TITLE 1 GENERAL GOVERNMENT ADMINISTRATION
CHAPTER 7 STATE PERSONNEL ADMINISTRATION
PART 8 DRUG AND ALCOHOL ABUSE
1.7.8.1 ISSUING AGENCY: State Personnel Board.
[1.7.8.1 NMAC - Rp, 1.7.8.1 NMAC, 02/12/2010]
1.7.8.2 SCOPE: All state agencies in the classified
service.
[1.7.8.2 NMAC - Rp, 1.7.8.2 NMAC, 02/12/2010]
1.7.8.3 STATUTORY AUTHORITY: NMSA 1978, Section
10-9-10(A).
[1.7.8.3 NMAC - Rp, 1.7.8.3 NMAC, 02/12/2010]
1.7.8.4 DURATION: Permanent.
[1.7.8.4 NMAC - Rp, 1.7.8.4 NMAC, 02/12/2010]
1.7.8.5 EFFECTIVE DATE: February 12, 2010, unless a later date is
cited at the end of a section.
[1.7.8.5 NMAC - Rp, 1.7.8.5 NMAC, 02/12/2010]
1.7.8.6 OBJECTIVE: The objective of Part 8 of Chapter 7 is: to
require every state agency to provide its employees with information on the effects of drug and alcohol
abuse; to require drug, alcohol testing or both; and to establish required
collection, screening, rehabilitative and sanction parameters.
[1.7.8.6 NMAC - Rp, 1.7.8.6 NMAC, 02/12/2010]
1.7.8.7 DEFINITIONS:
A. “Alcohol”
means all consumable non-prescription substances which contain alcohol,
specifically including, without limitation, spirits, wine, malt beverages, and
intoxicating liquors.
B. “Aliquot”
means a portion of a urine specimen used for testing.
C. “Chain
of custody” refers to procedures to account for the integrity of each specimen
by tracking its handling and storage from point of specimen collection to final
disposition of the specimen. In any dispute regarding chain of custody, the
identity and integrity of the sample at issue may be established by a
preponderance of the evidence.
D. “Confirmatory
test” means a second analytical procedure to identify the presence of a
specific drug or metabolite in a urine specimen by gas chromatography/mass
spectrometry (GC/MS).
E. “Drug”
means marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines; a
metabolite of those drugs; or any non-prescription substance containing those
drugs.
F. “Initial
test” means an immunoassay screen which meets the requirements of the food and
drug administration to eliminate negative specimens from further consideration.
G. “Medical
review officer” means a New Mexico based and licensed physician knowledgeable
in the medical use of prescription drugs and alcohol and the pharmacology and
toxicology of illicit drugs and alcohol.
H. “Non-prescription”
refers to all substances other than a substance prescribed by a doctor or licensed
health professional to the employee or particular candidate.
I. “On
duty” means any time during an employee's regular workday or other period
during which the employee is required or permitted to work by the employer,
including overtime, lunch and other breaks, and anytime while operating or
riding in a state vehicle.
J. “Possession”
means to knowingly have, own, or have on oneself the drug, the alcohol or both.
K. “Random selection basis” means a system for selecting
employees or groups of employees for drug testing in a statistically random
system based on a neutral criterion, such as employment or position numbers,
without individualized suspicion that a particular employee is using drugs.
L. “Reasonable
suspicion” means a belief drawn from specific objective and articulable
facts and the reasonable inferences drawn from those facts.
M. “Safety-sensitive
position” is a position approved as such by the board, including a supervisory
or managerial position in which impairment by drug or alcohol use would
constitute an immediate and direct threat to public health or safety and
includes, but is not limited to, health care providers, peace officers, pilots,
correctional officers, employees who are required to regularly carry a firearm,
employees who regularly transport other people as their principal job; and
positions involving use of equipment that could pose a risk to public health or
safety.
[1.7.8.7 NMAC - Rp, 1.7.8.7 NMAC, 02/12/2010; A, 10/30/2012]
1.7.8.8 OMNIBUS TRANSPORTATION
EMPLOYEE TESTING ACT OF 1991:
A. Employees
in safety-sensitive positions within the meaning of the Omnibus
Transportation Employee Testing Act of 1991 ("Omnibus Act" (49 U.S.C. Subtitle
VI Part B § 31306) are exempt from and are not covered by the provisions of 1.7.8.7
NMAC and 1.7.8.9 NMAC through 1.7.8.20 NMAC.
