that conviction will not be hired by the department.
   5. (5) A supervisor having actual knowledge that an employee possesses or is using dangerous drugs, possesses an open container of an alcoholic beverage, or is consuming an alcoholic beverage or inappropriately using inhalants while performing official duties for the department may not allow the employee to continue to perform official duties.
   6. (6) An employee who violates the policies and prohibitions of this section will be subject to consistently applied discipline, up to and including termination from the department. In addition to or in lieu of disciplinary action, an employee will be mandatorily referred to the EAP and required to successfully complete treatment, as described in subsection (d) of this section.
   7. (7) The department provides an employee assistance program and encourages employees to voluntarily use the services of the employee assistance program or treatment program to deal with alcohol, inhalant, or drug abuse before it affects job performance. Successful completion of such programs may mitigate the need for discipline.
   8. (8) Each employee, as a condition of employment, must comply with this section and must signify his or her acknowledgement by signing a department form.

2. (b) Testing. An employee will be notified, in writing, that he or she is subject to drug or alcohol testing, prior to being required to submit to an alcohol or drug test.

   1. (1) Pre-employment testing.

      1. (A) The department shall not hire or employ an external final applicant when a Job Vacancy Notice (JVN) has been posted for any position in the department and the person could potentially be required to drive for the department in that position, unless that person passes a drug test.
      2. (B) The department will notify a final applicant of the results of a pre-employment drug test, including the names of the drugs that were verified as positive, if the applicant requests the results.

   2. (2) Reasonable cause testing. An employee who is reasonably suspected of using alcohol or dangerous drugs in the workplace or of performing official duties while under the influence of alcohol or dangerous drugs will be required to undergo an alcohol or drug test.

      1. (A) The decision to test must be based on a reasonable belief by a supervisor, who has been trained on the signs and symptoms of alcohol and drug use, including alcohol or dangerous drugs based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, body odors, or performance indicators of probable use. The observations of physical, behavioral, or performance indicators of probable use may include indications of the chronic and withdrawal effects of dangerous drugs. The decision to test cannot be made by a supervisor who has not been trained on the signs and symptoms of alcohol and drug use.
      2. (B) When a supervisor reasonably suspects an employee of using alcohol or dangerous drugs in the workplace or of performing official duties while under the influence of alcohol or dangerous drugs, he or she will contact the substance control officer immediately. The supervisor or substance control officer will submit a written report of his or her observations to the program staff in the Human Resources Division within 24 hours.

      3. (C) If there is reasonable suspicion that the employee is under the influence of alcohol or drugs, it may be reasonable to conclude that the employee may be impaired to the extent that continued performance of duties will constitute a real and present danger to personal safety or property. Pending a decision to test under this subsection or if testing is not available, the employee will be removed from:

         1. (i) driving duties;

         2. (ii) commercial driving duties which include:

            1. (I) operating motorized equipment;
            2. (II) inspecting, servicing, or conditioning any vehicle; or
            3. (III) supervising, assisting with or loading or unloading a motor vehicle;
         3. (iii) safety sensitive activities as described in §4.36(a) of this title (relating to Safety Sensitive Employees); or
         4. (iv) crewmember duties.

      4. (D) An employee will be reassigned to other duties, if appropriate, or required to take leave until:

         1. (i) an alcohol test is administered and the employee's alcohol concentration measures less than 0.02;
         2. (ii) twenty-four hours have elapsed following the determination that there is reasonable suspicion that the employee has violated the prohibitions concerning the use of alcohol or drugs; or
         3. (iii) a drug test is administered and a negative result is reported by the medical review officer.
      5. (E) The substance control officer will make an immediate inquiry into the circumstances and confer or counsel with the employee, as may be appropriate. The substance control officer will document whether testing is justified based on the supervisor's report and the substance control officer's independent analysis. Reasonable cause testing for any employee must be approved by the district engineer, division director, office director, applicable member of the administration, or a designee not below the level of assistant district engineer, deputy division director, or director of administration, and by the program staff in the Human Resources Division.
      6. (F) An alcohol test should be administered within two hours following an incident. If an alcohol test is not administered within two hours, the department will continue to try to test up to eight hours following an incident. The substance control officer will prepare a record stating the reasons the alcohol test was not promptly administered.
      7. (G) A drug test should be administered as soon as possible. If a drug test is not administered within 32 hours following an incident, the department will cease attempts to administer a drug test, and prepare a record stating the reasons the test was not promptly administered.
   3. (3) Training. All supervisors and substance control officers must be trained in the signs and symptoms of drug and alcohol use and on the department's policy and procedures related to reasonable cause testing prior to any testing determinations.

