February 13, 2003
Mr. Burnace Vandergriff
104 East Main Street
Smithville, TN 37166
Re: Drug Testing
Dear Mr. Vandergriff:
You have indicated that two employees of the City of Smithville recently tested positive for controlled drugs, according to the following circumstances:
1. One employee who was taking pain medication ran out of medicine and took a morphine pill that his wife was taking. He disclosed this to the testing company prior to the test and the test was positive. Subsequently the employee obtained a statement from his personal physician that it was okay for the employee to take the pill.
2. The other employee, a police officer, tested positive for valium, and upon being notified of the positive result stated that there was no way he could have tested positive.
You have asked MTAS for assistance in identifying alternative courses of action in dealing with the employees who tested positive.
In reviewing the city’s Alcohol and Controlled Substances Testing for CDL Safety—Sensitive Positions, MTAS offers the following comments:
1. The company doing the testing should not have developed the testing program used by the City of Smithville.
2. It is highly recommended that test results be given the city within 24 hours of the test.
3. The testing program provided for in Resolution 510 contains conflicting provisions. Section VII. CONSEQUENCES OF A POSITIVE TEST, subsection B. Rehabilitation and/or Disciplinary Action provides: “Employees who test positive for any unauthorized use of controlled substances and/or alcohol will be terminated.” This provision is in conflict with Section IV, subsection E. Return to Duty and Follow-Up Testing, Section VII, subsection B, second paragraph provides information on resources available to help the employee and implies that the help is to enable the employee to return to work, although evaluation, counseling, and additional testing would be at the employee’s cost. Section VI is also in conflict with Section VII.
4. It is the opinion of MTAS that the first employee has given a reasonable explanation for testing positive, supported by a doctor’s statement.
5. In regard to the police officer, the City should verify that the MRO has contacted the officer and given him/her the opportunity to explain why the substance was present. If the employee has no reasonable explanation, then the city is faced with one of two alternatives: (1) terminate the officer, or (2) refer the officer for evaluation and counseling and require that he/she test negative prior to returning to work. If the city elects to terminate the officer, it has at least this problem: conflicting provisions in its drug policies. Any competent defense attorney would “wear the city out” on these conflicting policies. How previous employees who may have tested positive were disciplined could also be a problem.
6. Given these defects in the city’s drug testing program, MTAS recommends that the city refer the police officer for evaluation and counseling and require a negative test result prior to his/her returning to work.
7. Revise its drug-testing program to provide for either termination on a positive test result, or referral for evaluation and counseling, but not both.
Please advise if the city desires MTAS to develop a revised drug testing program.
Municipal Management Consultant
The University of Tennessee (MTAS)
cc Dennis Huffer, Legal Consultant
Richard Stokes, Human Resources Consultant