B. Agencies
with employees covered by the Omnibus Act shall develop and submit to the
director a policy for implementing drug and alcohol tests.
C. The
policy shall contain at the least the:
(1) covered positions;
(2) testing requirements for drugs and alcohol;
(3) collection of specimen;
(4) reporting and explanation of test results;
(5) confidentiality;
(6) training;
(7) rehabilitation and sanctions;
(8) record retention;
(9) rehabilitative and sanction parameters of
drug and alcohol abuse; and
(10) reasonable
suspicion.
D. Agencies shall advise the board annually of those
positions covered by the Omnibus Act.
[1.7.8.8 NMAC - Rp, 1.7.8.8 NMAC, 02/12/2010]
1.7.8.9 DESIGNATION OF
SAFETY-SENSITIVE POSITIONS:
A. Only
those positions specifically designated by the board as such shall be
considered to be safety-sensitive positions for purposes of 1.7.8 NMAC.
B. The
director shall maintain a list of positions designated by the board as being
safety-sensitive.
C. The
board shall review and approve annually the positions designated as
safety-sensitive.
D. The director
shall seek the board’s approval for out-of-cycle requests for additions and
deletions of safety-sensitive positions.
[1.7.8.9 NMAC - Rp, 1.7.8.9 NMAC, 02/12/2010]
1.7.8.10 SUBSTANCE ABUSE COORDINATOR:
A. Each
agency shall appoint a substance abuse coordinator who shall be responsible for
the agency's drug and alcohol abuse program.
B. The
substance abuse coordinator shall provide drug and alcohol abuse awareness
information to employees including but not limited to the:
(1) dangers of drug and alcohol abuse;
(2) availability of counseling, rehabilitation, and employee assistance
programs; and
(3) sanctions that may be imposed upon employees as provided in 1.7.8.19
NMAC.
C. The
drug abuse coordinator shall ensure that the agency has contracted or made
arrangements with a medical review officer to perform the duties required by 1.7.8
NMAC.
[1.7.8.10 NMAC - Rp, 1.7.8.10 NMAC, 02/12/2010]
1.7.8.11 AUTHORIZED DRUG AND ALCOHOL
TESTING:
A. All
candidates for safety-sensitive positions are required to submit to drug
testing after an offer of employment is made and prior to final selection.
B. Agencies
that require employees in safety-sensitive positions to undergo regular
physical examinations shall require such employees to undergo drug testing as
part of those physical examinations.
C. Agencies
shall require employees to undergo drug, alcohol testing or both if the agency
has a reasonable suspicion that the employee has committed drug or alcohol
abuse based on, but not limited to:
(1) direct observation of the physical symptoms or manifestations of being
under the influence of a drug or alcohol while on duty; such symptoms may
include, but are not limited to liquor on breath, slurred speech, unsteady
walk, or impaired coordination; or
(2) direct observation of the use or possession of drugs or drug
paraphernalia, or the use of alcohol while on duty.
D. An employee shall submit to a reasonable suspicion drug
or alcohol test provided the requesting supervisor has secured the next level
supervisor’s approval, unless the requesting supervisor is the agency head. The
requesting supervisor shall prepare a contemporaneous memorandum outlining the
details leading up to the reasonable suspicion drug or alcohol test. The
memorandum shall be submitted to the substance abuse coordinator within 24
hours of the request for testing.
E. At
least ten percent (10%) of employees in safety-sensitive positions in each
agency shall be required to undergo drug testing on a yearly basis.
(1) The director shall identify the safety-sensitive positions on a random
selection basis.
(2) At the discretion of the agency head or substance abuse coordinator,
employees may be excused from random drug testing if:
(a) they have previously requested referral in accordance with the
provisions of Subsection B of 1.7.8.19 NMAC;
(b) the selection for random drug testing is made during the first 30
calendar days following the request for referral; or
(c) they
are on an authorized absence for 30 calendar days or more.
(3) The agency head or
substance abuse coordinator shall inform the director of any employee excused
from random drug testing within 10 working days of receipt of the notice of
safety sensitive testing.
F. The director may authorize an agency to conduct more than
10% random drug testing on employees in safety sensitive positions upon receipt
of an agency’s written request that would include justification of how the
additional testing is related to the conditions of employment and the use of
equipment that could pose a risk to public health or safety.
