5-6 Employee Drug/Alcohol Testing

Policy Type: Local

Responsible Office: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 10/7/2013

Current Revision Approved: 7/1/2021

General

Virginia Commonwealth University Police Department (VCUPD) is committed to ensuring the public’s safety, preserving public trust, maintaining the integrity of the department and its confidential records, and promoting a workplace that is alcohol and drug free. To this end, this policy establishes procedures for preplacement drug testing for all sworn and property and evidence applicants who are offered employment with VCUPD, reasonable suspicion testing for alcohol and/or drug use related to the workplace, and random testing for sworn and property and evidence personnel in accordance with law.

Any employee being tested for alcohol and/or drug use or other potential violation of this policy shall be treated with respect and dignity. All employee information of this nature shall be maintained in a strictly confidential manner and shall be shared only with those persons having a work-related need to know and/or as required by law.

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division supervisor to ensure that any violations of policy are investigated and appropriate training, counseling and/or disciplinary action is initiated.

Definitions

ALCOHOL – Pursuant to § 4.1-100 of the Code of Virginia, "Alcoholic beverages" includes alcohol, spirits, wine, and beer, and any one or more of such varieties containing one-half of one percent or more of alcohol by volume, including mixed alcoholic beverages, and every liquid or solid, powder or crystal, patented or not, containing alcohol, spirits, wine, or beer and capable of being consumed by a human being. Any liquid or solid containing more than one of the four varieties shall be considered as belonging to that variety which has the higher percentage of alcohol, however obtained, according to the order in which they are set forth in this definition; except that beer may be manufactured to include flavoring materials and other nonbeverage ingredients containing alcohol, as long as no more than 49 percent of the overall alcohol content of the finished product is derived from the addition of flavors and other nonbeverage ingredients containing alcohol for products with an alcohol content of no more than six percent by volume; or, in the case of products with an alcohol content of more than six percent by volume, as long as no more than one and one-half percent of the volume of the finished product consists of alcohol derived from added flavors and other nonbeverage ingredients containing alcohol.
APPLICANT – Any individual who seeks employment by completing an application form for a vacancy with the VCU Police Department
CONTROLLED SUBSTANCE – As defined by the Drug Control Act of Virginia, a "controlled substance" means a drug, substance, or immediate precursor in Schedules I through VI of this chapter. The term shall not include distilled spirits, wine, malt beverages, or tobacco as those terms are defined or used in Title 3.2 or Title 4.1. The term "controlled substance" includes a controlled substance analog that has been placed into Schedule I or II by the Board pursuant to the regulatory authority in subsection D of § 54.1-3443.
DRUG – Includes all of the following:
1. Any controlled substance taken other than as prescribed
2. Over-the-counter medications which may be abused
3. Substances not intended for human consumption, which when taken into the body, may impair mental faculties and/or physical performance, or alter the mood, perception or judgment of the individual consuming it
DRUG TEST – A laboratory test administered for the purpose of determining the presence or absence of a drug or its metabolites. All tests covered by this policy are the federal five drug panel tests, unless otherwise specified.
EMPLOYEE – For the purposes of this written directive, an employee includes sworn and property and evidence personnel of the VCU Police Department. All non-sworn, administrative personnel are covered under VCU’s Drug and Alcohol Policy (see also DHRM Policy No. 1.05 – Alcohol and Other Drugs).
MEDICAL REVIEW OFFICER (MRO) – For purposes of this policy, the Medical Review Officer is designated by a third-party vendor who provides the testing or the Medical Director of Employee Health Services (EHS) for reasonable suspicion and consultation on any other testing.
PRE-PLACEMENT DRUG TEST – A drug test conducted following an offer of employment for sworn personnel and property and evidence personnel.
REASONABLE SUSPICION – Reasonable suspicion must be based on articulable information or specific observations about the conduct of an employee while at work that would lead a reasonable person to believe that the employee is or has been using drugs or alcohol while on or off duty.
RANDOM DRUG TEST – A drug test conducted randomly while employed.
RETURN TO WORK AGREEMENT (RTW) – A written agreement, including a fitness for duty confirmation, between VCU and an employee who has been in treatment or counseling for an alcohol and/or drug-related problem and who will be returning to work at VCU.
TESTING - A test administered for the purpose of determining the presence or absence of a drug, its metabolites or alcohol.
WORKPLACE - Any VCU property, whether owned or leased, or any site where official duties are being performed by a VCUPD employee.

