Drug and Alcohol Testing Policy: Minnesota Standards. This policy was revised and approved by the Administrative Team of MSS

Transcription

1 Drug and Alcohol Testing Policy: Minnesota Standards This policy was revised and approved by the Administrative Team of MSS DECEMBER 2016

2 Page 2 of 17 Index Topic Page I. Purpose 4 II. Scope 4 III. Dissemination of the Policy 5 IV. Definitions 5 V. The Policy A. Substance Abuse by Employees 1. Alcohol 2. Illegal Drugs B. Legal Drugs/Medication VI. VII. VIII. IX. Employee Search Policy A. Search of Company Property B. Investigations Drug and Alcohol Testing A. Pre-Employment B. Reasonable Suspicion C. Post-Accident D. Testing as a Customer Requirement E. Evaluation and Treatment Program Testing F. Testing After Self-Referral for a Chemical Dependency Evaluation Specimen Collection and Testing Procedures A. Collection Procedures B. Testing Procedures C. Right to Demand Retesting and Challenge Test Results D. Test Result Reports Consent Forms, Right to Refuse and Consequences of Refusal A. Consent Forms B. Right to Refuse/Consequences X. Consequences of Testing Positive for the First Time A. Applicants B. Employees 14 15

3 Page 3 of 17 XI. Consequences of Testing Positive for the Second Time 16 XII. Appeal Procedures 16 XIII. Record Keeping - confidentiality 16 XIV. Access to Results 17 XV. Acknowledgement of Receipt of this Policy 17 XVI. Questions 17

4 Page 4 of 17 MIDWEST SPECIAL SERVICES, INC. I. Purpose: Drug and Alcohol Testing Policy Minnesota Standards Midwest Special Services, Inc. (MSS) believes that it is important to maintain safe, healthy, and efficient operations in order to protect the safety and security of people served in our programs, our employees, volunteers, property, and equipment. Being under the influence of drugs or alcohol during working hours may pose serious safety and health risks to the user and all those who work with or receive services from that individual. Being under the influence of drugs or alcohol on the job impairs the efficiency and quality of the program services we provide and our daily operations. The use, possession, sale, transfer, manufacture, distribution and/or dispensation of alcohol or illegal drugs in the workplace also pose unacceptable risks to the maintenance of a safe and healthy workplace. With the issues of safety and productivity in mind,. (MSS) has established this Drug and Alcohol Testing Policy ( the Policy ). This Policy is not intended to be and should not be considered a contract of employment. This Policy is separate from the Agency s policy for testing commercial drivers, which is mandated by federal law. Otherwise, this Policy supersedes and revokes all previous practices, procedures, policies, and other statements of MSS, whether written or oral, that conflict with this Policy. MSS reserves the right to revise or suspend all or any portion of this Policy at any time without prior notice. II. Scope: This Policy applies to the following persons: A. All employees who are employed by Midwest Special Services, Inc. (MSS) excepting only those specified below ( employees ); and B. All persons who have received conditional offers of employment from MSS, excepting only those specified below ( applicants ). C. Exceptions: 1. Commercial drivers: The testing provisions of this policy do not apply to commercial drivers or applicants for drivers positions who are already covered by the Agency s DOT-required testing policy at the time of application. Thus, a driver who possesses a CDL will generally not be subject to testing under this Policy whenever the employee is engaged in activity that requires a CDL. However, if the driver is involved in a workplace accident or injury under circumstances where (a) testing would otherwise be required by this policy, and (b) testing is not called for by DOT Policy, the driver will be subject to testing under this Policy. For example, a driver who drives a forklift truck into another employee causing serious injury to that other employee would be subject to post-accident testing under this Policy. When MSS directs a driver to submit to testing, MSS will inform the driver as to whether the test is being required pursuant to this Policy or the DOT testing policy. 2. Employees who have held temporary, summer positions or other short-term, temporary positions offered to students/interns, and who are returning over holiday breaks, will not be

