Chapter 123:1-76 Drug-Free Workplace Program

123:1-76-01 Drug-free workplace definitions of terms.

For purposes of the drug-free workplace services program:

(A) "Abuse" means:

(1) Any use of an illegal drug;

(2) Intentional misuse of any over-the-counter drug in cases where such misuse impairs job performance;

(3) Use of any prescription drug in a manner inconsistent with its medically prescribed intended use, or under circumstances where use is not permitted;

(4) Use of alcohol where such use impairs job performance; and

(5) Intentional and inappropriate use of any substance, legal or illegal, which impairs job performance.

(B) "Agency" means any office, department, commission, board, institution or facility in the executive branch of government.

(C) "Alcohol" means ethyl alcohol or ethanol.

(D) "Applicant testing" means drug testing of final applicants for positions in state service who have tentatively met all relevant employment criteria but have not been officially offered employment with the state.

(E) "Appointing authority" means the officer, commission, board, or body having the power of appointment to, or removal from, positions in any office, department, commission, board, institution, or facility.

(F) "Chain of custody" means procedures to ensure the integrity of each specimen for drug testing by tracking its storage from point of collection to final disposition.

(G) "Collection site" means a place designated by the director of the department of administrative services where individuals present themselves for the purpose of providing a specimen to be analyzed for the presence of drugs.

(H) "Confirmation test" means a drug test on a specimen to substantiate the results of a prior drug test on the specimen. The confirmation test must use an alternate method of equal or greater sensitivity than that used in the previous or initial drug test.

(I) "Drug" means:

(1) Any drug which, under the Federal Food, Drug and Cosmetic Act, federal narcotic law, sections 3715.01 to 3715.72 , or Chapter 3719. of the Revised Code, may be dispensed only upon a prescription;

(2) Any drug which contains a schedule v controlled substance and which is exempt from Chapter 3719. of the Revised Code, or to which such chapter does not apply; or

(3) Any other substance defined in section 4729.02 of the Revised Code.

(J) "Controlled substance" means those substances defined in sections 3719.01 and 3719.41 of the Revised Code.

(K) ["]Drug program coordinator" means the person responsible for implementing, directing and managing the drug-free workplace program within the agency. The drug program coordinator serves as the agency's principal contact with the testing laboratory and maintains the effective operation of the drug-free workplace program within the agency.

(L) "Drug test" means a chemical test administered for the purpose of determining the presence or absence of a drug or metabolites in a person's bodily fluids.

(M) "Employee" means any person holding a position subject to appointment, removal, promotion, or reduction by an appointing officer who is paid by warrant of the director of budget and management.

(N) "Follow-up test" means a drug and/or alcohol test for employees referred through administrative channels to a counseling or rehabilitation program such as those recommended by or associated with the employee assistance program. Such employees shall undergo follow-up testing for a time and frequency stipulated by the administrator of the drug-free workplace services program, or as stipulated by the appropriate collective bargaining agreement for the employee. Such testing is distinct from testing which may be imposed as a component of the counseling or rehabilitation program itself.

(O) "Illegal drug" means any substance other than alcohol, having psychological and/or physiological effects on a human being that is not a prescription or non-prescription medication, including controlled dangerous substances and controlled substance analogs of volatile substances which produce the psychological and/or physiological effects of a controlled dangerous substance through deliberate inhalation.

(P) "Initial test" means a drug test to determine the presence or absence of drugs or their metabolites in specimens.

(Q) "Laboratory" means a facility having certification, staff, equipment and personnel required by the director of the department of administrative services or applicable federal regulations to perform urine testing for drugs or breath testing for alcohol for employees of any office, department, commission, board, institution or facility in the executive branch of state government.

(R) "Medical review officer" means a person who is a licensed physician or other professional delineated in federal regulations with knowledge of substance abuse disorders and the appropriate medical training to interpret and evaluate all positive test results together with a person's medical history and other relevant biomedical information.

