Fayetteville Policies and Procedures  402.2 

Substance Abuse Testing and Campus Implementation of Drug-Free Workplace; Medical Marijuana

1. Background
   This campus policy implements the substance abuse-testing aspects of UA Systemwide Policies and Procedures 470.1, Background Checks and Use of Criminal Record, Financial, and Substance Abuse-Testing Information in Employment Decisions and for Volunteers with Similar Responsibilities; Training for Positions Working with Minors and Fayetteville Policies and Procedures 402.1 Background Checks and Substance Abuse Testing. This policy is also in furtherance of the objectives of the Drug-Free Workplace Act and Drug-Free Schools and Communities Act.
   State and federal statutes and regulations or unit-specific policies may provide more specific restrictions, requirements or procedures regarding employment categories. This policy does not create any procedural or substantive due process rights beyond that mandated by federal and state laws, if any, nor does it create any contract rights in any person. Furthermore, this policy is subject to all policies of the university, including, but not limited to the policies of the Board of Trustees of the University of Arkansas.
   In general, this policy is intended to promote a healthy, safe, and productive work and learning environment.
2. Definitions
   1. Pre-employment Substance Abuse Testing – A mandatory drug test required for finalists for employment in safety-sensitive and other positions designated under Fayetteville Policies and Procedures 402.1, based on job duties on a business necessity basis.
   2. Reasonable Suspicion-Based Substance Abuse Testing – A substance abuse test required when an employee’s behavior is characteristic of use of a substance that may negatively impact the performance of job duties or tasks or constitute a threat to health or safety. In making a decision to require reasonable suspicion-based substance abuse testing, the totality of the situation will be examined, taking into consideration all facts and circumstances of the employee’s behavior.  Such facts and circumstances may include but are not limited to:
      1. Odors (i.e., smell of alcohol and/or other substances, body odor or urine)
      2. Behavior/Movements, (i.e., unsteady, fidgety, unresponsive, agitated, argumentative, irrational, unusual behavior that is inconsistent with usual behavior, sleeping)
      3. Appearance (i.e., flushed complexion, bloodshot eyes, dilated pupils, constricted pupils, watery eyes)
      4. Speech (i.e., slurred, incoherent, inability to verbalize thoughts)
      5. Accidents (i.e., impaired judgment, negligence or carelessness in operating equipment or machinery, reduced response to emergency situation, disregard for safety)
   3. Periodic Substance Abuse Testing – Drug testing of employees in safety-sensitive positions designated under Fayetteville Policies and Procedures 402.1, based on job duties on a business necessity basis using a random sampling methodology.
3.  Policy
   As part of our commitment to providing a drug-free workplace, the university has established a drug testing program that consists of (1) pre-employment substance abuse testing for specified positions, (2) reasonable suspicion-based substance abuse testing, and (3) periodic substance abuse testing for specified positions. Pre-employment and periodic substance abuse testing will be performed for positions that have been designated under the Fayetteville Policies and Procedures 402.1. Reasonable suspicion-based tests will be performed on employees who are suspected of being in an impaired state while on duty. Refusal to submit to drug screening, falsification, or screening results that indicate substance abuse may be cause for termination or withdrawal of an offer for employment. Additional information about the university’s commitment to providing a drug-free workplace can be found in the campus Drug-Free Workplace Policy.
4.  Procedures
   1. Pre-Employment Substance Abuse Testing
      For safety-sensitive and other positions designated under Fayetteville Policies and Procedures 402.1, based on job duties on a business necessity basis, substance-abuse testing shall be completed prior to beginning work. When an offer of employment is extended, the potential employee must agree to submit to substance-abuse testing at a designated time and location.
      Employment will be finalized only upon receipt of a negative substance-abuse test.
   2. Reasonable Suspicion-Based Substance Abuse Testing
      Whenever an employee’s behavior is characteristic of alcohol or substance abuse, a supervisor should be immediately notified. The supervisor is responsible for assessing the situation and notifying Human Resources. Human Resources will order a reasonable suspicion-based substance-abuse test when appropriate. The behavior observed should be documented on the form appended to this policy (Attachment 1) or in a similar manner, and the documentation will be retained by Human Resources.  When practicable, more than one person observing and documenting the behavior is recommended.
      When a substance abuse test is determined to be necessary, the employee shall be temporarily relieved of their duties and given a specific time (less than two hours) to report to a testing facility. Refusal or failure to report at the specified time and place, without pre-approval of the supervisor, is sufficient cause for immediate termination for cause. Human Resources will make arrangements for reasonable suspicion-based substance abuse testing, including transportation of the employee to a testing facility if necessary.  For situations occurring outside of normal business hours, UAPD should be contacted for assistance in reaching a Human Resources representative.
      The employee will be placed on administrative leave with pay until the test results are received and evaluated.
