TMHRA Annual Conference May 3-5, 2017 Annual Conference May 3-5, 2017 1 ... Advanced Climber/Trimmer-Trainee ... Driller/Explosives Handler

TMHRA

Annual Conference

May 3-5, 2017

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©Lynn, Ross & Gannaway, LLP 2017

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DRUG TESTING SAFETY SENSITIVE POSITIONS and OTHER

CONSIDERATIONS

Presented by:

Julia Gannaway LYNN, ROSS & GANNAWAY, LLP

817.332.8512 [email protected]

Avoid employing/hiring illegal drug users, decrease likelihood of impaired employees in workplace and deterrence

Permissible under Texas Labor Code §21.120

Cities must adopt a written policy before drug testing any employee

Policy should be approved by your city attorney

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PUBLIC EMPLOYERS


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PUBLIC EMPLOYERS


Drug tests are a “search” under 4th Amendment

– Must balance individual’s right against the

government employer’s legitimate interest in

maintaining a drug-free workplace

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PUBLIC EMPLOYERS


Permissible drug testing

Random/suspicionless

Post-Accident

Reasonable suspicion

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PUBLIC EMPLOYERS


“Strict scrutiny” means that the government employer must have a “compelling reason” to conduct the drug tests on a random/suspicionless basis

Must be able articulate the compelling reason

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Random/Suspicionless- Strictest Scrutiny


“Special Need” and/or “Safety-Sensitive”/ “Security-Sensitive”

Skinner v. Railway Labor Executives ' Ass 'n, 489 U.S. 602, 618 (1989)

Nat 'l Treas. Emps. Union v. Von Raab, 489 U.S. 656 (1989)

Employers must carefully analyze each position that is being drug tested to determine if it is “safety-sensitive” before continuing to randomly drug test employees

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Random/Suspicionless testing only permitted when:


Skinner: "fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences."

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What is “Safety-Sensitive”?


“a position in which a drug impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to carry firearms, perform life threatening procedures, work with confidential information or documents pertaining to criminal investigations, or confidential juvenile information, or work with controlled substances; a position in which a drug impairment constitutes an immediate and direct threat to the employee’s health or safety; a position in which the employee is responsible for the well-being of another; or a position in which a momentary lapse in attention could result in injury or death to another person.”

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Safety-Sensitive:


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Safety sensitive position is a job or position where the employee holding this position has the responsibility for his/her own safety or other people's safety. It would be particularly dangerous if such an employee is using drugs or alcohol while on job. An employee has to be with clear mind and diligent while occupying such positions.

USLEGAL.COM


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Police Officers Firefighters

US DOT/CDL


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Lifeguard?

Recreation Superintendent?

Building Official?

Parks/Groundskeepers?

Meter Reader?

Special events coordinator?

Senior Center Supervisor?

IT Director?

Library?


WHO ELSE?

What if… Driving a City vehicle?

Working in a highly regulated area?

What if an employee is aware/expects he/she could be tested?

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Random/Suspicionless Testing


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List of Occupations Designated as High-Risk or Safety-Sensitive by The Labor

Commissioner Of

The State Of Connecticut


The following is a list of occupations designated as high risk or safety sensitive by the Labor Commissioner as a result of specific request received on behalf of individual employers. This list may serve only as a guide for the Commissioner in future investigations and determinations made pursuant to the regulations. Employers may institute random urinalysis drug testing only after their individual request has received written

approval from the Commissioner.