3. (c) Administrative and disciplinary actions.

   1. (1) Consumption of an alcoholic beverage, the possession of an open container of an alcoholic beverage, dangerous drug possession or use, or the inappropriate use of an inhalant. An employee may be subject to administrative and disciplinary actions, including termination from the department for consumption of an alcoholic beverage, the possession of an open container of an alcoholic beverage, dangerous drug possession or use, or the inappropriate use of an inhalant.

      1. (A) An employee in the workplace, while on duty, or while operating a state vehicle may not:

         1. (i) possess an open container of an alcoholic beverage or consume an alcoholic beverage;
         2. (ii) possess or take a dangerous drug whether orally or by inhalation or injection; or
         3. (iii) inappropriately use an inhalant.

      2. (B) If an employee is directly observed participating in any of the prohibited activities outlined in this subsection, the following procedure will be used.

         1. (i) The supervisor or substance control officer will immediately remove an employee from performing any duties listed in subsection (b)(2)(C) of this section.
         2. (ii) If the supervisor has a reasonable suspicion that the employee is working under the influence at this time, based on documented observed physical, behavioral, or performance indicators, the employee will be sent for a reasonable cause test under subsection (b) of this section.

         3. (iii) If the supervisor does not have sufficient documented observed indicators of the employee working under the influence at this time, the employee will be given an opportunity to offer a reasonable explanation for the observed circumstances and behaviors. At the same time, the supervisor or substance control officer will immediately provide the employee with a letter which:

            1. (I) summarizes the observed circumstances and behavior;
            2. (II) notifies the employee that the consumption of alcohol, the possession of an open container of an alcoholic beverage, the possession or use of dangerous drugs, or the inappropriate use of an inhalant in the workplace, while on duty or while operating a state vehicle, subjects the employee to administrative and disciplinary actions;
            3. (III) advises the employee that he or she is being given an opportunity to offer a reasonable explanation; and
            4. (IV) advises the employee of the action to be taken if he or she refuses to explain his or her actions or if his or her response indicates that he or she violated the policies and prohibitions of subsection (a) of this section or is insufficient or not acceptable.
         4. (iv) If the employee refuses to explain his or her actions or if the employee's response indicates that he or she has violated the policies and prohibitions of subsection (a) of this section or is insufficient or not acceptable or the supervisor has sufficient documented observed indicators of the employee under the influence or the employee has an alcohol test result of .04 or greater, then the supervisor or the substance control officer will mandatorily refer the employee to the EAP and require him or her to successfully complete treatment, under subsection (d) of this section. Additional disciplinary actions may also be taken. In addition, the employee will be removed from his or her official job duties and required to take sick leave, vacation leave, compensatory time or leave without pay if the employee has exhausted his or her accrued leave, until 24 hours have passed.

         5. (v) If the employee has an alcohol test with a result of .02 or greater but less than .04 or the employee has been sent for a drug test, the supervisor or the substance control officer will remove the employee from official duties and the employee will be required to take sick leave, vacation leave, compensatory time or leave without pay, if the employee has exhausted his or her accrued leave, until:

            1. (I) 24 hours have passed following the alcohol test; or
            2. (II) a negative drug test result has been reported by the medical review officer.
         6. (vi) If the employee has a drug test with a verified positive result, then the supervisor or the substance control officer will mandatorily refer the employee to the EAP and require him or her to successfully complete treatment, under subsection (d) of this section.

         7. (vii) In addition to actions described in this subsection, an employee who has a positive drug test result or an alcohol test result of .04 or greater or who violates §4.34(b)(1)-(5) of this title (relating to Commercial Drivers) will complete the following requirements.