[1.7.8.11 NMAC - Rp, 1.7.8.11 NMAC, 02/12/2010; A, 12/1/2010]
1.7.8.12 COLLECTION OF SPECIMENS:
A. Unless
otherwise specified in 1.7.8 NMAC,
urine specimens for drug testing shall be collected by a laboratory meeting
state licensure requirements and certified by the substance abuse and mental
health services administration or the college of American pathologists in
forensic urine drug testing.
B. Breath
specimens may be collected by a certified person, a medical or a laboratory
facility. Should the medical or
laboratory facility not be available or should the equipment fail, the
substance abuse coordinator or designee shall designate another testing
facility and report this referral to the director within ten working days of
taking the breath specimen.
[1.7.8.12 NMAC - Rp, 1.7.8.12 NMAC, 02/12/2010]
1.7.8.13 DRUG TESTS:
A. The
initial and confirmatory drug tests shall be performed by a state licensed
laboratory in accordance with the substance abuse and mental health services
administration or the college of American pathologists in forensic urine drug
testing. The laboratory shall have the capability of performing initial and
confirmatory tests for each drug or metabolite for which service is offered.
B. The
following initial cutoff concentrations shall be used when screening specimens
on the initial drug tests to determine whether they are negative for these
seven drugs or classes of drugs.
(1) Marijuana metabolites 50 (ng/ml)
(2) Cocaine metabolites 150 (ng/ml)
(3) Opiate metabolites 2,000 (ng/ml)
(4) 6-Acetylmorphine 10 (ng/ml)
(5) Phencyclidine (PCP) 25 (ng/ml)
(6) Amphetamines 500 (ng/ml)
(7) MDMA 500 (ng/ml)
C. All
specimens identified as positive on the initial drug test, shall be confirmed
by the laboratory at the cutoff concentration listed below for each drug. All
confirmations shall be by quantitative analysis:
(1) Marijuana metabolite - Delta - 9-tetrahydrocannabinol - 9-carboxylic
acid (THCA) 15 (ng/ml)
(2) Cocaine metabolite - Benzoylecgonine 100 (ng/ml)
(3) Opiates:
(a) Morphine 2,000 (ng/ml)
(b) Codeine 2,000 (ng/ml)
(4) 6-Acetylmorphine 10 (ng/ml)
(5) Phencyclidine (PCP) 25 (ng/ml)
(6) Amphetamines:
(a) Amphetamine 250 (ng/ml)
(b) Methamphetamine 1 250 (ng/ml)
(7)
MDMA (Methylenedioxymethamphetemine) 250 (ng/ml)
(a)
MDA (Methylenedioxyamphetamine) 250 (ng/ml)
(b)
MDEA (Methylenedioxyethylamphetamine) 250 (ng/ml)
(8) 1To be
reported as positive for methamphetamine, a specimen must also contain amphetamine
at a concentration equal to or greater than 100 ng/ml.
D. The laboratory shall report as negative all
specimens that are negative on the initial test or negative on the confirmatory
test. Only specimens reported as positive on the confirmatory test shall be
reported positive for a specific drug.
E. The
laboratory shall retain and place those specimens confirmed positive in
properly secured long-term frozen storage for at least 365 calendar days. An
agency may request the laboratory to retain the specimen for an additional
period of time. If the laboratory does not receive a request to retain the
specimen during the initial 365 calendar day period, the specimen may be
discarded.
[1.7.8.13 NMAC - Rp, 1.7.8.13 NMAC, 02/12/2010; A/E, 10/01/2010; Re-pr, 12/1/2010]
1.7.8.14 ALCOHOL TESTS:
A. A
test for alcohol shall be administered by a legally recognized and approved
method.
B. A
test by a legally recognized or approved method with results of blood alcohol
content (BAC) level of .04 or more shall be deemed
positive for alcohol.
C. An agency may
request in writing through the director that the board approve a lower test
result for blood alcohol content (BAC).
D. For
employees who have undergone alcohol rehabilitation, pursuant to Paragraph
(1) of Subsection D of 1.7.8.19 NMAC,
a positive test result during the 30 to 180 calendar days following the first
positive test shall subject an employee to disciplinary action. Such a test may be performed by urinalysis.
[1.7.8.14 NMAC - Rp, 1.7.8.14 NMAC, 02/12/2010]
1.7.8.15 REPORTING OF TEST RESULTS:
A. Drug
and alcohol test results shall be reported only to the substance abuse
coordinator or designee.