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HIGH-RISK OCCUPATIONS Advanced Climber/Trimmer-Trainee (Power Line Clearance) Advanced Life Support Technicians Aerial Construction Supervisor Air Pollution Engineer Aircraft Mechanic Airframe and Powerplant Technician Assembler/Packager (Pharmaceutical Manufacturing) Assembly Technician (Power Generation Plant) Assistant Plant Operator (Power Generations) Assistant Utility Operator (Plant Generations) Avionics Technician Back Piler Operator (Terminal Operations) Beta Field Engineer Blender Blasters Boilermaker (Elevated Construction) Boilermaker/Pipefitter/Plumber/Welder (Elevated Construction) Branch Managers (Compressed Gas) Bricklayers (Bridge, Tunnel and Elevated Highway Construction) Bulldozer Operator (Terminal Operations) Bus Driver Bus Monitor/Aide Camp Counselors (First Aid/CPR Certified) Carpenters (Elevated Concrete Form Work) Carpenter (Elevated Construction) Carpenters and Joiners (Bridge, Tunnel and Elevated Highway Construction) Carriers (Terminal Operations) Caulking Specialist (High-Rise/Elevated) Chauffer Checker (Terminal Operations) Chemical Compounding Manager/Supervisor/Personnel (Pharmaceutical Manufacturing) Chemical Lab Technician/Assistant (Pharmaceutical Manufacturing) Chemical Operator (Hazardous Materials) Chemical Processors (Surgical Sponge Manufacturing) Chemist (Hazardous Waste Materials) Chemist/Hazardous Waste Handler/Manager Chief Chemist (Pharmaceutical Manufacturing) Climber/Trimmer-Trainee (Power Line Clearance) Clinical Assistant Clinicians (Social Workers, Therapists, and Psychologists) Coax Splicer Compressed Gas Delivery Personnel Construction Engineer (Elevated Construction) Construction Splicer (Television Cable) Consultant Pharmacist Container Management Worker (Hazardous Waste Materials) Corporate Industrial Hygienist (Chemical/Mining Facilities) Corporate Security Personnel (Executive Protection) Counseling Assistant Crane Operator Crane Operator (Power Generations) Crane Operator (Prestress concrete) Crew Chief (Armored Car) Crew Leader (Power Line Clearance) Cryogenic Repair/Installation Associates Cylinder Shot Blasting Operators Deburrer Director, Environmental Health & Safety (Power Generations) Director of Field Services (Power Generation Plant) Director of IV Services Director of Operations (EMS) Director of Operations (Power Generation Plant) Director of Safety & Compliance (Power Generation Plant) Dispatcher (Ambulance & Handicapped Services Vehicle) Dispatcher (Petroleum Products) Dispatcher/Forklift Operator (Prestress Concrete) Disposing Operator (Water Treatment Plant/Flammable, Hazardous Liquid) Distillation Chemists District Field Operations Supervisor (Explosives) Divers (Bridge, Tunnel and Elevated Highway Construction) Diving Tenders (Bridge, Tunnel and Elevated Highway Construction) Dock/Yardworker (Petroleum Products) Driller/Explosives Handler Driller/Explosives Technician Driver/Explosives Handler Driver/Guard (Armored Car) Drivers of School Buses and/or Student Transportation Vehicles Drop Swapper (Television Cable) Drum Laborer E & I Technician (Power Generations) Electrician (Elevated Construction) Electronics Service Technician Emergency Medical Technician Emergency Medical Technician Intermediate (EMT-I) Emission Measurements Technician Engineer (Hazardous Waste Site) Environmental Scientist (Hazardous Waste/Petroleum Products) Equipment/Forklift Operators Executive Chauffeur Executive Director (EMS) Expediter Facility Maintenance Team Member Facility Safety Specialist Fiber Optic Observer Fiber Splicer Field Engineer (Elevated Construction) Field Laborer (Power Generation Plant) Field Logistics Manager (Power Generation Plant) Field Operations Manager (Explosives) Field Project Supervisor (Power Generation Plant) Field Service Representative (Fuel Station Monitoring) Field Technician (Hazardous Waste/Petroleum Products) Field Technician (Hazardous Waste Site) Field Test Engineers (Off-Shore Drilling) Field Welder (Power Generation Plant) Filling Manager/Supervisor (Pharmaceutical Manufacturing) Finisher (Prestress Concrete) Fireplace Installer Fire Sprinkler Technician (Elevated Construction) Flagman Fleet Engineer (EMS) Flight Attendant Flight Officer Floaters (Surgical Sponge Manufacturing) Foreman Forklift Operator Forklift Operator (Terminal