(S) "Drug-free workplace services program" means a program administered by an agency of Ohio state government designated by the governor to implement Ohio's drug-free workplace programs and to administer and coordinate Ohio's compliance with provisions of the federal Drug-Free Workplace Act of 1988, the Omnibus Transportation Employee Testing Act of 1991, and any other federal or state laws or regulations requiring substance abuse testing.

(T) "Positive test result" means a test result that was positive on an initial FDA-approved immunoassay test, confirmed by a gas chromatography/mass spectrometry assay (or other confirmatory test(s) meeting national institute on drug abuse standards and approved by the department of administrative services), and reviewed and verified by a medical review officer, or a breath test for alcohol administered by the state patrol or a person qualified under rule 3701-53-07 of the Administrative Code which equals or exceeds a threshold level established in section 4511.19 of the Revised Code as constituting a positive test for being under the influence of alcohol.

(U) "Prescription" means a written or oral order for a controlled substance for the use of a particular person or a particular animal given by a practitioner in the course of professional practice and in accordance with the regulations promulgated by the director of the United States drug enforcement administration pursuant to the federal drug abuse control laws.

(V) "Reasonable suspicion testing" means alcohol or other drug testing based on a belief that an employee is using or has used drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things:

(1) Observable phenomena, such as direct observation of drug use and/or the physical symptoms or manifestations of being under the influence of a drug;

(2) Abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work performance which may reasonably be considered to be caused by drug abuse;

(3) A report of drug use provided by reliable and credible sources and which has been independently corroborated;

(4) Evidence that an individual has tampered with a drug test during his/her employment with the current employer;

(5) Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of alcohol and/or other drugs while working, or while on the employer's premises or operating the employer's vehicle, machinery, or equipment.

(6) The occurrence of a significant incident involving an employee's on the job actions which has resulted in the personal injury of any person, or in which expensive property damage estimated to be in excess of two thousand dollars has occurred. The personal injury situations warranting reasonable suspicion testing shall be those stipulated in the relevant collective bargaining agreements, or in the absence of any such agreement, by the director of the department of administrative services.

(W) "Specimen" means a tissue or product of the human body chemically capable of revealing the presence of drugs in the human body.

(X) "Substance" means alcohol or drugs.

(Y) "Workplace" means a state owned or utilized premise for official state business or any place where official state business is conducted.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 12/1/06

123:1-76-02 Purpose and responsibility.

The administrator of the drug-free workplace services program shall plan for, implement, administer, coordinate and evaluate Ohio's drug-free workplace policy, including any testing and education programs developed for state employees, and shall administer and coordinate Ohio's compliance with provisions of the federal Drug-Free Workplace Act of 1988, the Omnibus Transportation Employee Testing Act of 1991, and any other federal or state laws or regulations requiring substance abuse testing.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 11/10/96, 7/26/02

123:1-76-03 Alcohol testing techniques and methods.

(A) All procedures and protocols for collection and testing of an employee's breath for alcohol shall conform to the methods and procedures set forth in federal regulations, governing collective bargaining agreements or, in the absence of such regulations or agreements, by the director of the department of administrative services. The threshold concentration level for a positive test will be that established by federal regulations, governing collective bargaining agreements or, in the absence of such regulations or agreements, by the director of the department of administrative services.

(B) Test results shall be reported to the agency head, or a person officially designated by the agency head to receive information for the agency, within twenty-four hours of the receipt of the result by the drug-free workplace services program.

(C) The agency head, or a person officially designated by the agency head to provide such information, shall provide to the department of administrative services' drug-free workplace program a monthly statistical summary of all alcohol breath testing information including the number of employees tested and the results of that testing. This information shall be forwarded no later than fourteen calendar days after the end of the month covered by the summary.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 6/26/94, 7/26/02

123:1-76-04 Drug testing techniques and methods.

