The North Dakota League of Cities partners with Global Safety Network to offer a random drug and alcohol testing program for qualifying city employees.

Not All City Employees Can be Included in a Random Testing Pool
As explained below, cities cannot require employees who are not in safety sensitive positions to participate in random drug and alcohol testing pools. Cities, as government employers, are different from other private employers in many aspects. One of those is that there are different rules for city employers when it comes to drug testing city employees.

The 4^th Amendment to the United States Constitution provides protection from the government conducting searches of individuals in many instances. In other words, the government needs to have justification to search someone’s body or belongings. The United States Supreme Court has held that protections against searches under the 4^th Amendment extend to preventing the government from requiring its employees to participate in drug and alcohol testing unless a good reason exists for requiring it. The discussion in this article is limited to random drug and alcohol testing pools. 

Only city employees who perform jobs that are considered safety sensitive jobs can be required to participate in a random drug and alcohol testing program. To determine whether a position is safety sensitive, the employee’s job duties must be closely examined. A position can be considered a safety sensitive position if the employee’s duties are fraught with such “risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” The following are examples of positions that courts have found meet the requirements to be considered safety sensitive:

Police Officers
Firefighters
Heavy Equipment Operators
Sanitation Drivers
Waste and Sewage Treatment Plant Operators 
Drivers Driving with Commercial Drivers Licenses or US Department of Transportation Licenses

This list is not exhaustive, and cities need to pay close attention to what duties employees are performing before requiring employees to participate in a random drug and alcohol testing pool. Please note that federal law requires certain employees with Commercial Drivers Licenses or U.S. Department of Transportation drivers licenses to participate in a random drug and alcohol testing pool. 

It is also important to point out that courts have found that duties that involve interacting with the public or handling large amounts of money are not, by themselves, enough to justify requiring an employee to participate in a random drug and alcohol testing pool. Additionally, the courts have held that elected officials cannot be required to participate in random drug and alcohol testing programs.

Employee Handbook 
Prior to requiring employees to participate in a random drug and alcohol testing program, cities should ensure that their employee handbook contains a drug and alcohol testing policy. The policy should include language about which positions are covered by the policy, the process used, how employees will be selected, the confidentiality of the records, and the ramifications of a positive test. The policy should also identify that random drug and alcohol testing requirements are administered in an equitable and non-discriminatory manner. 

If a city has a question about whether a specific employee should be required to participate in the random drug and alcohol testing program or policies to include in their handbook, the city should consult its city attorney.

How Does the Program Work?
The League maintains two different groups, known as pools, that are used for drawing which employees need to submit to the random drug or alcohol test. Each eligible employee can only be in one of the following pools:

• the DOT Pool which includes employees with commercial driver licenses (CDLs) or U.S. Department of Transportation licenses who are required by federal law to participate in a random drug and alcohol testing program; or
• the Safety Sensitive (Non-DOT) Pool which includes employees whose job duties are fraught with such risk of injury that a momentary lapse in judgment could result in injury to other people but are not required by federal law to be included in a random drug and alcohol testing program. 

 Here’s how the random drug and alcohol testing program works: 

• The city contacts NDLC and asks to be included in the random drug and alcohol testing program. 
• The city completes the random testing contract and indicates how many employees are being enrolled in each pool- either the DOT Pool or Safety Sensitive (Non-DOT) Pool. 
• NDLC charges each participating city an annual flat rate of $70 for each employee included in a random testing pool. The fee includes: collection, lab/medical review officer testing & reporting, random selections, maintenance of random pool, annual statistical reports and administrative fees.
• The city provides Global Safety Network with employee information through Global Safety Network’s online portal. 
• Global Safety Network reminds cities participating in the program to update their employee lists quarterly in the event that city employees have changed.
• Quarterly random selections from the DOT and from the Safety Sensitive (Non-DOT) pools are computer generated. Drug tests are performed on 50% (DOT) and 35% (Safety Sensitive (Non-DOT)) of employees in each pool annually. Alcohol tests are performed on 10% of employees in each pool annually. 
• Global Safety Network charges the League for all random drug and alcohol tests performed.

As stated, these are random testing pools. That means that names are drawn from the employees submitted by all participating cities. The possibility exists that no employee from a city will be drawn during the calendar year. However, the possibility also exists that multiple employees from a city could be drawn during the calendar year. The drawing software ensues that all employees from all geographical regions have an equal chance of being selected for each draw.

The program meets the requirements of 49 CFR (Code of Federal Regulations) 40, 199, 382, 391 and 395. The service provided by Global Safety Network is confidential. All records and results are housed in-office and are accessed only by Global Safety Network authorized employees. Reporting is done by email, fax, telephone or mail. In accordance with the DOT regulations, negative records are kept for two years and positives are kept for five years. DOT test results are reviewed by a certified Medical Review Officer (MRO) to ensure confidentiality. The MRO has training in substance abuse and will review results and recommend action consistent with all federal regulations.

The Specimen Testing Lab meets all federal requirements and is certified by the Substance Abuse and Mental Health Service Administration (SAMHSA). All drug screens are performed by immunoassay and all positives confirmed by GC/MS or LC/MS/MS. Only DOT authorized devices are used to perform alcohol testing.

Global Safety Network offers on-site/mobile collections at its locations, and will arrange for certified third-party collectors throughout the state. Properly trained collectors make a difference in reducing possible liability. Only collectors that are trained using the US Department of Health and Human Services “mandatory guidelines for Federal Workplace Drug and Alcohol Testing Programs” will perform collection services.

The North Dakota League of Cities Random Drug and Alcohol Testing Program does not include pre-employment, reasonable suspicion testing, or post-accident testing. Cities can contract directly with Global Safety Network or another company for additional drug testing services.

Contact Carissa with questions or to enroll at 701-223-3518 or carissa@ndlc.org.