Operations) Forklift Operator (Hazardous Materials) FPI/X-ray Furnace Operator Garage Mechanics (Terminal Operations) Gemko/PK Operator General Laborer (Terminal Operations) General Maintenance Personnel General Warehouse Groundperson (Power Line Clearance) Group Leaders (Surgical Sponge Manufacturing) Guard/Fireman Gutter Installer HVAC Service Technician Handlers and Users of Radioactive Sources Hardware Technician Health & Safety Officer (Hazardous Waste Site) Heavy Equipment Operators (Elevated Construction) Hold Operator of Forklift (Terminal Operations) Hydrogeologist (Hazardous Waste Site) Hydro Test Operator Inspector Inspector (Crane) Inspector (Elevated Construction) Inspectors (Surgical Sponge Manufacturing) Installation Representative/Manager (Fuel Station Monitoring) Installation/Repair Technician (Television Cable) Installer (Television Cable) Insulation Installer Insulator Insulator (Elevated Construction) Inventory Assistant Team Leader Inventory Control Team Leader Inventory Control Team Member Iron Workers (Bridge, Tunnel and Elevated Construction) Ironworker (Rebar & Structural) IV Nurse IV Pharmacist IV Pharmacy Technician Lab Manager Lab Manager (Pharmaceutical Manufacturing) Lab Technicians Laboratory Director (Hazardous Waste Materials) Laborer (Power Generations) Laborer (Power Line Clearance) Laborer (Road Crack and Joint Repair) Laborers (Bridge, Tunnel and Elevated Highway Construction) Laborers (Elevated Concrete Form Work) Lathe Operators Lead Assembly Technician (Power Generation Plant) Lead Installation/Line Technician (Television Cable) Lead Laborer (Power Generations) Lead Technician (Fuel Station Monitoring) Leadman (Prestress Concrete) Leakage Technician (Television Cable) Licensed Operator (Waste Water Treatment Plant) Licensed Practical Nurses Light Duty Wrecker Operator Limousine Driver Lineman Line Technician (Television Cable) Loader/Unloader Location Manager (Petroleum or Petrochemical Laboratory) Longshoreman (Terminal Operations) Machine Operators (Surgical Sponge Manufacturing) Machine Setup Mechanic (Plastic Products Manufacturing) Machinist (Pharmaceutical Manufacturing) Machinist (Plastic Products Manufacturing) Maintaining revenue service vehicles or equipment used in revenue service Maintenance Electrician/Steamfitter Maintenance Electrician/Steamfitter (Elevated Construction) Maintenance Manager (Power Generations) Maintenance Mechanic Helpers (Terminal Operations) Maintenance Mechanic Maintenance Mechanics (Terminal Operations) Maintenance Mechanics, Lead 1st & 2nd class (Power Generations) Maintenance Person/Forklift Operator (Prestress Concrete) Maintenance Personnel (Pharmaceutical Manufacturing) Maintenance Supervisor Maintenance Supervisor (Power Generations) Maintenance Worker (Hazardous Waste Materials) Manager, Technical & Field Service (Fuel Station Monitoring) Marine Terminal Operator (Petroleum Products) Masons (Elevated Concrete Form Work) Material Handler Material Handler (Pharmaceutical Manufacturing) Material Handler/Forklift Operator (Plastic Products Manufacturing) Mechanic Mechanics (Heating, Elevated Construction) Mechanics (Placarded Vehicles Carrying Hazardous Materials) Mechanics (School Buses and/or Student Transportation Vehicles) Milling Machinists Millwright Millwright (Elevated Construction) Mobile Equipment Operator (Power Generations) Operating Engineer Operating Engineers (Bridge, Tunnel and Elevated Highway Construction) Operating Engineer (Cranes/Heavy Equipment/Piledriver/Forklifts) Operation of a revenue service vehicle, whether or not such vehicle is in revenue service. Operations Manager (Armored Car) Operations Manager (EMS) Operations Manager (Power Generations) Operations Superintendent (Power Generations) Operations Technician (Fuel Station Monitoring) Operator of Medi-Van Operators of Handicapped Services Vehicles Overhead Crane Operator (10 ton and over) Packagers (Surgical Sponge Manufacturing) Packer/Forklift Operator (Plastic Products Manufacturing) Painters (Elevated Construction) Painters (Elevated Structure) Pallet Jack Operator Paramedic Payload Operator (Terminal Operations) Petroleum/Chemical Inspector Petroleum or Petrochemical Laboratory Manager Pharmaceutical Clinical Quality Assurance Rep Pharmaceutical Data Entry Technician/Supervisor Pharmaceutical Medical Records Technician Pharmaceutical