Prohibitions and Requirements

It is a violation of department policy for any sworn or Property and Evidence personnel to recreationally use marijuana.
An employee is prohibited from unlawfully manufacturing, distributing, dispensing, possessing or using a Controlled Substance in the workplace or on any VCU property.
Any employee who reports to work under the influence of or whose performance is impaired through the use of alcohol or drugs is subject to potential disciplinary action in accordance with applicable policies and procedures.
In accordance with Va. Code § 40.1-27.4, VCUPD is prohibited from discharging, disciplining, or discriminating against an employee for the lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee's diagnosed condition or disease pursuant to Va. Code § 54.1-3408.3.
1. Note: This statute does not restrict VCUPD’s ability to take any adverse employment action for any work impairment caused by the lawful use of cannabis oil or to prohibit possession during work hours (see Va. Code § 40.1-27.4(C)(i)).
Pursuant to VCU’s Drug and Alcohol Policy (see also DHRM Policy No. 1.05 – Alcohol and Other Drugs), employees are prohibited from engaging in all of the following acts in the workplace:
1. The unlawful or unauthorized manufacture, distribution, dispensation, possession or use of alcohol or illicit drugs in the workplace, on university property or as part of any university activity
2. Reporting to or remaining at work impaired by or under the influence of alcohol or illicit drugs
3. Violating any criminal drug law, based upon conduct occurring either in or outside the workplace
4. Violating any alcoholic beverage control law or law that governs driving while intoxicated based upon conduct occurring in the workplace
Employees are required to immediately report to their supervisors if they are arrested and have been charged with either of the following actions:
1. Violation of any criminal drug law, based upon conduct occurring either in or outside the workplace
2. Violation of any alcoholic beverage control law or law that governs driving while intoxicated
Supervisors are required to report such occurrences to the Office of the Chief of Police as soon as possible who will then notify Human Resources.
Violation of any of the foregoing prohibitions may subject an employee to disciplinary action including, but not limited to dismissal or suspension, in accordance with the State Employee Standards of Conduct, the University’s Rules and Procedures, the Promotion and Tenure Policies and Procedures, the University Policy for Administrative and Professional Faculty and Faculty Holding Administrative Appointments, and/or any other applicable university policy. Convictions for unlawful conduct under local, state, or federal criminal drug laws may result in penalties such as fines, imprisonment, and loss of driver’s license.
As a result of any violation of VCU’s Drug and Alcohol Policy or this policy, an employee may be referred to an appropriate evaluation or rehabilitation program as a condition of continued employment. Satisfactory participation in any such program shall be determined by VCUPD or an appropriate VCU official after consultation with the individual or organization providing the evaluation or rehabilitation.
Procedures relating to over-the-counter or prescription medication.
1. Disclosure:
  1. Prescription medication (controlled or non-controlled) is to be administered as per the instructions of the prescribing medical or dental practitioner.
  2. It is the responsibility of the officer to make the prescribing medical or dental practitioner aware of the safety sensitive nature of the officer’s job-related duties prior to prescribing any medication.
  3. If an officer is taking a prescription medication, the officer must ask the prescribing doctor, upon issuance, whether the medication will cause impairment. If so, the officer must notify their supervisor of the same.
  4. If an officer is using any medication (over-the-counter or prescribed) or medicinal cannabis oil in accordance with Va. Code § 40.1-27.4 and § 54.1-3408.3 and feels that they are impaired, the officer must notify their supervisor of the same and should not report to work in an impaired condition.
Post-Disclosure Handling:
1. After a supervisor learns that an officer is taking a medication that will affect the officer’s ability to perform their essential job functions, the supervisor should temporarily remove the subject officer from sworn duties and request guidance from VCU Employee Health and VCU Human Resources.