(A) The initial drug testing protocol for state employees and applicants for state employment shall use an assay technique which meets federal department of health and human services requirements. Drug classes and cutoff levels be those established by the federal department of health and human services

(B) Initial test methodology and test levels for other drugs shall be added to the testing protocol as deemed necessary by the director of the department of administrative services or as required by federal law.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 11/10/96

123:1-76-05 Collection and handling of specimens.

(A) The individual to be tested shall be instructed to report to the collection site as soon as possible after the testing order is given, but no later than thirty-two hours, or as required by federal law.

(B) The collection site person shall request the individual to present photo identification or other confirming identification. If identity cannot be established, the collection site person shall not proceed with the collection.

(C) The individual shall be asked to remove any garments which might conceal substances/items which could be used to tamper with or adulterate the urine specimen.

(D) The individual shall be instructed to wash and dry his/her hands prior to urination and shall not have access to any water or other materials which could adulterate the urine specimen.

(E) The individual shall provide the specimen in the privacy of a stall or a partitioned area that allows for individual privacy.

(F) The collection site person shall receive the specimen measure its temperature and color and visually inspect for contaminants.

(G) The specimen shall be sealed and labeled in the presence of both the individual and the collection site person. The labels shall contain the date, the individual's specimen number and any other identifying information provided or required by the department of administrative services.

(H) The individual tested shall initial the I.D. label on the specimen certifying that it is the specimen collected from him/her.

(I) The collection site person shall enter into the record book all information identifying the specimen and shall sign the book.

(J) The individual tested shall sign the statement in the record book certifying that the specimen is, in fact, the specimen he/she provided.

(K) The collection site person shall complete the chain of custody form and ship the specimen to the testing laboratory in a sealed, secure container.

(L) The laboratory shall use the chain of custody procedures to maintain control and accountability of all specimens from receipt through completion of testing. The date and purpose shall be documented on an appropriate chain of custody form each time a specimen is handled and transferred.

(M) Laboratory personnel shall inspect each specimen package for evidence of tampering, etc.

(N) Specimens shall be tested by grouping them into batches, with each batch containing an appropriate number of standards for calibrating the instrumentation and a minimum of ten percent controls or as stipulated by federal department of health and human services regulations and guidelines.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/19/92, 11/10/06, 7/26/02

123:1-76-06 Confirmatory testing.

(A) All specimens identified as positive on the initial test shall be confirmed using gas chromatography/mass spectrometry (GC/MS) techniques or any other procedure(s) required by federal law.

The cutoff levels shall be those established by the federal department of health and human services.

Confirmatory test methods and testing levels for other drugs meeting certification criteria of the federal department of health and human services shall be added to the testing protocol as deemed necessary by the director of the department of administrative services or as required by federal law.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 11/10/96

123:1-76-07 Reporting of test results.

(A) The laboratory shall report test results to the agency head or the person designated by the agency head to receive test results. All test results shall be certified as accurate by the responsible person at the laboratory. Results may not be transmitted by telephone, but transmission by other electronic means (computer, teleprinter or facsimile) shall be permissible. All specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. Only specimens confirmed positive shall be reported positive for a specific drug or drugs.

(B) The medical review officer may, at his/her discretion, request that the laboratory provide quantitation of test results. The medical review officer will not normally report quantitation of test results, but will only report whether the test was positive or negative unless prior written approval to provide other information is authorized by federal regulations or, if none apply, by the director of the department of administrative services.

(C) Each agency shall provide to the administrator of the drug-free workplace services program a statistical summary of drug testing information, and any other documentation pertaining to the testing process upon request or as required by federal law.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 11/10/96, 7/26/02

123:1-76-08 Records and specimen retention.

(A) All records pertaining to a given alcohol or drug test shall be maintained as required by federal law.

(B) All positive urine specimens shall be retained in frozen storage as required by federal law to permit any authorized retest.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 11/10/96

123:1-76-09 Applicant testing.

(A) Every vacancy announcement for testing designated positions for the state service shall state: "All final applicants tentatively selected for this position will be required to submit to urinalysis to test for illegal drug use prior to appointments. An applicant with a positive test shall not be offered employment."