Picking/Packaging/Manager/Supevisor Pharmaceutical Picking Technician Pharmaceutical Production Manager Pharmaceutical Purchasing Staff/Manager Pharmaceutical Returns/Pyxis Technician Pharmacist Pharmacy Technician Physicians Physician Assistants Pick Up Gear (Terminal Operations) Pile Drivers (Bridge, Tunnel and Elevated Highway Construction) Pilot Pipefitter Plant Associates (Compressed Gas) Plant Foreman (Petroleum Products) Plantman (Petroleum Products) Plant Manager Plant Manager (Compressed Gas) Plant Manager (Petroleum Products) Plant Manager (Power Generations) Plant Operator (Petroleum Products) Plant Operator (Power Generations) Plant Superintendent (Petroleum Products) Plant Supervisor (Petroleum Products) Plant Technician Plasma Sprayer Plater Plumbers/Pipefitters (Elevated Construction) Pre-Wire (Television Cable) Processing Supervisor (Hazardous Waste Materials) Production Chemists Production Supervisors/Managers Project Engineer (Power Generation Plant) Project Manager (Elevated Construction) Propane Service Technician Pumpers Quality Assurance Manager (Pharmaceutical Manufacturing) Quality Control Chemists Quality Control Inspector (Aircraft) Quality Control Inspector (Prestress Concrete) Quality Control Lab Technician (Prestress Concrete) Quality Control-Laboratory (Pharmaceutical Manufacturing) Quality Control-Production Inspector (Pharmaceutical Manufacturing) Quality Control Supervisor Quality Control Team Member/Produce Inspector Quality Monitors (Surgical Sponge Manufacturing) Registered Nurse/Nurse Practitioner Registered Nurses Remedial Service, Technician (Hazardous Waste Materials) Repair Personnel of Ambulance and Handicapped Services Vehicles Research & Development Chemist Residential House Parent Riggers of Containment Cables Safety Manager (Elevated Construction) Safety Officer (Armored Car) Sanitation Assistant Team Leader Sanitation Team Leader Sanitation Team Member Sailing Instructor Sales Representative/Demonstrator (Heavy Equipment) Sales Representative (Crane) Security Guard/Safety Selector/Forklift Operator Senior Projects Manager (Fuel Station Monitoring) Senior Technician (Television Cable) Service Manager (Cranes) Service Technician (Cranes) Service Technician (Industrial Chimney/Air Duct and Boiler Systems) Service Technician (Television Cable) Set-up/Filling (Pharmaceutical Manufacturing) Shift Supervisor (Power Generations) Shipper/Warehouseman/Yardman Shipping Receiving (Pharmaceutical Manufacturing) Shop Laborer (Power Generation Plant) Shore Crane Operator (Terminal Operations) Shuttle Driver Signalman (Terminal Operations) Site Clean-up Crews (Hazardous Waste) Sorters Sprinkler Apprentice Sprinkler Mechanic Staff Scientist (Hazardous Waste Site) Stripper (Chemical) Supervisor (Ambulance & Handicapped Services Vehicle) Supervisor (Prestress concrete) Supervisor of Professional Services (EMS) Tallying Employees (Terminal Operations) Teacher Teacher Aide Teamsters Technical/Marketing Representative (Explosives) Terminal Foreman (Petroleum Products) Terminal Supervisor (Petroleum Products) Thermal Sprayers/Gritblasters (Metalizing Operations) Toolmaker Top Climber/Top Trimmer (Power Line Clearance) Traffic Manager (Pharmaceutical Manufacturing) Trainer/Forklift Transfer Station Operator (Power Generations) Truck Driver (Hazardous Waste Materials) Truck Driver (LP Gas, Gasoline, Combustible Fuel) Truck Driver (Petroleum Products) Truck Driver (Road Crack and Joint Repair) Truck Drivers (Bridge, Tunnel and Elevated Highway Construction) Truck Drivers Helpers (Bridge, Tunnel and Elevated Highway Construction) Truck Loaders Truckloading Dock Operator of Forklift (Terminal Operations) Underground Construction Supervisor Underground Utility Locate Technician Utility Man Utility Operator (Power Generations) VTL Machinist Van Driver (Revenue Service) Vanlube/Bridge Operator Vault Personnel (Armed) Warehouse Maintenance & Utility Persons (Hazardous Materials) Warehouse/Shipping Clerks Wastewater Treatment Manager Wastewater Treatment Operator Waterproofing Installer Welder/Fabricators Welder (Elevated Construction) Welder (Prestress Concrete) Weld Manager (Elevated Construction) Wheel Chair Van Driver Winch Operator (Terminal Operations) Window Installer Working Foreman (Hazardous Materials) Yard Laborer Yardman (Hazardous Waste Materials)