5 Page 5 of 17 subject to pre-employment testing for the return assignment provided the student/intern is returning within 12 months of the previously conducted initial employment drug test. 3. Independent contractors and employees of independent contractors are not subject to the testing provisions of this Policy. III. Dissemination of the Policy; All persons to whom this Policy applies shall receive a copy of this Policy, and shall be required to sign a statement acknowledging receipt of this Policy. Employees and applicants who have been offered a conditional offer of employment must also sign consent forms prior to testing. IV. Definitions: For the purposes of this Policy, the following terms have the following meanings: A. Illegal drugs means any controlled substance, medication, or other chemical substance that (a) is not legally obtainable; or (b) is legally obtainable, but is not legally obtained or is not being used for the purpose(s) for which it was prescribed or was intended. Thus, illegal drugs may include even over-the-counter medications, if they are not being used for the purpose(s) for which they were intended by the manufacturer. B. MSS property and MSS equipment, machinery, and vehicles mean all real property, plant, equipment and vehicles owned, leased, rented, or used by the Company. C. Working hours means all hours during which an employee is scheduled to work and/or is performing services for MSS and includes break and lunch periods whether or not paid. D. Treatment program means any prescribed or recommended chemical dependency (a) treatment program, (b) rehabilitation program, (c) counseling session(s), and/or (d) aftercare program or meetings (e.g., alcoholics anonymous and narcotics anonymous meetings). V. The Policy: A. Substance Abuse by Employees: 1. Alcohol a. Employees may not use, possess, sell, or transfer alcohol while working, while on MSS property, or while operating agency equipment, machinery, or vehicles. b. Employees may not use alcohol at any time during working hours. c. Employees have detectable levels of alcohol in their systems when reporting to work or at any time during working hours. A blood alcohol level of.02 or greater will be considered as a positive test for alcohol. d. Limited Authorization to Use Alcohol Responsibly. Some employees whose job responsibilities include sales, customer relations, public relations, investor relations, and/or vendor relations may be authorized by the Company to consume alcohol responsibly at appropriate business functions, meetings and/or meals. 1) Prior authorization must be granted in writing by a Vice President or the President of the agency. 2) No authorized employee is required or even encouraged to drink alcohol as a part of the employee s job. If an employee is you are authorized to use alcohol as a part of

6 Page 6 of 17 his/her job, whether or not the employee does so is personal choice. If an employee is authorized to use alcohol and you chooses to do so, it is the to always drink responsibly. This means, among other things, that employees may never: a) operate company equipment, machinery, or vehicles while having an alcohol concentration of.02 or greater; or b) Leave a business function in which the employee was representing MSS and drive home in any vehicle while impaired by alcohol. e. Company Sponsored Social/Business Functions. MSS may authorize alcohol to be served at certain company functions such as a holiday party. No employee is required or encouraged to drink alcohol at any such function. Whether or not an employee decides to do so is his/her own personal choice. If an employee does drink alcohol at a companysponsored function, the employee must always drink responsibly and may not drive home while impaired by alcohol. f. Limited Authorization to Possess Unopened Alcohol. If an employee receives at work a bottle of wine or distilled spirits as a gift, the employee will not be in violation of this Policy provided that the gift is not opened, it remains sealed, and the employee removes the gift from the premises as soon as practicable. Employees who violate any of these rules will be subject to discipline, up to and including immediate discharge. 2. Illegal Drugs: a. Employees may not use or possess illegal drugs, or prescription drugs for which they do not have a valid prescription, during working hours, while on MSS property, or while operating MSS equipment, machinery, or vehicles. b. Employees may not have detectable levels of illegal drugs or the metabolites of illegal drugs in their systems when reporting to work or at any time during working hours. This includes prescription drugs for which the employee does not have a valid prescription. c. Employees may not manufacture, distribute, dispense, transfer, or sell illegal drugs while on the job. Making arrangements for the sale, purchase or transfer of illegal drugs during work time, while at work, or while on the property of MSS or a customer of MSS, for the sale, purchase or transfer of illegal drugs is strictly prohibited, even if the actual sale, purchase or transfer of illegal drugs occurs during non-working time or off MSS property. d. Applicants may not have detectable levels of illegal drugs or the metabolites of illegal drugs in their systems. e. All employees must notify MSS of any criminal drug statute conviction for a drug law violation occurring at work. The notice must be given to MSS no later than five (5) days after the conviction. f. All employees must notify MSS if any criminal drug statue conviction for a drug law violation. The notice must be given to MSS no later than three (3) business day after the conviction.

