MCC.1.6.250 Drug and Alcohol Testing Procedures [Suspended]

All Elected Officials are subject to drug and alcohol testing, including reasonable suspicion, return-to-duty, and random drug testing. Drug tests require laboratory testing as provided by the Mandatory guidelines for Federal Workplace Drug Testing Programs pursuant to 94 FR 28101, May 15, 2015 as amended, as minimum standards for the following five classes of drug and correlative cutoff concentrations: Marijuana; Cocaine; Opiates including opium and codeine derivatives such as Oxycodone, Oxymorphone, Hydrocodone, Hydromorphone; Amphetamines and Methamphetamines including Methylenedioxyamphetamine (MDA) and Methylenedioxyethylamphetamine (MDEA); Phencyclidine (PCP). Elected Official are encouraged to contact the Human Resource Director, or designee, with any questions regarding drug and alcohol testing. Failure or refusal of an Elected Official to participate in an Tribal Governing Board-directed drug test shall be considered as having failed to carry out his or her official duties and the Elected Official may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(a) General Drug and Alcohol Testing Procedures. In cases where an Elected Official is required to undergo testing for the presence of alcohol or drugs including reasonable suspicion, return-to-duty, and random drug testing, the following procedures shall apply:

(1) LCO-CHC using a licensed laboratory of the LCO-CHC choice that conducts substance abuse testing that is deemed appropriate by the Tribal Governing Board for business purposes; i.e., screening and confirmatory testing, will take a sufficient sample to assure that confirmation testing can occur in the event of an initial positive test result. The initial cost for this testing will be incurred by the Tribe.

(2) The laboratory evaluation of the samples will be carried out by a laboratory that is contracted with the LCO-CHC and is certified by either the College of American Pathologists or the National Institute on Drug Abuse.

(3) In the event of a positive test result, a confirmation test will be performed by a laboratory specified in Section MCC.1.6.250(a)(2) above, using the original sample (not a new sample). The confirmation test will be based on a different analytical method of higher analytical certainty.

(4) The Elected Official within two (2) working days of the results must request any further confirmation testing (using the original sample) by a laboratory specified in subs. 1(a) above, in writing. Costs of confirmation testing incurred will be paid by the Elected Official.

(5) The results of any drug or alcohol tests shall be kept confidential, except information shall be shared with the Tribal Governing Board as deemed necessary. All policies regarding Elected Official personnel records shall be strictly adhered to and followed in accordance with the provisions of this ordinance.

(6) A portable breath test (PBT) conducted by a Class 1 PBT Certified person of the LCO-CHC choice that is deemed appropriate by the Tribal Governing Board for business purposes shall be utilized for alcohol testing.

(b) Probable Cause Testing Procedures.

(1) Upon a finding by the Tribal Governing Board that there is probable cause that an Elected Official is either under the influence of alcohol (under the influence shall mean a blood alcohol concentration of 0.02 grams of alcohol per 100 milliliters of a person's blood or while the person has 0.02 grams of alcohol per 210 liters of a person's breath) or drug abuse that is impairing the employee's ability to carry out job-related activities, the Elected Official shall be required to be tested for the presence of drugs or alcohol pursuant to Section MCC.1.6.250(b)(3), below. A finding of probable cause and directive requiring the Elected Official to submit to testing for drugs or alcohol must be in writing signed by the a member of the Tribal Governing Board. The probable cause finding must be supported by evidence of specific, personal observations concerning performance of official duties, appearance, behavior, speech, or bodily odors of the Elected Official. If hearsay information is received, such information must be corroborated by personal observations, or observations and evaluation by the Tribal Governing Board.

(2) Once the Tribal Governing Board has determined that probable cause pursuant to Section MCC.1.6.250(b)(1), above exists, the Tribal Governing Board shall immediately contact the Human Resource Director, or designee and convey that an Elected Official is under the influence of alcohol or a controlled substance and that such influence is impairing the Elected Official's ability to carry out his or her official duties.

(3) Upon receiving contact from the Tribal Governing Board, the Human Resource Director, or designee shall have the Elected Official drug tested and if alcohol related have the Elected Official submit to a portable breath test (PBT) conducted by a Class 1 PBT Certified person as specified in Section MCC.1.6.250(a)(6), above. If the Elected Official refuses to take a test (including but not limited to a drug test, drug urine test, or PBT test) after being requested to do so, the Elected Official shall be considered as having failed to carry out his or her official duties and the Elected Official may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(4) Upon receipt of a positive test result, the Elected Official shall be immediately relieved of their duty station and shall be considered to having failed to carry out his or her official duties and may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and the positive test sample will be sent for a confirmation test result pursuant to Section MCC.1.6.250(a) above. Upon receipt of a positive confirmation test result pursuant to Section MCC.1.6.250(a) above, the Elected Official shall be referred by the Human Resource Director, or designee to participate in the Employee Assistance Program pursuant to Section MCC.1.6.210(b) of this ordinance. Failure to comply and successfully complete an approved LCOCHC- Behavioral Health EAP treatment plan within the timeframe established in the treatment plan shall be construed as the Elected Official having failed to carry out his or her official duties and the Elected Official may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(1) All Elected Officials shall be included in the Tribe's Preventive Testing Program (Random Testing). Preventive Testing shall be conducted at unscheduled and unannounced times. If an Elected Official is participating in the EAP they may be exempt from Section MCC.1.6.250(e), below, if a subsequent violation is a result of their initial EAP referral.

(2) Method of Conducting Preventive Testing.

(A) A non-biased selection procedure will be used to assure equitable distribution in the selection process.

(B) The randomly generated list of individuals to be tested will be kept on file for 2-years.

(3) Elected Officials who are selected for preventative testing and refuse to take a test shall be construed as the Elected Official having failed to carry out his or her official duties and the Elected Official may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians. An Elected Official has up to three (3) hours to provide a sample and may not leave the property. Consideration for extending the timeframe will be afforded the Elected Official if the Elected Official is cooperating, i.e. drinking water or other fluids. An Elected Official who fails to provide a sample within the allotted or extended timeframe shall be construed as the Elected Official having failed to carry out his or her official duties and the Elected Official may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(4) If an Elected Official that is selected for preventative testing is on travel, PTO, or other leave, the Elected Official shall be notified upon their return to their office to comply with the preventative testing procedure pursuant to Section MCC.1.6.250(c)(3), above.

(5) Upon receipt of a positive test result, the Elected Official shall be immediately relieved of their duty station and shall be considered to having failed to carry out his or her official duties and may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and the positive test sample will be sent for a confirmation test result pursuant to Section MCC.1.6.250(a) above.

(d) Return to Duty Procedures. An Elected Official returning to duty following a chemical dependency related leave of absence must receive a release by a licensed physician stating that the reasons for the Elected Official being placed on leave have been resolved.

(e) Discipline for Drug Testing Violation. In all cases, an Elected Official may face legal consequences for his/her actions.

(1) Any Elected Official who uses (or is under the influence of) alcohol and/or drugs, possesses alcohol and/or drugs or intoxicants on Tribal property or while on duty shall be considered to having failed to carry out his or her official duties and may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(2) Any Elected Officials who refuse to take a test are thereby considered to have produced a positive test result and shall be considered to having failed to carry out his or her official duties and may be removed from office pursuant to Article III, § 7 of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(f) Re-election after Removal. Any Elected Official who has been removed from office for violation of the Tribe's Drug-Free Workplace Policy may be eligible for re-election upon proof of rehabilitation provided by an accredited treatment facility that the person has been to treatment or has successfully completed appropriate treatment and is in recovery.