HIGH-RISK OCCUPATIONS

Advanced Climber/Trimmer-Trainee (Power Line Clearance)

Advanced Life Support Technicians

Aerial Construction Supervisor

Air Pollution Engineer

Aircraft Mechanic

Airframe and Powerplant Technician

Assembler/Packager (Pharmaceutical Manufacturing)

Assembly Technician (Power Generation Plant)

Assistant Plant Operator (Power Generations)

Assistant Utility Operator (Plant Generations)

Avionics Technician

Back Piler Operator (Terminal Operations)

Beta Field Engineer

Blender

Blasters

Boilermaker (Elevated Construction)

Boilermaker/Pipefitter/Plumber/Welder (Elevated Construction)

Branch Managers (Compressed Gas)

Bricklayers (Bridge, Tunnel and Elevated Highway Construction)

Bulldozer Operator (Terminal Operations)

Bus Driver

Bus Monitor/Aide


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Camp Counselors (First Aid/CPR Certified) Carpenters (Elevated Concrete Form Work) Carpenter (Elevated Construction) Carpenters and Joiners (Bridge, Tunnel and

Elevated Highway Construction) Carriers (Terminal Operations) Caulking Specialist (High-Rise/Elevated) Chauffer Checker (Terminal Operations) Chemical Compounding

Manager/Supervisor/Personnel (Pharmaceutical Manufacturing)

Chemical Lab Technician/Assistant (Pharmaceutical Manufacturing)

Chemical Operator (Hazardous Materials) Chemical Processors (Surgical Sponge

Manufacturing) Chemist (Hazardous Waste Materials) Chemist/Hazardous Waste Handler/Manager Chief Chemist (Pharmaceutical Manufacturing) Climber/Trimmer-Trainee

Clinical Assistant Clinicians (Social Workers, Therapists, and

Psychologists) Coax Splicer Compressed Gas Delivery Personnel Construction Engineer (Elevated Construction) Construction Splicer (Television Cable) Consultant Pharmacist Container Management Worker (Hazardous

Waste Materials) Corporate Industrial Hygienist

(Chemical/Mining Facilities) Corporate Security Personnel (Executive

Protection) Counseling Assistant Crane Operator Crane Operator (Power Generations) Crane Operator (Prestress concrete) Crew Chief (Armored Car) Crew Leader (Power Line Clearance) Cryogenic Repair/Installation Associates Cylinder Shot Blasting Operators


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Deburrer

Director, Environmental Health & Safety (Power Generations)

Director of Field Services (Power Generation Plant)

Director of IV Services

Director of Operations (EMS)

Director of Operations (Power Generation Plant)

Director of Safety & Compliance (Power Generation Plant)

Dispatcher (Ambulance & Handicapped Services Vehicle)

Dispatcher (Petroleum Products)

Dispatcher/Forklift Operator (Prestress Concrete)

Disposing Operator (Water Treatment Plant/Flammable, Hazardous Liquid)

Distillation Chemists

District Field Operations Supervisor (Explosives)

Divers (Bridge, Tunnel and Elevated Highway Construction)

Diving Tenders (Bridge, Tunnel and Elevated Highway Construction)

Dock/Yard worker (Petroleum Products)

Driller/Explosives Handler

Driller/Explosives Technician

Driver/Explosives Handler

Driver/Guard (Armored Car)

Drivers of School Buses and/or Student Transportation Vehicles

Drop Swapper (Television Cable)

Drum Laborer


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E & I Technician (Power Generations)

Electrician (Elevated Construction)

Electronics Service Technician

Emergency Medical Technician

Emergency Medical Technician Intermediate (EMT-I)

Emission Measurements Technician

Engineer (Hazardous Waste Site)

Environmental Scientist (Hazardous Waste/Petroleum Products)

Equipment/Forklift Operators

Executive Chauffeur

Executive Director (EMS)

Expediter

Facility Maintenance Team Member

Facility Safety Specialist

Fiber Optic Observer

Fiber Splicer

Field Engineer (Elevated Construction)

Field Laborer (Power Generation Plant)

Field Logistics Manager (Power Generation Plant)

Field Operations Manager (Explosives)

Field Project Supervisor (Power Generation Plant)

Field Service Representative (Fuel Station Monitoring)

Field Technician (Hazardous Waste/Petroleum

Field Technician (Hazardous Waste Site)

Field Test Engineers (Off-Shore Drilling)

Field Welder (Power Generation Plant)

Filling Manager/Supervisor (Pharmaceutical Manufacturing)

