RELATES TO: 41 U.S.C. 701-707
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
40.325 authorizes the Kentucky Department of
Veterans Affairs to promulgate any administrative regulations necessary to
operate veterans' nursing homes in compliance with applicable state and federal
statutes and regulations. This administrative regulation establishes procedures
that will ensure state veteran nursing homes comply with
KRS
18A.043, 41 U.S.C. 701-707, and 82 Federal
Register 7920 (Mandatory Guidelines for Federal Workplace Drug Testing
Programs) through drug testing of employees caring for veteran residents in
veteran nursing homes.
Section 1.
Definitions.
(1) "Administrator" means the
person in charge of a Kentucky Veterans Center, or that person's specific
designee.
(2) "Applicant" means an
individual seeking employment in a test-designated position at a facility
operated by the department.
(3)
"Appointing authority" means the Commissioner, Kentucky Department of Veterans
Affairs, or the Commissioner's designee.
(4) "Controlled substance" is defined in
KRS
218A.010.
(5) "Confirmatory test" means a second
analytical procedure to identify the presence of a specific drug or metabolite
which is independent of the initial test and which uses a different technique
and chemical principle from that of the initial test in order to ensure
reliability and accuracy.
(6)
"Department" means the Kentucky Department of Veterans Affairs.
(7) "Donor" means the individual from whom a
urine specimen is collected.
(8)
"Drug" is defined in
KRS
218A.010.
(9) "Initial test" or "screening test" means
an immunoassay test to eliminate negative urine specimens from further
consideration and to identify the presumptively positive specimens that require
confirmation or further testing.
(10) "Kentucky Veterans Center" means a state
veterans nursing home operated by the Kentucky Department of Veterans
Affairs.
(11) "On duty" means being
engaged in, or on-call to be engaged in, the performance of work
responsibilities for the employer.
(12) "Reasonable suspicion" means the
quantity of proof or evidence, based on specific, objective facts and
rationally-derived inferences from those facts about the conduct of an
individual that would lead a reasonable person, based upon his or her training
or life experiences, to suspect that a KDVA employee has been using illegal
drugs, controlled substances, prescription or nonprescription medication, or
alcohol in violation of this administrative regulation.
(13) "Refusal to submit to a drug test" means
the following:
(a) Failing to provide an
adequate urine sample without an adequate medical explanation;
(b) Engaging in conduct that obstructs the
testing process; or
(c) Refusing to
be tested.
(14) "Sample"
means a representative portion of a urine specimen or quality control sample
used for testing.
(15) "Serious
work accident" means any on-duty accident or incident resulting in personal
injury or death to any person.
(16)
"Specimen" means the portion of urine that is collected from a donor.
(17) "Support services" means positions that
do not provide direct resident or child care and includes employees in the
fields of maintenance, dietary services, social services, recreational
services, and administrative services.
(18) "Test-designated employee" means an
individual employed at a KDVA Veterans Center who provides care, treatment, or
support services to a resident of the facility.
Section 2. Applicability.
(1) The Department shall develop and
implement test-designated employee drug testing procedures subject to the
approval of the appointing authority.
(2) This administrative regulation applies to
test-designated position applicants and test-designated position
employees.
(3) This administrative
regulation applies to drug testing conducted under the authority of
KRS
40.325 to carry out the requirements of
18A.043 and 41 U.S.C.
701-
707 regarding a drug-free workplace.
(4) Coordination of state and federal
administrative regulations. This administrative regulation shall also apply to
an employee subject to mandatory federal regulations governing drug testing.
However, the employee is subject only to the provision of the federal
regulation in any circumstance in which:
(a)
It is not possible to comply with both this administrative regulation and the
federal regulation; or
(b)
Compliance with this administrative regulation is an obstacle to the
accomplishment and execution of any requirement of the federal
regulation.
Section
3. Prohibited Behavior. The following activities are prohibited
while on duty or on KDVA Veteran Center grounds:
(1) The unlawful manufacture, distribution,
sale, dispensation, possession, or use of any controlled substance;
(2) Consuming or being under the influence of
illegal drugs, drugs illegally obtained, or alcoholic substances;
(3) The use, misuse, or abuse of prescription
or non-prescription medication in a quantity sufficient to impair a
test-designated employee's ability to perform assigned duties or in any way
place patient or fellow employee safety at risk; or
(4) Interfering with any testing procedure or
tampering with any test sample.
Section 4. Testing of Test-Designated
Employees.
(1) An applicant for a
test-designated position, as a condition of continued employment, shall be
subject to a drug test as provided in this administrative regulation.
(2) The Department shall establish and have
operational the test-designated employee drug testing procedures as provided in
this administrative regulation within 120 days of the effective date of this
administrative regulation.
(3)
Tests authorized. The following tests shall be authorized:
(a) Reasonable suspicion testing. A
test-designated employee shall submit to a drug test if there is reasonable
suspicion that the employee has violated this administrative
regulation.