            1. (I) The employee will undergo a return-to-duty alcohol or drug test. The alcohol test must indicate a result of less than .02 or a drug test must indicate a verified negative result. An employee who fails to pass a return-to-duty drug or alcohol test has not successfully completed treatment and will be terminated.
            2. (II) The employee will provide a completed fitness-for-duty form as provided in subsection (d)(3) of this section prior to resuming any duties listed in subsection (b)(2)(C) of this section once he or she has completed the initial phase of treatment. An employee who is subject to §§4.34-4.36 of this title (relating to Commercial Drivers, Crewmembers, and Safety Sensitive Employees) and who is not required to provide a completed fitness-for-duty form as provided in subsection (d)(3) of this section, will still be subject to a return-to-duty test.
            3. (III) The employee will undergo follow-up testing for alcohol or dangerous drugs for a period of up to 60 months consisting of at least six tests in the first 12 months following the employee's return-to-duty. The number and frequency of follow-up testing shall be directed by the EAP staff. The EAP may terminate the requirement for follow-up testing at any time after the first six tests have been administered. An employee who fails to pass a follow-up drug test or alcohol test with a result of .04 or greater has not successfully completed treatment and will be terminated.
            4. (IV) The department will terminate the employee from employment unless he or she complies with all the requirements of subsection (d) of this section.

         8. (viii) With the exception of employees subject to §§4.34, 4.35, and 4.36 of this title (relating to Commercial Drivers, Crewmembers and Safety Sensitive Employees), the department will mandatorily refer an employee to the EAP if he or she:

            1. (I) refuses to consent to an alcohol or drug test;
            2. (II) fails to arrive at the testing site at the assigned time;
            3. (III) fails to cooperate with the collection site person; or
            4. (IV) refuses to sign the certification on the Breath Alcohol Testing form.
         9. (ix) An employee who is mandatorily referred under clause (viii) of this subparagraph and is assessed by the EAP as needing assistance with a chemical dependency problem, will be subject to return-to-duty and follow-up testing as provided in clause (vii) of this subparagraph.
   2. (2) Working under the influence. If a supervisor or substance control officer suspects an employee of working under the influence of alcohol, dangerous drugs, or inappropriately using inhalants based on a reasonable belief by a supervisor or substance control officer of specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, body odors, or performance of the employee, then the procedures described in paragraph (1)(B) of this subsection will be followed. If the employee denies the allegations, and the evidence is not conclusive, the supervisor or substance control officer will advise the employee that if it is subsequently discovered that he or she is working under the influence, then he or she will be subject to administrative and disciplinary actions.
   3. (3) Impaired performance due to lawful use of drugs. When, due to the use of lawfully prescribed or over-the-counter substances, the employee is unable to perform his or her assigned duties or perform any duty in a safe manner, the employee will be subject to temporary reassignment of duties or be required to take sick leave, vacation leave, compensatory time or leave without pay if the employee has exhausted his or her accrued leave. A physician's statement will be required before an employee will be able to return to his or her regular duties.
   4. (4) Voluntary admission of an alcohol, inhalant, or drug problem. An employee who voluntarily admits having a problem with alcohol, inhalant, or drug use will be mandatorily referred by his or her supervisor or substance control officer to the EAP and required to successfully complete treatment as described in subsection (d) of this section. Disciplinary action will not be taken against an employee because he or she voluntarily admits having a problem, provided that the admission occurs prior to a determination that the employee should be tested pursuant to §§4.32, 4.34, 4.35 or 4.36 of this title (relating to All Department Employees, Commercial Drivers, Crewmembers, and Safety Sensitive Employees). The mandatorily referred employee must successfully complete treatment and provide a letter to the substance control officer from the EAP staff or the treatment program's staff physician certifying successful completion.

   5. (5) Conviction of criminal drug statute violations in the workplace. Employees are prohibited from violating criminal drug statutes in the workplace. If an employee fails to report his or her criminal drug statute violation within one work day upon return to work, he or she will be suspended for five working days without pay. (For FLSA exempt employees, such suspensions must be within the same work week.) This procedure will be followed within 30 days of discovery of the conviction.

      1. (A) Employees who are convicted of criminal drug statute violations in the workplace which pertain to the sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs shall be terminated from the department.
      2. (B) Employees who are convicted of criminal drug statute violations in the workplace which involve possession with the intent to use a dangerous drug shall be mandatorily referred by the employee's supervisor or the substance control officer to the EAP and required to successfully complete treatment, as described in subsection (d) of this section.