7 Page 7 of 17 Employees who violate any of these rules will be subject to discipline, up to and including immediate discharge. B. Legal Drugs/Medication: 1. Reporting Requirement: a. If an employee has reason to believe that the use of legal drugs (such as a prescribed medication) while working may pose a significant risk of substantial harm to any person or significantly interfere with the employee s performance of his or her essential job functions, the employee must report the matter to Human Resources. b. MSS shall then determine, after appropriate consultation with occupational health professionals, whether any work restriction or other limitation is needed. The employee may wish to have his or her physician consult directly with MSS s HR Department or Occupational Medical Providers. c. Failure to report the legal use of a drug while working that may pose a significant safety risk could result in disciplinary action, up to and including discharge. d. MSS shall maintain in strict confidence the lawful use of any legal drugs disclosed by any employee pursuant to this paragraph. 2. Work and Medication Any employee who reports his or her legal drug use to MSS may continue to work if management determines, in consultation with occupational health professionals, that the employee (with reasonable accommodation, if necessary): a. does not pose a significant risk of substantial harm to either his or her own safety or the safety of any other person; and b. Can perform the essential job functions of the job. Otherwise, the employee may be required to take a leave of absence, transfer to another job, accept some accommodation, and/or comply with other appropriate action as determined by the Company.\ 3. Marijuana: Employees who have legally prescribed medical marijuana are subject to the policies and procedures within this policy. Employees who are using medically prescribed marijuana are also subject to the same standards of performance as any other MSS employee and are also subject to all provisions of this policy, including Reasonable Suspicion Testing, when determined to be appropriate. a. Employees who provide transportation services to persons served in an MSS program must inform their direct supervisor if they have used legally, medically prescribed marijuana within the previous 6 weeks. b. Employees who have used legally prescribed medicinal marijuana and may have detectable levels of marijuana or the metabolites of marijuana in their systems when reporting to work may not drive an agency vehicle or provide transportation for a person served in a program at any time during working hours.

8 Page 8 of 17 VI. Employee Search Policy A. Search of Company Property: MSS reserves that right to search MSS property and agency equipment, machinery and vehicles (including without limitation desks, cars, lockers and offices) at any time, with or without cause, with or without notice. Any employee whose desk, locker, work station etc. is found to contain an illegal drug or paraphernalia will be subject to discharge. Unless otherwise required by law, an employee s refusal to cooperate with any search may result in disciplinary action, up to and including discharge. C. Investigations: MSS reserves the right to investigate and to interview employees in the course of implementing, applying and enforcing this Policy, and to require truthful answers to inquiries in connection with any such investigation. Employees who refuse to cooperate in any such investigation, or who provide false or misleading information, will be subject to disciplinary action, up to and including discharge VII. Drug and Alcohol Testing: MSS may request or require that employees and applicants provide urine and/or blood samples for drug and/or alcohol testing and breath samples for alcohol testing under any of the following circumstances: A. Pre-Employment Testing: When employment is offered to an applicant, the offer will always be conditional upon the applicant taking and passing a drug test. B. Reasonable Suspicion Testing: MSS may require that an employee undergo a drug and alcohol test if management has a reasonable suspicion that the employee: 1. Has violated the Agency s rules that prohibit the use, possession, sale, or transfer of alcohol and/or illegal drugs while working, while on MSS property, supervising persons served in the program in the community, actively working in the community in a paid capacity on MSS business (unless an exemption had been previously given), or while operating agency equipment, machinery, or vehicles; or 2. Is under the influence of alcohol and/or illegal drugs while working, while on MSS property, or while operating MSS equipment, machinery, or vehicles. Note: Reasonable suspicion will be based upon written documentation of signs and symptoms of drug and alcohol use as determined by individuals trained in recognizing these symptoms.