   3. Periodic Substance-Abuse Testing
      Periodic substance abuse testing for incumbent employees may be conducted as required by law or as specifically determined to be necessary by the appropriate Vice Chancellor based on need. Positions for which periodic substance abuse testing is required for incumbents are designated under Fayetteville Policies and Procedures 402.1. Unless unit-specific policies have been reviewed and approved, when testing is to occur, the Office of Human Resources will provide a list of employees who have been randomly selected for such testing to the appropriate department head or designee. The appropriate supervisors will be notified and will inform the selected employees. The employees must report to a specified location for testing within two hours or be subject to termination. Employees who are not located on the main UA campus will report to drug testing collection sites as designated by their location.
   4. Types of Tests
      Pre-employment and periodic substance-abuse testing will generally consist of a drug screen that tests for substances including, but not limited to marijuana, cocaine, amphetamines, opiates and phencyclidine (PCP). Reasonable suspicion-based testing may include the above and/or a blood alcohol or breath testing if abuse of alcohol is suspected.
   5. Screening Results
      Any attempt to alter or substitute a specimen will be considered withdrawal of the application for employment or cause for immediate termination, even if the attempt is discovered later. Individuals may be asked to provide personal medical information to the testing facility’s Medical Review Officer (MRO) when necessary to interpret drug test results. Such information will be maintained as confidential with the Medical Review Officer.
      Refusal to submit to a test, falsification, or a test result that indicates prohibited use of drugs will be subject to future disciplinary action up to and including termination.
      All tests will be reviewed and interpreted by a Medical Review Officer (MRO). If the laboratory reports a positive test to the MRO, the MRO shall contact the individual to determine if there is an alternative explanation for the positive result, such as a permissible medical basis. If the MRO determines the result is due to a permissible medical basis, the test will be reported as negative.  Regarding medical marijuana, please see the statement below.
      The department head, in consultation with their supervisory chain, Human Resources, and other university officials as appropriate, will determine the action to be taken when an employee’s test results indicate prohibited use of drugs or alcohol. Any disciplinary action is subject to the university’s relevant grievance processes and other applicable university policies.
   6. Confidentiality and Mandatory Reporting
      Test results will remain confidential in accordance with all Federal and State laws and regulations and UA policy. Substance abuse test results will be stored separate from the employee’s personnel file and will be maintained by Human Resources.  Negative substance abuse test results will be discarded after three years.  Substance-abuse test results will remain confidential to the extent permitted by law. Tests will be paid for by the UA. Licensing boards shall be notified of positive drug screens by the appropriate department as required by law. Any questions about mandatory reporting should be directed to the Office of Human Resources or, as necessary, to the Office of General Counsel.
5. Statement Regarding Medical Marijuana
   1. Notwithstanding any state constitutional or statutory provisions permitting the use of medical marijuana, the university remains subject to and will continue to comply with the federal Drug Free Workplace Act of 1988 and Drug Free Schools and Communities Act Amendments of 1989. The university will also comply with applicable state laws and regulations.
   2. Medical marijuana in any form shall not be possessed or used on the university campus or in university-owned or leased space, including housing, or at any university-sponsored events or activities.
   3. All employees remain prohibited from possessing, smoking, ingesting, or otherwise engaging in the use of, or being under the influence of, marijuana or other controlled substances on university property, during working hours, or while operating a vehicle or equipment owned or leased by the university. Employees who violate the drug-free workplace policy remain subject to disciplinary action, up to and including termination of employment.
   4. Any employee may be required to submit to drug testing if there is a reasonable suspicion the employee is impaired from marijuana or other substances while on duty.
   5. In the event an employee tests positive for marijuana and is a qualifying patient, the Office of General Counsel should be consulted before action is taken.
   6. The university shall not discriminate against an applicant or employee in hiring, termination, or any condition of employment based on past or present status as a qualifying patient. For specified positions, a pre-employment substance abuse test is required for employment. 
6. Compliance with Equal Employment Opportunity and Related Requirements
   The university is committed to providing a fair and welcoming workplace.  This policy must be implemented in accordance with all applicable state and federal equal employment opportunity (EEO) laws and university policies which prohibit discrimination or retaliation on the basis of race/color, sex, gender, pregnancy, age (40 or over), national origin, disability, religion, marital or parental status, protected veteran or military status, genetic information, sexual orientation, gender identity, and any other protected characteristic.

 Approved December 16, 2019