(B) Each applicant shall be notified that appointment to the position will be contingent upon a negative test result. Failure of the vacancy announcement to contain this statement shall not preclude applicant testing if advance written notice is provided applicants in some other manner.

(C) The agency drug program coordinator or other designated agency person shall direct applicants to the appropriate collection site. The test must be undertaken as soon after notification as possible, and no later than thirty-two hours after notice to the applicant.

(D) Applicants shall be advised of the opportunity to offer an explanation or submit medical documentation of legally prescribed medications which may explain a positive test result to the medical review officer. Such information will be reviewed only by the medical review officer in his/her determination of the validity of a positive confirmatory test result.

(E) Any agency of state government shall decline to extend a final offer of employment to any applicant with a verified positive test result and such applicant will not be reconsidered for state employment for a period of one year.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 7/26/02

123:1-76-10 Reasonable suspicion testing.

(A) Where there is reasonable suspicion to believe that an employee, when appearing for duty or on the job, is under the influence of, or his/her job performance is impaired by, alcohol or other drugs, the employee may be required to submit a urine specimen for testing for the presence of drugs or a breath sample for testing for the presence of alcohol.

(B) Such reasonable suspicion must be based upon objective facts or specific circumstances found to exist that present a reasonable basis to believe that an employee is under the influence of, or is using or abusing, alcohol and/or other drugs. Examples of reasonable suspicion shall include, but need not be limited to, slurred speech, disorientation, and abnormal conduct or behavior.

(C) Reasonable suspicion must be documented in writing according to procedures prescribed in applicable federal regulations, any applicable collective bargaining agreement covering the employee or, in the absence of any such regulations or agreement, by procedures developed by the director of the department of administrative services.

(D) Reasonable suspicion testing shall also include incident-based accident or unsafe practice testing wherein employees involved in on-the-job accidents or who engage in unsafe on-duty job-related activities that pose a danger to themselves, to others, or the overall operation of the agency may be subject to testing. Such incident-based reasonable suspicion testing shall be for conditions and situations and according to procedures prescribed by applicable collective bargaining agreements covering the employee or, in the absence of any such agreement, according to conditions and procedures developed by the director of the department of administrative services. Employees subject to federal testing procedures will submit to federal post-accident testing as required by federal regulations.

(E) The employee shall be asked to provide the urine sample or submit to a breath test for alcohol in accordance with criteria delineated in the applicable collective bargaining agreement for the employee or, in the absence of any such agreement, according to criteria developed by the director of the department of administrative services or as required by federal regulations.

(F) Supervisors and managers shall be trained to address the abuse of alcohol or other drugs by employees, to recognize facts that give rise to reasonable suspicion, and the proper procedures for documenting facts and circumstances to support a finding of reasonable suspicion as required by collective bargaining agreements or, in the absence of any such agreements, by the director of the department of administrative services. Failure to receive such training shall not, however, invalidate otherwise proper reasonable suspicion testing.

(G) Employees shall be given the opportunity as required by applicable collective bargaining agreements or, in the absence of such agreements, as stipulated by the director of the department of administrative services to offer an explanation or submit medical documentation of legally prescribed medications or exposure to toxic substances which may explain a positive test result. Such information shall be reviewed only by the medical review officer in his/her determination of the validity of a positive confirmatory test and shall be released to the employer only to explain a test result.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 7/26/02

123:1-76-11 Finding of employee drug use and disciplinary consequences.

(A) An employee may be found to use illegal drugs on the basis of any appropriate evidence including, but not limited to:

(1) Direct observation;

(2) Evidence obtained from a workplace-related arrest or criminal conviction;

(3) A verified positive test result; or,

(4) An employee's voluntary admission.

(B) On the first occasion in which an employee has a confirmed positive alcohol or other drug test resulting from reasonable suspicion testing, the employee may be required to enroll in and successfully complete a substance abuse program certified by the Ohio department of mental health and addiction services.