   6. (6) Sale, distribution, transportation, or manufacture of dangerous drugs inside and/or outside the workplace. The illegal sale, distribution, transportation, manufacture or possession with intent to sell, distribute, transport or manufacture dangerous drugs by any employee inside or outside of the workplace is prohibited.

      1. (A) If a final applicant for a department position has been convicted of felony charges related to the selling, distributing, transporting, or manufacturing of dangerous drugs and he or she is on probation or parole for that conviction, he or she will not be hired by the department. If an applicant is hired by the department, and it is later discovered that the employee had been convicted prior to employment with the department and is on probation or parole for one of these acts, he or she will be immediately terminated from the department.
      2. (B) If an employee is arrested, charged, or indicted for selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, the employee or his or her designated agent shall report the arrest, charge, or indictment directly to the employee's supervisor or substance control officer within one work day upon return to work after its occurrence. Failure to report the arrest, charge or indictment will subject the employee to suspension for five working days without pay. (For FLSA exempt employees, such suspensions must be within the same work week.)
      3. (C) If an employee is convicted of selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, he or she will be terminated from the department. The employee or his or her designated agent shall report the conviction immediately to the employee's supervisor or substance control officer within one work day upon return to work after its occurrence. If the conviction is not reported, the employee will be terminated when the department discovers the conviction.
      4. (D) If an employee voluntarily admits to selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, he or she will be terminated from the department. An employee must sign a statement admitting his or her actions prior to termination.

      5. (E) If an employee is reasonably suspected of selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, due to direct observation of such acts in the workplace or by other reason such as the indictment, arrest, or charge of selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace the following procedure shall be followed.

         1. (i) The employee's supervisor will place the employee on immediate suspension with pay (administrative leave), pending appropriate investigation and confirmation by the department. If such acts are confirmed by the substance control officer, the employee will be terminated from the department.

         2. (ii) The employee shall immediately be provided with a letter which:

            1. (I) summarizes the facts upon which such action is taken;
            2. (II) notifies the employee that selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace subjects the employee to termination from the department;
            3. (III) advises the employee that he or she will have a specified period of time in which to provide a reasonable explanation to his or her supervisor or substance control officer; and
            4. (IV) advises the employee that if his or her response indicates that he or she violated the policies and prohibitions of this title or if it is insufficient or not acceptable or if an investigation by law enforcement, the department, or other authorities confirms the suspicion, the employee will be terminated from the department.

         3. (iii) The employee shall be terminated from the department if:

            1. (I) the employee fails to respond within the specified period or to provide an acceptable explanation; or
            2. (II) investigation by law enforcement or other authorities confirms the suspicion that the employee was selling, distributing, transporting, or manufacturing dangerous drugs.
         4. (iv) If the investigation reveals that the employee was using dangerous drugs inside the workplace and not selling, distributing, transporting or manufacturing dangerous drugs inside and/or outside the workplace, the employee will be mandatorily referred by his or her supervisor or substance control officer to the EAP and required to successfully complete treatment, as described in subsection (d) of this section.
         5. (v) If the investigation reveals that the employee was using dangerous drugs outside the workplace and not selling, distributing, transporting, or manufacturing dangerous drugs inside and/or outside the workplace, the employee will be made aware of the department's employee assistance program.
         6. (vi) When suspicious behavior is observed in the workplace, the substance control officer shall contact the Office of General Counsel or the program staff of the Human Resources Division at the earliest possible time before turning the matter over to law enforcement authorities.
   7. (7) Suspicious substance found. If a substance which appears to be a dangerous drug is found within an area under the effective control of an employee, actions contained in paragraph (6) of this subsection shall be followed.
   8. (8) New employees. If an employee has a positive drug test result or an alcohol test result of .04 or greater, or refuses to take a drug or alcohol test in his or her initial six month probation period, he or she will be terminated.