Pre-Placement Drug Testing Procedures

All sworn and property and evidence applicants who are offered employment with VCUPD will be required to complete a pre-placement drug test following an offer of employment. A verified positive test result will be grounds for withdrawal of the employment offer.
1. Note: Candidates for sworn positions may use their pre-employment drug screen to comply with this pre-placement testing provision.
2. Note: Marijuana (THC) will not be included within the pre-employment drug screening panel.
Job advertisements and offer letters must inform all sworn and property evidence applicants that any employment offer is contingent upon taking and passing a pre-placement drug test.
Process
1. The Operational Support Coordinator will schedule the new sworn or property and evidence employee for a pre-placement drug testing with the testing vendor, or will provide authorization and instructions for alternate testing sites, as necessary (i.e., testing done by an authorized lab in another state).
2. Testing shall occur within 90 days prior to the employee’s first day of work. (In limited circumstances, the new employee may begin limited work prior to the results of drug testing being available. In such cases, if the test results are verified as positive by the MRO, separation from employment will occur.)
3. Employees whose drug test results have not been obtained may not be assigned to provide police or security services independently until test results are verified and continued employment is authorized.
4. New employees will be asked to sign a consent form allowing the drug test and the release of test results to VCU.
5. New employees will be given two opportunities to visit the testing site for pre-placement assessment and testing.
6. Any new employee who fails to report twice for their appointment or who chooses not to participate in the drug testing process will be informed that the employment offer is being withdrawn.
Outcome
1. The MRO will make the final determination regarding test validity and may request re-analysis of the original sample or the collection of a new sample.
2. The MRO will notify the Operational Support Coordinator if an employee is clear to work (see subsection (D)(5) below for additional procedures following receipt of a verified positive drug test).
3. New employees whose test results are positive will be contacted by the MRO to discuss test results and will be informed that they have the option of having the same sample retested. New samples may not be submitted. The cost of initial pre-placement drug testing will be paid by VCUPD. If an applicant requests a retest following a positive test result, the cost of the retest will be the responsibility of the applicant.
4. If, following discussion with a new employee about a positive test result, the MRO determines that a legitimate explanation exists for the result, the MRO will report a verified negative result to the Operational Support Coordinator. New employees who pass the drug test will continue with employment.
5. If the MRO determines that the applicant has a verified positive drug test, the MRO will report this to the Operational Support Coordinator. The Operational Support Coordinator will immediately notify the Chief of Police who will instruct the hiring manager to withdraw the offer of employment or to terminate the new employee. The Business Operations Manager will notify the Human Resources Consultant who will then modify the application status in the eJobs system.
6. Any new employee who fails a pre-placement drug testing will not be considered for employment with VCUPD for a period of 24 months from the date of the test and may be required to provide proof of successful completion of a substance abuse rehabilitation program prior to being considered for employment.