B. The
test report shall contain the specimen number assigned by the agency, the
laboratory accession number and results of the tests. All specimens negative on
the initial test or negative on the confirmatory test shall be reported as
negative. Only specimens confirmed positive shall be reported positive. Results
may be transmitted to the substance abuse coordinator by various means
including certified mail with return receipt requested, courier service, or
electronic mail in a secure area (e.g., facsimile or computer). Certified
copies of all analytical results and chain-of-custody forms shall be available
from the laboratory when requested by the director, the agency head, or
substance abuse coordinator or designee.
C. The
substance abuse coordinator or designee shall advise candidates and employees
in writing of positive test results.
D. All
records pertaining to a given urine specimen shall be retained by the
laboratory for a minimum of two years.
E. Only
those members of management who need to know shall be made aware of the test
results. Breach of confidentiality may be grounds for disciplinary action.
[1.7.8.15 NMAC - Rp, 1.7.8.15 NMAC, 02/12/2010]
1.7.8.16 EXPLANATION OF POSITIVE TEST
RESULTS:
A. Candidates
for a safety sensitive position who test positive for drugs, alcohol or both
may, within two workdays of being advised of the test results, submit a written
request to the agency's substance abuse coordinator for a review of the test
results by the medical review officer. The test results of all employees who
test positive for drugs, alcohol or both shall be referred by the agency's
substance abuse coordinator or designee to the medical review officer.
(1) If the candidate does not request a review of the test results within
two workdays, the candidate waives review by the medical review officer and any
retesting of the sample and consents to rejection for selection.
(2) The medical review officer shall examine any proffered or possible
explanations concerning the validity of the confirmed positive test results.
This action may include conducting a medical interview, review of the medical
history, review of the chain of custody, and discussions with the collection or
laboratory personnel. The medical review officer shall review all medical
records made available by the individual when a positive test could have
resulted from legally prescribed medications for medical or dental treatment.
The medical review officer shall also review the results of any retest done
according to the provisions of 1.7.8.17 NMAC.
(a) Should any questions arise as to the accuracy or validity of a
confirmed positive test result, only the medical review officer is authorized
on behalf of the state to order a reanalysis of the original sample and such
retests are authorized to be performed only at a laboratory that meets
applicable provisions of any state licensure requirements and is certified by
the substance abuse and mental health services administration or the college of
American pathologists in forensic urine drug testing.
(b) Prior to making a final decision to verify a positive test result, the
medical review officer shall give the candidate or employee an opportunity to
discuss the test results. The discussion between the medical review officer and
the candidate or employee may be in person or by telephone.
(c) The medical review officer shall advise the appropriate substance abuse
coordinator of his or her medical conclusions from the review of the test
results. If there are conflicting factual statements, the medical review
officer shall not attempt to resolve that factual conflict, but shall report it
along with his or her medical conclusions to the agency substance abuse coordinator.
Similarly, the medical review officer shall not attempt to ascertain the
factual correctness of any claim by the candidate or employee of involuntary
ingestion of drugs or alcohol or both, but shall simply report such claims to
the agency substance abuse coordinator with his or her medical opinion as to
the possibility that such occurrence could have affected the test results.
B. Based
upon the medical review officer's report and such other inquiries or facts as
the agency may consider, the agency shall determine whether the explanations or
challenges of the confirmed positive test results are satisfactory.
(1) If the explanations or challenges of the positive test results are
unsatisfactory the agency:
(a) shall provide a written
explanation to the candidate or employee as to why the explanation is
unsatisfactory, along with the test results, within 11 calendar days of the
agency's determination; and
(b)
shall retain such records as confidential for one year.
(2) If the explanations or challenges of the positive test results are
satisfactory the agency:
(a) shall notify the candidate or employee in writing within 11 calendar
days of the agency's determination; and
(b)
shall retain such records as confidential for one year.
[1.7.8.16 NMAC - Rp, 1.7.8.16 NMAC, 02/12/2010]
1.7.8.17 RETESTING: Candidates who have sought review of their
positive drug or alcohol urine tests by the medical review officer and all
employees who tested positive for drugs or alcohol urine tests may elect to
have, at their expense, an aliquot of the original urine specimen retested by
another laboratory that meets applicable provisions of any state licensure
requirements and is certified in forensic urine drug testing by either the
substance abuse and mental health services administration or the college of
American pathologists. The drug testing laboratory shall arrange for the
shipment of the aliquot to the laboratory of the candidates’ or employees'
choosing. The agency shall pay for the retest if the retest is negative.