(b) Pre appointment
testing. An applicant being considered for a test-designated position shall
submit to and pass a drug test prior to being appointed to the
position.
(c) Post accident
testing. A test-designated employee shall submit to a drug test if there is
evidence that the test-designated employee may have caused or contributed to a
serious work accident.
(d) Random
drug testing: A test-designated employee shall submit to a drug test if the
employee is selected as part of the random drug testing component of the KDVA
Drug Testing Program.
1. The appointing
authority may direct that up to twenty-five (25) percent of the total number of
test-designated employees per each KDVA Veterans Center be selected for drug
testing each year.
2. Selection
shall be done on a purely random basis according to drug testing procedures
adopted within 120 days of the effective date of this regulation.
3. Should a test-designated employee be
randomly selected more than once per year, that employee shall not be tested if
the immediate previous testing of that person took place within sixty (60) days
of the new random selection date.
(e) Follow-up testing. A test-designated
employee shall submit to up to three (3) follow-up drug tests per year at the
direction of the appointing authority within one (1) year of any of the
following occurrences:
1. The employee's
voluntary disclosure of drug problems;
2. Entry into, or completion of a drug
rehabilitation program;
3. Employee
failure in a pre-appointment drug test or refusal to take a pre-appointment
drug test; or
4. Any time the
employee has been disciplined for violating this regulation.
Section 5.
Penalties.
(1) Positive test results.
(a) A positive test result shall constitute a
violation of this administrative regulation and shall constitute just cause for
the appointing authority to discipline the donor, up to and including
dismissal, according to applicable laws, regulations, and policies.
(b) The appointing authority shall notify the
donor, in writing, of the penalty that may be imposed, including any mandatory
penalties, for violating this administrative regulation.
(c) An appointing authority shall immediately
remove a test-designated employee from the employee's duties if the employee
tests positive for prohibited drugs or otherwise violates this administrative
regulation.
(2)
Employees selected for a test-designated position. An employee selected for a
test-designated position is prohibited from serving in the test-designated
position until the employee has submitted to and passed a pre-appointment drug
test. If the employee fails or refuses to submit to the drug test, interferes
with a test procedure, or tampers with a test sample, the following shall
occur:
(a) An applicant not presently employed
by the Commonwealth shall not be appointed to the test-designated
position;
(b) An applicant who is
employed by the Commonwealth, but is being considered for promotion to or
otherwise appointment to the test-designated position, shall not be promoted or
otherwise appointed to that position; or
(c) An applicant who is employed by the
Department, who fails or refuses to submit to the drug test, shall be subject
to disciplinary actions for the failure or refusal.
(3) Self-reporting. A test-designated
employee who voluntarily discloses to the appointing authority a problem with
drug abuse (controlled substances, illegal substances, or alcohol abuse) shall
not be disciplined for the disclosure if it occurs prior to submitting to a
drug test authorized by Section 4(3)(a) through (d) of this administrative
regulation (pre appointment, reasonable suspicion, post-accident, or random),
but shall be provided an opportunity to take leave to enter a drug
rehabilitation program.
(a) If a
test-designated employee self-reports drug abuse as stated in this subsection,
the appointing authority may remove the employee from the care of residents and
of children upon receiving the report from the employee.
(b) A test-designated employee may
self-report and avoid disciplinary action only once during his or her
employment.
(c) A self-reporting
employee remains subject to all drug testing requirements and other
requirements outlined in this regulation.
(4) Federal drug testing programs. Nothing in
this administrative regulation shall preclude the appointing authority from
implementing a drug-testing program required by federal law.
Section 6. Drugs Included.
(1) When a drug test is administered, the
department shall, at a minimum, test for:
(a)
Marijuana;
(b) Cocaine;
(c) Opiates;
(d) Amphetamines;
(e) Phencyclidine;
(f) Morphine;
(g) MDMA (Ecstasy);
(h) Methadone;
(i) Benzodiazepines;
(j) Barbiturates; and
(k) Oxycodone.
(2) If conducting reasonable suspicion or
post-accident drug testing, the department may test for any drug listed in
Schedule 1 or 2 as defined in KRS Chapter 218A.
(3) Before the department tests for other
drugs, it shall first obtain approval from the appointing authority.
(4) The department or contract agency
requesting approval for the testing of other drugs shall submit to the
appointing authority the agency's proposed initial test methods, testing
levels, and proposed performance test program.
(5) This administrative regulation shall not
limit an agency that is specifically authorized by law to include additional
categories of drugs in the drug testing of its own employees.
(6) Initial and confirmatory drug testing
conducted pursuant to this administrative regulation shall utilize cutoff
levels as specified in the federal "Mandatory Guidelines for Federal Workplace
Drug Testing Programs," cited as 82 Federal Register 7920.
(7) Drug test specimens that meet or exceed
the cutoff levels as specified in subsection (6) of this section shall be
reported as a positive test result and shall constitute a failed drug
test.
