The Texas Department of Human Services (DHS) is required to
provide a model drug testing policy to nursing facilities under the
Health and Safety Code, §242.050. A nursing facility is not required
to perform drug testing on its employees or applicants for employment.
Although this policy only covers drugs, coverage of alcohol may be
added. Before implementing any drug testing policy, including the
following model policy, DHS recommends that a facility discuss the
policy with its attorney.
(1) Policy.
(A) (NURSING FACILITY NAME) has a vital interest in
maintaining a safe, healthy, and efficient working environment. Being
under the influence of a drug on the job poses serious safety and
health risks to the user, co-workers, and residents. The use, sale,
purchase, transfer, or possession of an illegal drug in the workplace
poses unacceptable risks for safe, healthy, and efficient operations.
(B) (NURSING FACILITY NAME) has the obligation to maintain
a safe, healthy and efficient workplace for all of its employees and
residents, and to protect the facility's property, information, equipment,
operations, and reputation.
(C) (NURSING FACILITY NAME) recognizes its obligation
to its residents to provide services that are free of the influence
of illegal drugs and endeavors through this policy to provide drug-free
services.
(D) (NURSING FACILITY NAME) complies with federal and
state rules, regulations, or laws that relate to the maintenance
of a workplace free from illegal drugs.
(E) All employees are required to abide by the terms
of this policy and to notify management of any criminal drug statute
conviction for a violation that occurred in the workplace no later
than five days after such conviction.
(2) Purpose. This policy outlines the goals and objectives
of (NURSING FACILITY NAME'S) drug testing program and provides guidance
to supervisors and employees concerning their responsibilities for
carrying out the program.
(3) Scope. This policy applies to all departments,
all employees, and all job applicants. The term employee includes
contracted employees.
(4) Definitions. The following words and terms, when
used in this chapter, have the following meanings, unless the context
clearly indicates otherwise.
(A) Facility premises--All property of (NURSING FACILITY
NAME) including, but not limited to, the offices, facilities, and
surrounding areas on (NURSING FACILITY NAME)-owned or -leased property,
parking lots, and storage areas. The term also includes (NURSING FACILITY
NAME)-owned or -leased vehicles and equipment.
(B) Drug testing--The scientific analysis of urine,
blood, breath, saliva, hair, tissue, and other specimens for detecting
a drug.
(C) Illegal drug--Any drug that is not legally obtainable.
Examples of illegal drugs are marijuana, cocaine, heroin, methamphetamines,
and phencyclidine (PCP).
(D) Legal drug--Any prescribed drug or over-the-counter
drug that has been legally obtained and is being used for the purpose
for which it was prescribed or manufactured.
(E) Reasonable belief--A belief based on facts sufficient
to lead a prudent person to conclude that a particular employee is
unable to perform his or her job duties due to drug impairment. Such
inability to perform may include, but not be limited to, decreases
in the quality or quantity of the employee's productivity, judgment,
reasoning, concentration and psychomotor control, and marked changes
in behavior. Accidents, deviations from safe working practices, and
erratic conduct indicative of impairment are examples of "reasonable
belief" situations.
(F) Under the influence--A condition in which a person
is affected by a drug in any detectable manner. The symptoms of influence
are not confined to those consistent with misbehavior or to obvious
impairment of physical or mental ability, such as slurred speech or
difficulty in maintaining balance. A determination of being under
the influence can be established by a professional opinion; a scientifically
valid test, such as urinalysis or blood analysis; and in some cases
by the opinion of a layperson.
(5) Education.
(A) Management personnel are to be trained to:
(i) detect the signs and behavior of employees who
may be using drugs in violation of this policy; and
(ii) intervene in situations that may involve violations
of this policy.
(B) Employees are to be informed of the provisions
of this policy.
(6) Prohibited activities.
(A) Legal drugs. (NURSING FACILITY NAME) reserves the
right at all times to judge the effect that a legal drug may have
on an employee's job performance and to restrict the employee's work
activity or presence at the workplace accordingly.
(B) Illegal drugs. The use, sale, purchase, transfer,
or possession of an illegal drug by any employee while on (NURSING
FACILITY NAME) premises or while performing (NURSING FACILITY NAME)
business is prohibited.
(7) Discipline.
(A) Any employee who possesses, distributes, sells,
attempts to sell, or transfers illegal drugs on (NURSING FACILITY
NAME) premises or while on (NURSING FACILITY NAME) business will be
subject to immediate discharge.
(B) Any employee found through drug testing to have
in his or her body a detectable amount of an illegal drug will be
subject to discipline up to and including discharge. An employee may
be offered a one-time opportunity to enter and successfully complete
a rehabilitation program, approved by (NURSING FACILITY NAME), at
the employee's expense. During rehabilitation, the employee will be
subject to unannounced drug testing. Upon return to work from rehabilitation,
the employee may be subject to unannounced drug testing at (NURSING
FACILITY NAME) expense for a period of 12 months. Any employee whose
test is confirmed as positive during or following rehabilitation will
be subjected to immediate discharge.
(8) Drug testing for job applicants.
(A) All applicants for employment, including applicants
for part-time and seasonal positions and applicants who are former
employees, are subject to drug testing.
(B) If an applicant refuses to take a drug test, or
if evidence of the use of illegal drugs by an applicant is discovered,
either through testing or other means, the pre-employment process
will be terminated.
(C) An applicant must pass the drug test to be considered
for employment.
(D) An applicant will be provided written notice of
this policy and, by signature, will be required to acknowledge receipt
and understanding of the policy before being tested.
(9) Drug testing of employees.
(A) (NURSING FACILITY NAME) will notify employees of
this policy by:
(i) providing them with a copy of the policy and obtaining
written acknowledgement that the policy has been received and read.
(ii) announcing the policy in written communications
and making presentations at employee meetings.
(B) (NURSING FACILITY NAME) will perform drug testing:
(i) of any employee who exhibits "reasonable belief"
behavior;
(ii) of each employee who has direct contact with residents
annually;
(iii) of any employee who is subject to drug testing
pursuant to federal or state rules, regulations, or laws;
(iv) on a random basis of any employee.
(C) An employee's consent to submit to drug testing
is required as a condition of employment and the employee's refusal
to consent may result in disciplinary action, including discharge,
for a first refusal or any subsequent refusal.
(D) An employee who is tested in a "reasonable belief"
situation may be suspended pending receipt of written test results
and inquiries that may be required.
(10) Appeal of a drug test result.
(A) An applicant or employee whose drug test was positive
will have an opportunity to explain why the positive finding could
have resulted from a cause other than drug use. (NURSING FACILITY
NAME) will judge whether the employee's explanation merits further
inquiry.
(B) An applicant or employee whose drug test is reported
positive will be offered the opportunity to:
(i) obtain and independently test, at their expense,
the remaining portion of the urine specimen that yielded the positive
result; and
(ii) obtain the written test result and submit it to
an independent medical review, at their expense.
(C) During an appeal and any resulting inquiries,
the pre-employment selection process for an applicant will be placed
on hold, and the employment status of an employee may be suspended.
An employee who is suspended pending appeal may use any available
annual leave to remain in an active pay status. If the employee has
no annual leave or chooses not to use it, the suspension will be without
pay.
(11) Confidentiality. All information related to drug
testing or the identification of persons as users of drugs will be
protected by (NURSING FACILITY NAME) as confidential unless otherwise
required by law or overriding public health and safety concerns, or
authorized in writing by the persons in question.
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