Finisher (Prestress Concrete)

Fireplace Installer

Fire Sprinkler Technician (Elevated Construction)

Flagman

Fleet Engineer (EMS)

Flight Attendant

Flight Officer

Floaters (Surgical Sponge Manufacturing)

Foreman

Forklift Operator

Forklift Operator (Terminal Operations)

Forklift Operator (Hazardous Materials)

FPI/X-ray

Furnace Operator

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Garage Mechanics (Terminal Operations)

Gemko/PK Operator

General Laborer (Terminal Operations)

General Maintenance Personnel

General Warehouse

Groundperson (Power Line Clearance)

Group Leaders (Surgical Sponge Manufacturing)

Guard/Fireman

Gutter Installer

HVAC Service Technician

Handlers and Users of Radioactive Sources

Hardware Technician

Health & Safety Officer (Hazardous Waste Site)

Heavy Equipment Operators (Elevated Construction)

Hold Operator of Forklift (Terminal Operations)

Hydrogeologist (Hazardous Waste Site)

Hydro Test Operator

Inspector

Inspector (Crane)

Inspector (Elevated Construction)

Inspectors (Surgical Sponge Manufacturing)

Installation Representative/Manager (Fuel Station Monitoring)

Installation/Repair Technician (Television Cable)

Installer (Television Cable)

Insulation Installer

Insulator

Insulator (Elevated Construction)

Inventory Assistant Team Leader

Inventory Control Team Leader

Inventory Control Team Member

Iron Workers (Bridge, Tunnel and Elevated Construction)

Ironworker (Rebar & Structural)

IV Nurse

IV Pharmacist

IV Pharmacy Technician


Lab Manager Lab Manager (Pharmaceutical Manufacturing) Lab Technicians Laboratory Director (Hazardous Waste Materials) Laborer (Power Generations) Laborer (Power Line Clearance) Laborer (Road Crack and Joint Repair) Laborers (Bridge, Tunnel and Elevated Highway Construction) Laborers (Elevated Concrete Form Work) Lathe Operators Lead Assembly Technician (Power Generation Plant) Lead Installation/Line Technician (Television Cable) Lead Laborer (Power Generations) Lead Technician (Fuel Station Monitoring) Leadman (Prestress Concrete) Leakage Technician (Television Cable) Licensed Operator (Waste Water Treatment Plant) Licensed Practical Nurses Light Duty Wrecker Operator Limousine Driver Lineman Line Technician (Television Cable) Loader/Unloader Location Manager (Petroleum or Petrochemical Laboratory) Longshoreman (Terminal Operations) Machine Setup Mechanic (Plastic Products Manufacturing) Machinist (Pharmaceutical Manufacturing) Machinist (Plastic Products Manufacturing) Maintaining revenue service vehicles or equipment used in

revenue service Maintenance Electrician/Steamfitter

Maintenance Electrician/Steamfitter (Elevated Construction) Maintenance Manager (Power Generations) Maintenance Mechanic Helpers (Terminal Operations) Maintenance Mechanic Maintenance Mechanics (Terminal Operations) Maintenance Mechanics, Lead 1st & 2nd class (Power

Generations) Maintenance Person/Forklift Operator (Prestress Concrete) Maintenance Personnel (Pharmaceutical Manufacturing) Maintenance Supervisor Maintenance Supervisor (Power Generations) Maintenance Worker (Hazardous Waste Materials) Manager, Technical & Field Service (Fuel Station Monitoring) Marine Terminal Operator (Petroleum Products) Masons (Elevated Concrete Form Work) Material Handler Material Handler (Pharmaceutical Manufacturing) Material Handler/Forklift Operator (Plastic Products

Manufacturing) Mechanic Mechanics (Heating, Elevated Construction) Mechanics (Placarded Vehicles Carrying Hazardous Materials) Mechanics (School Buses and/or Student Transportation

Vehicles) Milling Machinists Millwright Millwright (Elevated Construction) Mobile Equipment Operator (Power Generations)

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Operating Engineer

Operating Engineers (Bridge, Tunnel and Elevated Highway Construction)

Operating Engineer (Cranes/Heavy Equipment/Piledriver/Forklifts)

Operation of a revenue service vehicle, whether or not such vehicle is in revenue service.