9 Page 9 of 17 C. Post-Accident Testing: 1. MSS may require that an employee undergo a drug and alcohol test if management has a reasonable suspicion that the employee: a. Has caused another employee or person served by the agency to sustain a work/program related injury that, in the judgment of MSS, requires immediate clinical treatment away from the scene; or b. Has personally sustained an injury that cannot be reasonably attributed to repetitive motion or cumulative trauma and requires immediate treatment away from the scene; or c. Has caused a work-related accident or was operating equipment, machinery or equipment other than a motor vehicle and was involved in a work-related accident that resulted in property damage or loss (including damage or loss to computer files, systems or networks) that, in the immediate, reasonable estimation of management will cost a significant amount to fix, replace, repair or compensate. Significant amount is defined as approximately $1,000 or more. d. Was a covered employee who was operating a motor vehicle and was involved in an accident while driving on agency business (included both a personal vehicle or an agency vehicle) and one or more of the following criteria was met: 1). There was a fatality resulting from the accident; or 2). There was bodily injury to a person who, as a result of the injury, immediately received medical attention away from the scene of the accident; or 3). One or more vehicles incurs disabling damage as a result of the accident, requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle; 2. In all post-accident situations, the MSS supervisor will evaluate the situation. The supervisor will implement the provisions for drug testing for reasonable suspicion as outlined within this policy if: a. the supervisor has reasonable suspicion that the employee has violated the Agency s rules that prohibit the use, possession, sale, or transfer of alcohol and/or illegal drugs while working b. or is under the influence of alcohol and/or illegal drugs while working, while on MSS property, or while operating MSS equipment, machinery, or vehicles, c. Employees must make themselves available for testing immediately following any of the above listed accidents. If circumstances require an employee to leave the scene of an accident, the employee must make a good faith attempt to be tested and to notify MSS management of his or her location. Any employee who fails to report any work-related accident is in violation of this policy and is subject to disciplinary action up to and including termination. D. Testing as a Result of a Customer Requirement: Certain customers of MSS may require that MSS employees, prior to working on an assignment for them, be subject to drug and alcohol testing in accordance with the customer s drug and alcohol testing policy.

10 Page 10 of Before assigning an employee to such a customer, MSS will advise its employees or applicants of this requirement. 2. No employee or applicant will be tested as a result of such a requirement unless the employee or applicant consents to work on the customer assignment and consents to testing. If an individual refuses to be tested, he/she will not be assigned to the customer requiring such testing. If an alternative job assignment is not available, MSS does reserve the right to lay off the employee until an appropriate alternative job assignment becomes available. E. Evaluation and Treatment Program Testing 1. Testing After MSS Has Referred an Employee for a Chemical Dependency Evaluation a. Testing During the Evaluation: If MSS refers an employee for chemical-dependency evaluation, during the evaluation period, (a) MSS may require that the employee undergo drug and/or alcohol testing if the employee is continuing to work, and (b) the evaluator may independently require the employee to submit to drug and/or alcohol testing for the purpose of assisting in the evaluation. b. Testing If Treatment is Prescribed After An Agency Referral: If the evaluator prescribes chemical dependency treatment, MSS may require that the employee undergo: 1) drug testing, repeatedly and without prior notice, during the employee s participation in the treatment program and for up to two years following the completion of the treatment program; and 2) alcohol testing, repeatedly and without prior notice, during the employee s participation in the treatment program and for up to two years following the completion of the treatment program but only to the extent recommended by the evaluator in light of: the diagnosis; the employee s chemical dependency history, including history of relapses; the safety risks associated with the position the employee holds; and the consequences of the employee's inability or impaired ability to perform his/her job functions. 2. Testing After An Employee Has Referred Himself or Herself for the Chemical Dependency Evaluation. a. No Testing During the Evaluation: If an employee has referred himself or herself ( self-referral ) for a chemical dependency evaluation, MSS will not require that the employee undergo testing because of the employee s self-referral. MSS may, however, transfer the employee to a non-safety-sensitive position for the duration of the evaluation. b. Testing If Treatment is Prescribed After a Self-Referral and the Employee Participates in the Treatment Program Under an Employee Benefit Plan.