   9. (9) Recurrence of substance abuse. Upon the need to mandatorily refer an employee to the EAP for the second time for treatment under the department's substance abuse program, including mandatory referrals made under §§4.34, 4.35, and 4.36 of this title, the employee will not be referred but will be terminated from the department. An employee who received and completed two mandatory referrals prior to January 1, 1999, will be terminated if the employee needs to be mandatorily referred for a third time. An employee who received and completed one mandatory referral prior to January 1, 1999, will be mandatorily referred for the second time, if necessary, and will be terminated if needs to be mandatorily referred for a third time. The following mandatory referrals will not count as one of the mandatory referrals which would result in termination:

      1. (A) if an employee who is assessed by the EAP as not needing assistance with a chemical dependency problem on his or her first mandatory referral; or
      2. (B) an employee who is referred for a DUI/DWI conviction under §4.33 of this title (relating to Employees Who Drive for the Department).
   10. (10) Failure to successfully complete treatment. Employees who are mandatorily referred to the EAP will be terminated from the department if they fail to report to the EAP or fail to successfully complete treatment. Successful completion of treatment must be certified by the EAP, in writing, to the employee's substance control officer.

4. (d) Mandatory referral and treatment.

   1. (1) Mandatory referral. Except for policy violations which involve the sale, distribution, transportation or manufacture of dangerous drugs, refusing a required alcohol or drug test under §§4.34, 4.35, and 4.36 of this title, or a second occurrence of substance abuse after successful completion of treatment (except as provided in subsection (c)(9) of this section), an employee who voluntarily admits to or is otherwise established to have an alcohol, inhalant or drug abuse problem shall be mandatorily referred to the EAP. Employees who are mandatorily referred to the EAP will be removed from duties as listed in subsection (b)(2)(C) of this section and reassigned to other duties, if available, until he or she is able to provide a completed fitness-for-duty form as provided in paragraph (3) of this subsection. The employee's supervisor or substance control officer will meet with the employee to make the mandatory referral. During this meeting:

      1. (A) the supervisor or substance control officer will contact the EAP;
      2. (B) the supervisor or substance control officer will tell the EAP counselor that a mandatory referral is being made, the type of employee, the employee's name, the reason for the mandatory referral and any other background information requested by the counselor; and
      3. (C) the supervisor or substance control officer will have the employee talk to the EAP counselor, in private, to make an appointment.

   2. (2) Treatment. The department will pay for the cost of EAP counseling sessions, which includes an initial assessment. Employees who are referred by EAP to an outside treatment provider or counselor are responsible for any costs incurred as a result of the referral. Referral sources may be covered by the employee's insurance plan. An EAP counselor shall evaluate a referred employee to determine the extent of the dependence upon alcohol, inhalants, or drugs and, as may be appropriate, will refer the employee to treatment, which will include one or more of the following.

      1. (A) Inpatient treatment program. Employees participating in an inpatient rehabilitation treatment program will not be able to work while enrolled in the program.
      2. (B) Intensive outpatient treatment program. This program provides individual counseling, group therapy, and educational services for varying lengths of time, normally up to 10 weeks, and also includes an aftercare program. Employees participating in an outpatient program will normally be able to continue to work while participating in the program.
      3. (C) Counseling program. This program provides education and/or counseling sessions. The EAP staff, in consultation with the counseling program staff, will prescribe the content, frequency, and duration of these sessions, as appropriate, and may include group or individual education and/or counseling sessions.

   3. (3) Fitness-for-duty. The employee will be required to obtain a completed fitness-for-duty form prior to resuming any duties listed in subsection (b)(2)(C) of this section once he or she has completed the initial phase of treatment.

      1. (A) The EAP counselor will refer the employee to a medical doctor or other licensed practitioner to complete a fitness-for-duty form. The supervisor or substance control officer will send a copy of the employee's job description, including a list of all driving, commercial driving, crewmember and safety sensitive duties to the EAP.
      2. (B) The EAP counselor will provide written notification to the employee's substance control officer if the employee does not need assistance with a chemical dependency problem. In this case, a completed fitness-for-duty form will not be required.
   4. (4) Certification of successful treatment. After successfully completing treatment, completion must be certified by the EAP, in writing, to the employee's substance control officer.
5. (e) Education. The department will conduct an alcohol and drug-free awareness program which will provide all employees and supervisors with training regarding the department's policy, the personnel actions that will be taken for violations of the policy, the specifics of the program, the dangers of alcohol, inhalant, and drug abuse in the workplace, and the available employee assistance and treatment programs.

Source Note:The provisions of this §4.32 adopted to be effective October 27, 1995, 20 TexReg 8461; amended to be effective December 13, 1998, 23 TexReg 12452.