(C) Disciplinary action taken against an employee found to use illegal drugs may include the full range of disciplinary actions, including removal. The severity of the action chosen will depend on the circumstances of each case and the requirements of any governing collective bargaining agreements and employing agency work rules, policies and procedures.

(D) Any employee who refuses to submit to a properly ordered drug test shall be subject to disciplinary actions as stipulated in the governing collective bargaining agreement or, in the absence of any such agreement, the relevant agency work rules, policies and procedures.

(E) Attempts by an employee to alter or substitute the specimen provided for drug testing shall be deemed a refusal to take the drug test when required and shall subject the employee to the same disciplinary actions as required for refusing to submit to a properly ordered test.

Effective: 10/06/2013
R.C. 119.032 review dates: 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92

123:1-76-12 Disciplinary action; federal drug-free workplace act of 1988.

As required by the Federal Drug-Free workplace Act of 1988, each employee in an agency receiving federal grant funds shall be required to notify his/her agency head or the agency head's designee, within five calendar days after he/she is convicted of a violation of any federal or state criminal drug statute, provided such conviction occurred at the workplace or any location where the employee is working at the time of the incident which led to the conviction. Each agency shall be required to notify any federal agency with which it has a contract or grant, within ten calendar days after receiving notice from the employee, of the fact of such conviction. Any employee's failure to report such a conviction will subject such employee to disciplinary action, up to and including termination. An agency head or his/her designee may send the employee to the employee assistance program for referral and treatment, or may take appropriate personnel action against such an employee, up to and including termination. Whatever the case, such action shall be taken within thirty calendar days of the employer's notification of the employee's conviction.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92

123:1-76-13 Appeal of drug test results.

(A) Employees who have a positive drug test result may ask for a retest of the original specimen according to procedures and specifications of applicable federal regulations, or in the absence of such regulations, any governing collective bargaining agreement or, in the absence of such agreement, according to procedures and specifications of the director of the department of administrative services. The laboratory performing such a retest shall be certified by the federal department of health and human services.

(B) Any such retest shall be at the expense of the employee.

(C) An employee request for a retest shall not delay the imposition of appropriate disciplinary action or referral to an alcohol and/or drug abuse rehabilitation program.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 7/26/02

123:1-76-14 Drug-free workplace training/education.

(A) The administrator of the drug-free workplace services program shall provide, or arrange to have provided, information and training programs concerning the impact of alcohol and other drug abuse on job performance, as well as information concerning the employee assistance program and any other resources available for employee assistance in dealing with a substance abuse program.

(B) All bargaining unit and new employees within bargaining units shall be furnished a copy of the state's drug-free workplace policy and drug testing procedures as specified by their respective collective bargaining agreements or as required by federal law.

(C) All other employees subject to the state drug-free workplace policy and drug testing procedures shall be furnished a copy of such document and such procedures as required by the director of the department of administrative services or as required by federal law.

(D) The drug-free workplace services program shall develop and implement, or arrange to have implemented, a training and education program for supervisors and managers to provide knowledge and skills essential for their recognizing and addressing alcohol and other drug abuse among agency employees and to facilitate their participation in the implementation and administration of drug testing and other drug-free workplace programs within the agency in which they work.

(E) Each agency shall be required to document to the administrator of the drug-free workplace services program that it has distributed copies of the Drug-Free Workplace Policy, including any drug testing procedures stipulated by collective bargaining agreements and agency rules deriving from such agreements, to all employees. All employees shall sign an acknowledgment that they have read and understand the policy and work rules pertaining to it. This acknowledgement shall be kept in the employees' file. Agencies shall review the policy annually with employees and distribute the policy and applicable work rules to all new employees within thirty calendar days of their initial employment by the state, or within the time specified by the applicable collective bargaining agreement.

R.C. 119.032 review dates: 01/31/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.09 , 124.34
Prior Effective Dates: 6/14/92, 11/10/96