11 Page 11 of 17 If the evaluator prescribes a chemical dependency treatment program and the employee participates in the treatment program under an employee benefit plan, MSS may require that the employee undergo: 1) drug testing, repeatedly and without prior notice, during the employee s participation in the treatment program and for up to two years following the completion of the treatment program; and 2) alcohol testing, repeatedly and without prior notice, during the employee s participation in the treatment program and for up to two years following the completion of the treatment program but only to the extent recommended by the evaluator in light of: the diagnosis; the employee s chemical dependency history, including history of relapses; the safety risks associated with the position the employee holds; and the consequences of the employee's inability or impaired ability to perform his/her job functions. c. Testing If Treatment is Not Prescribed or an Employee Pays for His Own Treatment After a Self-Referral. No testing will be required under this section after the completion of the evaluation if: (a) the evaluator does not prescribe any chemical dependency treatment; or (b) the employee referred himself or herself for the evaluation and then pays for whatever treatment is prescribed entirely out of his or her own pocket and without resort to any employee benefit plan. PLEASE NOTE: MSS. encourages employees with substance abuse problems to seek help for their problems before performance problems, a positive test result, or other violations of this Policy result in disciplinary action or termination of employment. If an employee has a substance abuse problem that requires professional treatment, MSS s benefit plans and/or insurance policies may cover some or all of the costs of such treatment. We encourage all employees to utilize the Employee Assistance Program. Information on the Employee Assistance Program is available through any supervisor or the Human Resource Department. VIII. Specimen Collection and Testing Procedures A. Collection Procedures: 1. Test Subject Privacy: Medical personnel will supervise the collection of urine and blood specimens for testing. Absent a reasonable suspicion that the test subject will alter or substitute a urine specimen, the medical personnel will not directly observe the collection of the urine specimen. If the collector asks to directly observe the urine collection because of such suspicions, the test subject may avoid observation by offering, in writing, to submit a blood sample in lieu of the observed urine sample. 2. Chain of Custody Procedures: The Company will comply with the provisions of Minnesota law concerning the chain of

12 Page 12 of 17 custody of urine and blood specimens, in order to ensure testing accuracy. B. Testing Procedures 1. Testing Laboratories: Urine and blood specimens will be tested only by laboratories that are properly approved for drug and alcohol testing under governing law. 2. Substances Tested: a. Specimens will be tested only for the presence of alcohol, illegal drugs, and the metabolites of illegal drugs. In addition, urine specimen may also be tested to assure that the specimen is actually the employee s urine, to assure that it has not been adulterated, and to assure that it does not contain any masking agents. b. Pre-employment tests will not screen for the presence of alcohol. 3. Initial Screenings: An initial screening will be conducted first. a. If the initial screening is negative, MSS will inform the employee or job applicant of the negative test result. b. If the initial screening is positive, the testing laboratory will run a confirmatory test. 4. Confirmatory Tests: a. If the confirmatory test is negative, MSS will notify the employee or the job applicant of the negative result. b. If the confirmatory test is positive, the Medical Review Officer (MRO) will notify the employee or job applicant of the positive result 5. Medical Review Officer ( MRO ): A Medical Review Officer ( MRO ) is a physician who is designated by MSS to handle certain functions related to drug testing. The MRO reviews information provided by the test subject to determine if there is a legitimate, biomedical explanation (such as taking a legitimately prescribed medication) for a positive drug test result. The MRO (or person working under the direction of the MRO) shall afford the test subject the opportunity to discuss a positive drug test result with the MRO before the results are reported to MSS. a. Opportunity to explain: The MRO will notify the employee or job applicant of the positive result. The employee or job applicant will be given written notice of the right to explain a positive test result and the right to indicate any over the counter or prescription medication that the employee or job applicant is current taking, or has recently taken, and any other information relevant to the reliability of, or explanation for a positive test result. In addition, within three working days after notice of a positive test result on a confirmatory test, the employee or job applicant may submit any other information to the MRO to explain that result. b. The MRO may verify a positive drug test without having communicated with the test subject about the results of the test if: (a) the test subject expressly declines the opportunity to discuss the results of the drug test; or (b) within five (5) days after being instructed to contact the MRO, the test subject has not done so.