(8) Drug test specimens that
test below the cutoff levels as specified in subsection (6) of this section
shall be reported as a negative test result and shall constitute a passed drug
test. No further testing of a negative specimen for drugs shall be permitted,
and the negative specimen shall be discarded or pooled for use in a
laboratory's internal quality control program.
Section 7. Test-Designated Employee Drug
Testing Procedures.
(1) The test-designated
employee drug-testing program developed pursuant to Section 2 of this
administrative regulation shall be implemented in accordance with nationally
recognized standards as specified in the federal "Mandatory Guidelines for
Federal Workplace Drug Testing Programs."
(2) All costs associated with implementing
the test-designated employee drug-testing program developed pursuant to Section
2 of this administrative regulation shall be borne by the Office of the
Kentucky Veterans Center.
(3) The
appointing authority shall maintain records concerning all Veterans Center
employee drug testing in a secure manner, so that disclosure of information to
unauthorized persons does not occur.
(4) Except as required by law or expressly
authorized or required in this section, the appointing authority or anyone with
knowledge shall not release employee information that is contained in the
records maintained pursuant to this administrative regulation.
(5) An employee subject to testing shall be
entitled, upon written request, to obtain copies of any records pertaining to
the employee's drug tests. The appointing authority shall promptly provide the
records requested by the employee. Access to an employee's records shall not be
contingent upon payment for records other than those specifically
requested.
(6) The appointing
authority may disclose information required to be maintained under this
administrative regulation pertaining to an employee to that employee or to the
decision-maker in a lawsuit, grievance, or other proceeding initiated by or on
behalf of the individual, and arising from the results of a drug test
administered under the requirements of this administrative regulation or from
the appointing authority's determination that the employee engaged in
prohibited conduct (including a worker's compensation, unemployment
compensation, or other proceeding relating to a benefit sought by the
employee).
(7) The appointing
authority shall release information regarding an employee's records as directed
by the specific, written consent of the employee authorizing release of the
information to an identified person. Release of this information shall be in
accordance with the terms of the employee's consent.
Section 8. Test-Designated Employee
Notification.
(1) New employees shall receive
information and training concerning this administrative regulation as part of
the employee's initial orientation training.
(2) Current employees shall receive
information and training concerning this administrative regulation within the
first three (3) months following the effective date of this administrative
regulation.
(3) Information and
training provided pursuant to subsection (2) of this section shall include
information regarding the type and nature of services and supports available
through the Kentucky Employee Assistance Program, as well as how to access
these services and supports.
(4)
The Personnel Office within each Veterans Center shall maintain documentation
that all employees have received information and training concerning this
administrative regulation and shall provide a copy of that documentation to the
Administrative Branch Manager, Office of Kentucky Veterans Center, who shall
coordinate with the Personnel Administrator of the Office of the Commissioner,
Frankfort, Kentucky.
(5) All
test-designated employees shall sign a document certifying:
(a) Receipt of information and training
concerning this administrative regulation;
(b) An understanding of the requirements,
limitations, and restrictions on employee conduct contained in this
administrative regulation; and
(c)
An understanding of the potential consequences, up to and including dismissal,
for violation of this administrative regulation.
Section 9. Employee Duty to Report
Convictions. A test-designated employee shall report to the KDVA headquarters
through his or her immediate supervisor any criminal drug statute for which he
or she was convicted within five (5) working days of the conviction.
Section 10. Prescription and Nonprescription
Medications.
(1) A test-designated employee
taking a prescription or nonprescription medication prior to or during the work
shift shall immediately inform his or her supervisor of this fact if:
(a) The medication's indications and
contraindications give the employee reason to believe that the medication may
in some way impair work performance; or
(b) Having once taken the medication, the
employee begins to experience an unexpected, typical, or adverse reaction to
the medication, which impairs work performance.
(2) An employee who fails to comply with
subsection (1) of this section shall be subject to disciplinary action up to
and including termination of employment.
(3) Having been notified by an employee
pursuant to subsection (1) of this section the employee's supervisor shall
closely monitor the employee's work performance throughout the employee's work
shift. If the supervisor determines that there is a sufficient perceived
impairment of the employee's work performance so as to raise concerns related
to employee, resident, or child safety, the supervisor shall notify the
administrator concerning the employee's impaired work performance. The
administrator shall then conduct an assessment and make a determination
regarding the employee's impaired work performance.
(4) If the results of an assessment conducted
pursuant to subsection (3) of this section indicate that the employee's work
performance is impaired so as to raise concerns related to employee, resident
or child safety, the administrator shall:
(a)
Transfer or temporarily assign the employee away from resident care or child
care, and to a job function unrelated to such care, provided that the transfer
or temporary reassignment does not place the employee or other employees at
risk of injury or otherwise jeopardize the orderly operation of the Veterans
Center; or
(b) Allow the employee
to depart the workplace and use available leave time, taking care to assist the
employee if the impairment jeopardizes the safety of the employee or other
employees.
(5) The
employee shall be allowed to return to regular work duties if the results of an
assessment conducted pursuant to subsection (3) of this section indicate that
the employee's work performance is not impaired.