Operations Manager (Armored Car)

Operations Manager (EMS)

Operations Manager (Power Generations)

Operations Superintendent (Power Generations)

Operations Technician (Fuel Station Monitoring)

Operator of Medi-Van

Operators of Handicapped Services Vehicles

Overhead Crane Operator (10 ton and over)

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Packagers (Surgical Sponge Manufacturing)

Packer/Forklift Operator (Plastic Products Manufacturing)

Painters (Elevated Construction)

Painters (Elevated Structure)

Pallet Jack Operator

Paramedic

Payload Operator (Terminal Operations)

Petroleum/Chemical Inspector

Petroleum or Petrochemical Laboratory Manager

Pharmaceutical Clinical Quality Assurance Rep

Pharmaceutical Data Entry Technician/Supervisor

Pharmaceutical Medical Records Technician

Pharmaceutical Picking/Packaging/Manager/Supervisor

Pharmaceutical Picking Technician

Pharmaceutical Production Manager

Pharmaceutical Purchasing Staff/Manager

Pharmaceutical Returns/Pyxis Technician

Pharmacist

Pharmacy Technician

Physicians

Physician Assistants

Pick Up Gear (Terminal Operations)

Pile Drivers (Bridge, Tunnel and Elevated Highway Construction)

Pilot

Pipefitter

Plant Associates (Compressed Gas)

Plant Foreman (Petroleum Products)

Plantman (Petroleum Products)

Plant Manager

Plant Manager (Compressed Gas)

Plant Manager (Petroleum Products)

Plant Manager (Power Generations)

Plant Operator (Petroleum Products)

Plant Operator (Power Generations)

Plant Superintendent (Petroleum Products)

Plant Supervisor (Petroleum Products)

Plant Technician

Plasma Sprayer

Plater

Plumbers/Pipefitters (Elevated Construction)

Pre-Wire (Television Cable)

Processing Supervisor (Hazardous Waste Materials)

Production Chemists

Production Supervisors/Managers

Project Engineer (Power Generation Plant)

Project Manager (Elevated Construction)

Propane Service Technician

Pumpers



Quality Assurance Manager (Pharmaceutical Manufacturing)

Quality Control Chemists

Quality Control Inspector (Aircraft)

Quality Control Inspector (Prestress Concrete)

Quality Control Lab Technician (Prestress Concrete)

Quality Control-Laboratory (Pharmaceutical Manufacturing)

Quality Control-Production Inspector (Pharmaceutical Manufacturing)

Quality Control Supervisor

Quality Control Team Member/Produce Inspector

Quality Monitors (Surgical Sponge Manufacturing)

Registered Nurse/Nurse Practitioner

Registered Nurses

Remedial Service, Technician (Hazardous Waste Materials)

Repair Personnel of Ambulance and Handicapped Services Vehicles

Research & Development Chemist

Residential House Parent

Riggers of Containment Cables

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Safety Manager (Elevated Construction)

Safety Officer (Armored Car)

Sanitation Assistant Team Leader

Sanitation Team Leader

Sanitation Team Member

Sailing Instructor

Sales Representative/Demonstrator (Heavy Equipment)

Sales Representative (Crane)

Security Guard/Safety

Selector/Forklift Operator

Senior Projects Manager (Fuel Station Monitoring)

Senior Technician (Television Cable)

Service Manager (Cranes)

Service Technician (Cranes)

Service Technician (Industrial Chimney/Air Duct and Boiler Systems)

Service Technician (Television Cable)

Set-up/Filling (Pharmaceutical Manufacturing)

Shift Supervisor (Power Generations)

Shipper/Warehouseman/Yardman

Shipping Receiving (Pharmaceutical Manufacturing)

Shop Laborer (Power Generation Plant)

Shore Crane Operator (Terminal Operations)

Shuttle Driver

Signalman (Terminal Operations)

Site Clean-up Crews (Hazardous Waste)

Sorters

Sprinkler Apprentice

Sprinkler Mechanic

Staff Scientist (Hazardous Waste Site)

Stripper (Chemical)

Supervisor (Ambulance & Handicapped Services Vehicle)

Supervisor (Prestress concrete)

Supervisor of Professional Services (EMS)

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Tallying Employees (Terminal Operations)

Teacher

Teacher Aide

Teamsters

Technical/Marketing Representative (Explosives)

Terminal Foreman (Petroleum Products)

Terminal Supervisor (Petroleum Products)

Thermal Sprayers/Gritblasters (Metalizing Operations)