13 Page 13 of 17 The MRO will not disclose to MSS any legitimate, biomedical information provided by a test subject that explains a positive test result. However, the MRO may disclose the use of medication if the MRO determines that use of the medication while performing applicable job responsibilities poses a direct threat to the health or safety of any person. Thus, for example, if an employee gives the MRO a valid prescription for a medication that does not impair the employee s ability to safely perform the employee s job, that information will not be disclosed by the MRO to MSS. It is the responsibility of a test subject awaiting test results to provide MSS with a telephone number where the test subject can be reached and to remain in contact with MSS and the Agency s MRO. Any employee who fails to meet these responsibilities is subject to discharge. Any applicant who fails to meet these responsibilities will not be hired. 6. Cost of Testing: The Company will pay for any drug and/or alcohol test that it requests or requires. 7. Suspensions Pending Test Results: Pending receipt of the test results, the employee may be temporarily suspended. If an employee is suspended and the final test result is negative, the employee will be reinstated immediately with back pay. C. Right to Demand Retesting and Challenge Test Results: Any test subject who tests positive on a confirmatory test on any drug and/or alcohol test required by MSS may: 1. Request in writing a confirmatory retest of the original urine and/or blood sample, at his or her own expense, provided that MSS receives the request within five (5) working days after the test subject has been informed of the confirmed positive test result; and 2. Within 3 working days after receipt of the notice, MSS will notify the Medical Review staff ( ) that the employee or job applicant has requested the laboratory to conduct a confirmatory retest or to transfer the sample to another laboratory licensed under Minnesota law to conduct a confirmatory retest. This retest is performed by quantitative analysis. 3. The confirmatory retest must use the same drug and alcohol threshold detection levels as used in the confirmatory test Confirmatory retests requested and paid for by the test subject may be conducted only by laboratories that are properly approved to conduct drug and alcohol testing under governing law. IX. D. Test Result Reports All test subjects will receive a copy of his or her test result report. Test results will not be disclosed by MSS except as authorized by the test subject or as required or permitted by law. Consent Forms, Right to Refuse and Consequences of Refusal:

14 Page 14 of 17 A. Consent Forms: When an employee or job applicant is asked to be tested, the employee or job applicant will receive a consent form to complete. Only those individuals who consent to testing will be tested. B. Right to Refuse and Interference with Testing: Employees and applicants have the right to refuse drug and/or alcohol testing. However, employees who refuse to undergo testing or who fail to cooperate with the testing procedures will be subject to discipline, up to and including discharge. (Refusal to test will be treated in the same manner as a positive test.) Applicants who refuse to undergo testing or who fail to cooperate with the testing procedures will not be hired. Without limiting the generality of the foregoing, the following are examples of what shall be considered a refusal to submit to testing: failing to appear for testing within a reasonable time, as determined by MSS, after being directed to do so; not remaining readily available to submit to testing after an accident; leaving the testing site before providing an adequate sample; failing to provide enough urine for testing, in the absence of a valid medical explanation; failing to provide a second sample when directed to do so by MSS or collector; failing to report immediately to management any work-related accident or injury that would have resulted in testing under this Policy; adulterating or substituting a urine sample; and Failing to cooperate with any part of the testing process or engaging in conduct that obstructs the testing process. providing a urine specimen that is dilute (defined as a creatinine of less than 20 ng/dl and a specific gravity of less than 1.003) without providing a satisfactory medical explanation. If a sample is diluted or not testable, MSS reserves the right to require that the employee or applicant submit a second sample to be tested. In the event that the second sample if also diluted or not testable, MSS will revoke a conditional job offer made to a job applicant and MSS reserves the right to discipline an employee up to and including termination of employment C. After receipt and review of this Policy, all employees and job applicants must sign a statement acknowledging that they have read and understand the Policy. Failure to do so may be grounds for termination in the case of employees, or rejection of the application in the case of job applicants. X. Consequences of Testing Positive the First Time : A. Applicants: Any applicant who tests positive on a confirmatory test on any test required by MSS and who does not timely and successfully refute the test results by explanation or retesting will not be hired.