Reasonable Suspicion Testing

Reasonable suspicion testing is conducted when the employee’s supervisor observes signs, symptoms, or other unusual behavior sufficient to justify a reasonable belief that the employee is under the influence of drugs or alcohol.
1. By way of example, and without limitation, any of the following conditions or circumstances, alone or in combination, may establish a reasonable suspicion:
  1. Unexplained inability to perform normal job functions
  2. Slurred speech
  3. The smell or appearance of alcohol or drugs on the breath or body
  4. Any unusual lack of physical coordination or loss of equilibrium
  5. Unexplained hyperactivity, depression or withdrawal
  6. Unexplained inability to think or reason at normal levels
  7. Unexplained behavior or thinking
  8. Information, when obtained from a reliable person with personal knowledge of facts that support the allegation, that an employee is using alcohol or illegal drugs in violation of this policy
  9. Involvement in an avoidable accident that caused, or had the potential to cause, personal injury or property damage
  10. Unexplained change in affect or mood
  11. Unexplained responses to daily problems
Employees shall not report to or remain at work under the influence of alcohol or drugs, use alcohol or drugs in the workplace, have a smell of intoxicants on their person when reporting to work, or have their job performance impaired as a result of the use of alcohol or drugs.
Reporting of Reasonable Suspicion
1. Recognizing the need to protect students, faculty, staff, patients and visitors, and to provide a safe and productive work environment, it is the responsibility of all VCUPD employees to report concerns of reasonable suspicion of use of drugs and/or alcohol to the immediate supervisor.
2. The immediate supervisor will document in writing details of the report, for example, what was seen or heard, how it was encountered, other witnesses, and any other pertinent information related to the event.
3. When an immediate supervisor has reasonable suspicion to suspect that an employee is in violation of this policy or has received a report of such, they shall immediately notify the Chief of Police or their designee through internal protocols. The Chief of Police or their designee will direct the supervisor to immediately transport the employee to Employee Health Services (EHS), or if after EHS hours, to VCUHS for a blood draw. The Chief of Police or their designee will notify Human Resources Employee Relations as soon as possible to discuss the appropriate course of action.
Notification
1. The supervisor will inform the employee that they suspect the employee of being in violation of this policy and provide the employee an opportunity to respond.
Testing of an employee for alcohol and/or drug use will be required if reasonable suspicion of alcohol or drug impairment exists. In the event that an employee refuses to submit to testing and/or to the release of the test results, the employee will be subject to disciplinary action, up to and including potential termination of employment.
Process
1. If during EHS hours, the supervisor will contact EHS to arrange for appropriate testing. If EHS is closed, the supervisor will transport the employee to VCUHS for appropriate testing (see (F)(6) below for further instructions).
2. The supervisor will accompany the employee to EHS or VCUHS for testing.
3. Prior to testing, the employee will be asked to sign a consent form for testing and release of information and will be informed that refusal to consent to testing or release of results is grounds for disciplinary action, up to and including termination of employment.
4. EHS or VCUHS will collect the sample or arrange for testing in accordance with EHS’ or VCUHS’ procedures. This test will also include the federal five drug panel, unless there is cause to expand the testing to include other possible drugs (e.g., possible drug diversion).
5. The supervisor will place the employee on pre-disciplinary leave, pending administrative investigation and receipt of the test results. An employee who is placed on leave due to reasonable suspicion of alcohol or drug impairment should be assisted in making arrangements for transportation to leave the workplace.
6. When EHS is closed and a reasonable suspicion incident occurs, the procedure described above will be modified as follows:
  1. The supervisor will contact the VCUHS Emergency Department (ED) Clinical Coordinator to make arrangements for testing according to ED’s procedures.
  2. The supervisor will furnish the ED Clinical Coordinator with information necessary to facilitate the testing process.
  3. The employee will be informed by the supervisor that testing has been arranged in the ED and the supervisor will accompany the employee to the appropriate location.
7. If the employee’s physical condition requires immediate medical attention, medical treatment will take priority; however, consent for alcohol or drug testing and release of test results separate from the medical assessment will be requested once the employee’s medical condition permits.
Outcome
1. Test results will be reported directly to the MRO.
2. A test result that identifies the presence of drugs or alcohol does not automatically indicate that an employee has used drugs or alcohol at work in violation of this policy.
3. When test results are positive, an investigation is conducted by the MRO, which will include, but is not limited to, a discussion between the MRO and the employee to determine the reason for the positive test. If an employee alleges that a positive drug test for THC metabolites is due to their lawful use of cannabis oil, the subject employee must provide proof of a valid written certification issued by a practitioner for the treatment of or to eliminate the symptoms of the employee's diagnosed condition or disease pursuant to Va. Code § 40.1-27.4 and § 54.1-3408.3.
4. If the MRO validates an employee’s explanation for the positive test result, then the MRO will report that there has not been a violation of this policy.
5. Employee requests for re-analysis of the original sample must be made to the MRO within three (3) working days of the employee’s receipt of the test results. The cost of initial reasonable suspicion testing will be paid by VCUPD; however, when an employee requests a retest following a positive test result, the employee will be responsible for any associated expenses.
6. During the testing process, an employee is considered to be at work and will be compensated for the time involved according to the compensation policies for their position.
Eligibility to return to work will be based on the MRO’s overall assessment. The MRO or their designee will consult with the supervisor regarding the test results and the employee’s return to work status.
Should an employee request a work accommodation in the course of a reasonable suspicion investigation, management will assess the request based on the provisions of the Americans with Disabilities Act (ADA).
Disciplinary action for a violation of this policy will occur in accordance with 1.60 Employee Standards of Conduct and Performance, in consultation with Human Resources. Prior to making a final determination regarding discipline, the supervisor will take into consideration the employee’s work history, job responsibilities, and willingness to participate in an evaluation and/or referral for treatment following the evaluation. Employees found to be in violation of this policy may be referred to the State Employee Assistance Provider on a case-by-case basis.