Toolmaker

Top Climber/Top Trimmer (Power Line Clearance)

Traffic Manager (Pharmaceutical Manufacturing)

Trainer/Forklift

Transfer Station Operator (Power Generations)

Truck Driver (Hazardous Waste Materials)

Truck Driver (LP Gas, Gasoline, Combustible Fuel)

Truck Driver (Petroleum Products)

Truck Driver (Road Crack and Joint Repair)

Truck Drivers (Bridge, Tunnel and Elevated Highway Construction)

Truck Drivers Helpers (Bridge, Tunnel and Elevated Highway Construction)

Truck Loaders

Truckloading Dock Operator of Forklift (Terminal Operations)

Underground Construction Supervisor

Underground Utility Locate Technician

Utility Man

Utility Operator (Power Generations)

VTL Machinist

Van Driver (Revenue Service)

Vanlube/Bridge Operator

Vault Personnel (Armed)

Warehouse Maintenance & Utility Persons (Hazardous Materials)

Warehouse/Shipping Clerks

Wastewater Treatment Manager

Wastewater Treatment Operator

Waterproofing Installer

Welder/Fabricators

Welder (Elevated Construction)

Welder (Prestress Concrete)

Weld Manager (Elevated Construction)

Wheel Chair Van Driver

Winch Operator (Terminal Operations)

Window Installer

Working Foreman (Hazardous Materials)

Yard Laborer

Yardman (Hazardous Waste Materials)

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Based on individualized, articulable observations such as:

observation of alcohol or drug use

apparent physical state of impairment

incoherent mental state

changes in personal behavior that are otherwise unexplainable

deteriorating work performance that is not attributable to other factors

evidence of possession of substances or objects which appear to be illegal or unauthorized drugs or drug paraphernalia

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Reasonable Suspicion Drug Testing


American Federation of Government Employees v. Martin, 969 F.2d 788 (9th Cir. 1992)

Reasonable suspicion could occur by demonstrating “observable phenomena, such as direct observation of drug use or possession and/or physical symptoms of being under the influence of a drug"

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Reasonable Suspicion


Actions/Conduct triggers drug test

Bailey v. City of Baytown, 78 1 F.Supp. 1210, 1216 (S.D. Tex. 1991) employee at wastewater treatment plant had diminished privacy expectation – knew that a drug-testing policy in place

Some cause or “fault” should be linked to post-accident drug test

United Teachers of New Orleans v. Orleans Parish School Ed., 142 F.3d 853 (5th Cir. 1998)

Bryant v. City of Monroe

Amer. Fed. of Gov't Empl. Local 1533, 754 F.Supp. 1409 (N.D. Cal. 1990).

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Post-Accident Drug Testing


Safety-sensitive positions? Yes

Chandler v. Miller, 520 U.S. 305 (1997)

Elected officials-do not have to pass a drug screen to run for office

Lanier v. City of Woodburn, 518 F.3d 1147, 1149 (9th Cir. 2008).

Library workers: no.

Turner v. Richmond Public Schools, et al., No. 3:16-256 (E.D.Va., March 28, 2017

Position sought: Instructional Data Specialist – tested positive for cocaine; no assertion of illegal search—only due process claims

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Drug Testing Applicants


Am. Fed 'n of State County & Mun. Employees Council 79 v. Scott, 717 F.3d 851(11th Cir. 2013)

Governor wanted to randomly drug test all employees and all conduct pre-employment drug tests for candidates.

Result: a qualified “NO”

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Drug Testing Applicants


Results of drug tests: Confidential medical information-ADA

Alcohol tests? Job-related and consistent with business necessity

(because it’s a medical test)

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Other Issues


Other Issues

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How should the drug test be conducted?

Urine?

Blood?

Breath?

Hair?

Oral?


Risk analysis

Consult with your City Attorney

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Drug Testing


306 WEST BROADWAY AVENUE FORT WORTH, TEXAS 76104

817.332.8505 MAIN/817.332.8548 FAX LABORCOUNSEL.NET

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THIS IS NOT LEGAL ADVICE, PLEASE CONTACT YOUR LABOR AND EMPLOYMENT ATTORNEY REGARDING YOUR SITUATION

Julia Gannaway

Documents

TMHRA Annual Conference May 3-5, 2017 Annual Conference May 3-5, 2017 1 ... Advanced Climber/Trimmer-Trainee ... Driller/Explosives Handler