15 Page 15 of 17 Applicants who test positive for marijuana and who have a current, legal prescription for this substance will be considered to have a negative test. However, if the position that was offered requires the driving of an agency vehicle or the provision of transportation services to people served within the program, the applicant will not be hired since the candidate did not meet the minimum required qualifications of the offered position. B. Employees: 1. Temporary Suspension or Transfer: A positive test result on an initial screening test that has not yet been verified by a confirmatory test and, if requested by the employee a confirmatory retest, may be grounds to temporarily suspend the tested employee or to transfer the tested employee to another position at the same rate of pay pending the retest, if MSS believes such action is reasonably necessary to protect the health or safety of the employee, co-workers, clients or the public. If the test result of the confirmatory test or requested retest is negative, an employee who was suspended without pay will be reinstated with back pay. No disciplinary action will be taken if a confirmatory retest does not confirm an original positive test result. 2. Any employee who tests positive on a confirmatory test for the first time on any drug and/or alcohol test required by MSS and who does not timely and successfully refute the test results by explanation or retesting ( first-time failing employee ) will be given the opportunity to be evaluated and, if deemed appropriate, participate in either a drug or alcohol counseling or rehabilitation program. a. MSS will consult with a certified chemical use counselor or physician trained in the diagnosis and treatment of chemical dependency to determine which program is appropriate. b. Payment for any portion of the treatment which is not covered by insurance is the responsibility of the employee. c. If the employee accepts the offer for chemical dependency participation in the program, he or she will receive leave without pay for the duration of the treatment program or until the substance abuse professional certifies that the employee may return to work status, whichever is sooner. d. The employee will also be subject to discipline, suspension, transfer, demotion or any other adverse personnel action other than discharge (except as set forth in paragraph XI.B.3, below), to be determined solely by MSS. 3. Any first-time failing employee will be subject to further discipline, up to and including immediate discharge, if the first-time failing employee: a. fails to report for, or cooperate with, the chemical dependency evaluation scheduled by MSS. OR b. has been given an opportunity to participate in a drug or alcohol counseling, rehabilitation or treatment program (the treatment program ), whichever is more appropriate, as determined by MSS after consideration of the chemical dependency evaluation and consultation with appropriate health professionals; and

16 Page 16 of 17 c. has refused to participate in the treatment program or has failed to successfully complete the treatment program, as evidenced by withdrawal from the treatment program before its completion or by a positive confirmatory test result after completion of the treatment program. 4. If a first-time failing employee has been certified to return to work by a substance abuse professional, time lost by that first-time failing employee during participation in a treatment program that requires the employee to miss work will be governed by the Agency s applicable sickness, disability, absence and/or other leave of absence policy. 5. No first-time failing employee will be discharged solely on the basis of his or her first positive confirmatory test. XI. XII. Consequences of Testing Positive the Second Time: Any employee who tests positive on a confirmatory test for the second time on any drug and/or alcohol test required by MSS and who does not timely and successfully refute the test results by explanation or retesting will be subject to discipline, up to and including immediate discharge. Appeal Procedures: Employees and job applicants may appeal adverse employment decisions involving drug or alcohol testing by, within three (3) business days of receiving notice of the adverse employment decision, delivering a written statement to the President of Midwest Special Inc., 900 Ocean St., St. Paul, MN that details the basis for the appeal. Midwest Special Services, Inc. s decision on the appeal will be final and binding. XIII. Record Keeping, Confidentiality: Drug and alcohol test result reports and all other information acquired in the testing process is private and confidential information which will not be disclosed to another employer, third-party individual, governmental agency or private organization without the written consent of the employee or job applicant, with the following exceptions: A. Evidence of a positive test result on a confirmatory test may be used in an arbitration proceeding pursuant to a collective bargaining agreement, in an administrative hearing, or in a judicial proceeding, where the test result is relevant to the hearing or proceeding. B. Evidence of a positive test result on a confirmatory test may be disclosed to any federal agency or United States government unit as required under federal law, regulation or order, or in accordance with compliance requirements of a federal government contract. C. Evidence of a positive test result on a confirmatory test may be disclosed to a substance abuse treatment facility for the purpose of evaluation or treatment of the employee. D. Positive test results from the Company s drug and alcohol testing program will not be used as evidence in a criminal action against the employee or job applicant tested.

17 Page 17 of 17 E. All results of alcohol tests will be maintained in confidential medical files, separate from employees' personnel files. XIV: Access to Results: A. Any employee or job applicant may request in writing from MSS a copy of the test results report on any drug or alcohol test taken by that employee or job applicant. B. Employees will be given access to any information in their personnel files relating to positive drug and/or alcohol testing process and conclusions drawn from and actions taken based on the reports. XV: XVI. Acknowledgement of Receipt of this Policy: After receipt and review of this Policy, all employees and job applicants must sign an acknowledgement form stating that they have received, read and understand this Policy. Failure to do so may be grounds for termination in the case of employees, or rejection of the application in the case of job applicants. Questions: Questions concerning Midwest Special Services, Inc. s Policy and Procedure for Drug and Alcohol Testing should be directed to the Director of Human Resources, Midwest Special Services, Inc., 900 Ocean Street, St. Paul, MN