DHE(LEGAL) - EMPLOYEE STANDARDS OF CONDUCT: SEARCHES AND ALCOHOL/DRUG TESTING
Citizens, including district employees, have a right to be free from unreasonable searches and seizures. U.S. Const. Amendment IV; Tex. Const. Art. I, Sec. 9
A district may search an employee or an employee's property if:
- There are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct; and
- The search is reasonably related in scope to the circumstances that justified the interference in the first place.
O'Connor v. Ortega, 480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985)
In addition, a district may search an employee's workplace for noninvestigatory, work-related purposes, if there are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct. O'Connor v. Ortega, 480 U.S. 709 (1987)
Blood, urine, and breath tests of public employees to determine drug use are searches under the Fourth Amendment of the U.S. Constitution. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989)
Random Drug Testing
A district may conduct drug tests, without a warrant and without individualized suspicion, when the test serves special governmental needs that outweigh the individual's privacy expectation. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
Random alcohol and drug testing of employees in "safety-sensitive" positions may be permissible when the intrusiveness of the search is minimal and a board is able to demonstrate that the drug-testing program furthers its interest in ensuring the physical safety of students. "Safety-sensitive" positions include those that involve the handling of potentially dangerous equipment or hazardous substances in an environment including a large number of children. Aubrey v. Sch. Bd. of LaFayette Parish, 148 F.3d 559 (5th Cir. 1998)
Note: The following testing requirements apply to employees who operate commercial motor vehicles and are subject to commercial driver's license requirements in accordance with federal regulations.
Testing of Drivers
A district shall conduct testing, in accordance with federal regulations, of commercial motor vehicle operators for use of alcohol or a controlled substance that violates law or federal regulation. 49 U.S.C. 31306; 49 C.F.R. Part 382
Commercial Motor Vehicle Defined
A commercial motor vehicle is defined as a motor vehicle used to transport passengers or property that:
- Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;
- Has a gross vehicle weight rating of 26,001 or more pounds; or
- Is designed to transport 16 or more passengers, including the driver.
49 C.F.R. 382.107
A district shall ensure that all alcohol or controlled substances testing conducted under 49 C.F.R. Part 382 complies with the procedures set forth in 49 C.F.R. Part 40. 49 C.F.R. 382.105
U.S. Department of Transportation (DOT) tests must be completely separate from non-DOT tests in all respects. DOT tests must take priority and must be conducted and completed before a non-DOT test is begun. 49 C.F.R. 40.13
Required DOT testing includes:
- Pre-employment controlled substance tests required under 49 C.F.R. 382.301 [see DBAA];
- Post-accident alcohol or controlled substance tests required under 49 C.F.R. 382.303;
- Random alcohol or controlled substances tests required under 49 C.F.R. 382.305;
- Reasonable suspicion alcohol or controlled substance tests required under 49 C.F.R. 382.307;
- Return-to-duty alcohol or controlled substances tests required under 49 C.F.R. 382.309; or
- Follow-up alcohol or controlled substance tests required under 49 C.F.R. 382.311.
No driver shall refuse to submit to a required DOT test. A district shall not permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions.
49 C.F.R. 382.211
Education and Treatment
A district is not required to provide an evaluation by a substance abuse professional or any subsequent recommended education or treatment for an employee who has violated a drug and alcohol regulation of the DOT.
However, if a district offers an employee an opportunity to return to a safety-sensitive duty following a violation, the district must, before the employee again performs that duty, ensure that the employee receives an evaluation by a substance abuse professional and that the employee successfully complies with the professional's evaluation recommendations.
49 C.F.R. 40.289
If a district permits an employee who has violated a DOT drug and alcohol regulation to return to safety-sensitive functions, the district must ensure that the employee takes a return-to-duty test. This test cannot occur until after the substance abuse professional has determined that the employee has successfully complied with prescribed education and/or treatment. The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety-sensitive duties.
A district is not required to return an employee to safety-sensitive duties because the employee has met the conditions described in the preceding paragraph. Return-to-duty is a personnel decision that the district has the discretion to make subject to legal requirements.
49 C.F.R. 40.305(a)–(b)
A district shall provide educational materials that explain the federal requirements and the district's policies and procedures with respect to meeting the requirements. The district shall ensure that a copy of these materials is distributed to each driver before the start of alcohol and controlled substances testing under 49 C.F.R. Part 382 and to each driver subsequently hired or transferred into a position that requires driving a commercial motor vehicle. Written notice to representatives of employee organizations of the availability of this information shall also be provided. The materials shall include detailed discussion of at least the items listed at 49 C.F.R. 382.601. 49 C.F.R. 382.601
A district required by federal safety regulations to conduct alcohol and drug testing of an employee who holds a commercial driver's license shall report the following information to the Department of Public Safety:
- A valid positive result on an alcohol or drug test and whether the specimen producing the result was a dilute specimen. "Valid positive result" means an alcohol concentration of 0.04 or greater on an alcohol confirmation test, or a result at or above the cutoff concentration levels listed in 49 C.F.R. 40.87 on a confirmation drug test. "Dilute specimen" means a specimen with creatinine and specific gravity values that are lower than expected for human urine.
- A refusal to provide a specimen for an alcohol or drug test.
- An adulterated specimen or substituted specimen, as defined at 49 C.F.R. 40.3, on an alcohol or drug test.
For purposes of this requirement, the term "employee" includes applicants for employment subject to pre-employment testing.
Transp. Code 644.251–.252; 49 C.F.R. 40.3