Random Testing

Random drug testing will be conducted quarterly by an outside vendor in accordance with federal testing and chain of custody rules. A random selection of 25% of employees will be made from the eligible VCUPD population.
Notification
1. Quarterly, VCUPD will provide the vendor with a list of employees who are eligible for random testing.
2. The vendor will then inform the Operational Support Coordinator of the eligible employees who have been selected for random testing.
3. Notification must be made to the selected employee during the employee’s next scheduled shift via telephone or in-person and without any prior announcement. For the purposes of this policy, written communication (including any electronically transmitted communication producing a visual or electronic message) and voicemail messages do not constitute effective notice to the selected employee.
4. The Operational Support Coordinator will advise the applicable Captain for the selected employee, who will then notify the employee that they have been randomly selected for testing. The applicable Captain will provide written confirmation to the Operational Support Coordinator once notification is made to the affected employee.
5. If an Assistant Chief of Police is randomly selected for testing, the Operational Support Coordinator will advise the Chief of Police, who will then notify the identified Assistant Chief of Police that they have been randomly selected for testing.
6. If the Chief of Police is randomly selected for testing, the Operational Support Coordinator will advise the Vice President for Administration, who will then notify the Chief of Police that they have been randomly selected for testing.
7. Employees who are notified to provide a specimen of their urine for a drug screening analysis must report by 4:30 PM that day to the collection site designated by VCUPD.
Process
1. The vendor will positively identify the employee who has been selected to provide a urine specimen. The employee’s identification card or other photo identification should be used for this identification.
2. The employee will then be directed to a secure collection area and required to comply with all testing protocols (i.e., providing a specimen of sufficient quantity, proper chain of custody, observation of process by employee).
3. Should the lab identify the presence of drugs in the initial analysis, they will immediately perform a confirmation test on the same specimen at the same laboratory site in accordance with testing protocols.
4. The vendor will report any discrepancies to the MRO, who will then contact the employee if there is a question concerning the specimen or there is a positive result. If the employee does not respond to the MRO within 24 hours of the initial attempts to contact, the MRO will request the Chief of Police’s assistance in making contact with the employee.
5. Procedures that protect the confidentiality of the MRO’s request will be used when contacting the employee.
6. When making contact, the Chief of Police will issue a due process memo and place the employee on pre-disciplinary leave. The pre-disciplinary leave will continue until the MRO notifies the agency that the situation has been resolved or a positive specimen has been confirmed.
Outcome
1. Once contacted, if the employee declines to contact the MRO or fails to do so within 72 hours, the MRO may verify the test as positive or as a refusal, whichever the circumstances dictate.
2. When test results are positive, an investigation is conducted by the MRO, and will include, but is not limited to, a discussion between the MRO and the employee to determine the reason for the positive test result. If an employee alleges that a positive drug test for THC metabolites is due to their lawful use of cannabis oil, the subject employee must provide proof of a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee's diagnosed condition or disease pursuant to Va. Code § 40.1-27.4 and § 54.1-3408.3.
3. If the MRO validates an employee’s explanation of the positive test result, then the MRO will report that there has not been a violation of this policy.
The cost of initial random drug testing will be paid by VCUPD; however, when an employee requests a retest following a positive test result, the employee will be responsible for any associated expenses.
Disciplinary action for positive test results will occur in accordance with 1.60 Employee Standards of Conduct, in consultation with Human Resources. Prior to making a final determination regarding discipline, supervisors will take into consideration the employee’s work history, job responsibilities, and willingness to participate in an evaluation and/or referral for treatment after the evaluation. Employees in violation of this policy may be referred to the State Employee Assistance Provider on a case by case basis.

Return to Work

In the event that an employee successfully completes a substance abuse evaluation or rehabilitation program, the employee may be considered for return to work or rehire, subject to the employee’s work record and any restrictions on activities designated as part of rehabilitation.
Should VCUPD permit the employee to return to work, the employee must sign a written return-to-work (RTW) agreement with the university.
The RTW agreement will specify the terms and conditions of returning to work, including job performance expectations and alcohol/drug testing requirements.
Non-compliance with the RTW agreement or refusal to sign the agreement will be grounds for termination or ineligibility for rehire.

Revision History

This policy supersedes the following archived policies:

10/7/2013 - Employee Drug/Alcohol Testing

5/21/2018 - Employee Drug/Alcohol Testing