[1.7.8.17 NMAC - Rp, 1.7.8.17 NMAC, 02/12/2010]
1.7.8.18 CONFIDENTIALITY: No laboratory reports or test results shall
appear in the employee's personnel file
unless he or she is subject of a disciplinary action taken in accordance with
the provisions of 1.7.8 NMAC.
Laboratory reports or test results shall be placed in a special locked file
maintained by the substance abuse coordinator. Files relating to laboratory
reports or test results maintained by the substance abuse coordinator are
confidential within the meaning of 1.7.1.12 NMAC.
[1.7.8.18 NMAC - Rp, 1.7.8.18 NMAC, 02/12/2010]
1.7.8.19 REHABILITATION AND SANCTIONS:
A. Candidates for employment:
(1) A candidate for employment in a safety-sensitive position shall be
rejected for selection when he tests positive for drugs and does not seek
review by the medical review officer or cannot satisfactorily explain the
positive test results.
(2) An employee for transfer or promotion to a safety-sensitive position
who tests positive for drugs and is unable to satisfactorily explain the positive
test results shall be subject to disciplinary action including dismissal if the
employee occupies a safety-sensitive position. If the employee is not in a
safety-sensitive position, the employee shall be treated in accordance with the
provisions of Subsection D of 1.7.8.19 NMAC.
B. Voluntary self-identification by employees:
(1) Any employee who requests referral to an EAP,
counseling or a drug or alcohol rehabilitation program, prior to selection for
drug and alcohol testing shall be referred by the substance abuse counselor.
Any costs for counseling or rehabilitation shall be borne by the employee.
(2) The agency may grant administrative leave to an employee to participate
in an employee assistance program, counseling, or a drug or alcohol
rehabilitation program for up to 240 hours for the initial voluntary
self-identification only.
(3) Employees in safety-sensitive positions, who have requested referral
shall be assigned to non safety-sensitive duties until successful completion of
the approved substance abuse program or treatment plan and release by the
substance abuse program provider.
(4) Employees are subject to drug, alcohol testing or both at the discretion
of the substance abuse coordinator at any time between 30 and 180 calendar days
of requesting referral.
(a) Employees in safety-sensitive positions who test positive during this
time period or fail to successfully complete such program are subject to
disciplinary action including dismissal.
(b) Employees in non safety-sensitive positions who test positive during
this time period or fail to successfully complete such program may be subject
to disciplinary action including dismissal. The agency may allow the employee
to use annual leave, sick leave, or leave without pay for additional counseling
or rehabilitation by the agency after considering all factors relevant to the
employee's condition and job performance history.
(5) For employees who have been required to undergo an alcohol
rehabilitation program, any indication of alcohol at any level during the 30 to
180 calendar day period following the referral shall be considered a positive
test result.
C. Safety-sensitive positions: Employees in
safety-sensitive positions who have not requested referral to an employee
assistance program, counseling, or a drug or alcohol rehabilitation program and
test positive on a required drug, alcohol test or both shall be subject to
disciplinary action including dismissal if they do not have a satisfactory
explanation for the positive test results.
D. Non safety-sensitive positions:
(1) Employees in non safety-sensitive positions who test positive on a
reasonable suspicion drug or alcohol test or both required by Subsection
D of 1.7.8.11 NMAC and do not
have a satisfactory explanation for the positive test results shall be referred
to an employee assistance program, counseling, or a drug or alcohol
rehabilitation program. Employees are subject to drug or alcohol testing at the
discretion of the substance abuse coordinator at any time between 30 and 180
calendar days of the first positive test. Any such employee who tests positive
for drugs, alcohol or both between 30 and 180 calendar days of the first
positive test without a satisfactory explanation or who fails to enter and
successfully complete a program shall be subject to disciplinary action
including dismissal.
(2) The agency may grant an employee administrative leave to participate in
an employee assistance program, counseling, or a drug or alcohol rehabilitation
program for up to 240 hours for the initial reasonable suspicion referral only.
E. Refusal to cooperate in testing procedure: Any employee who refuses or fails without
good cause to cooperate in the drug or alcohol testing or both procedure by
refusing or failing to complete the specified forms, by refusing or failing to submit
a urine or breath specimen, or otherwise refuses or fails to cooperate shall be
subject to disciplinary action including dismissal.
F. Possession of drugs or alcohol:
(1) Employees who illegally sell, purchase, or convey from one person or
one place to another drugs or any substance in Schedules I and II of the
Controlled Substances Act, Sections 30-31-1 to 30-31-41 NMSA 1978 (Repl. Pamp. 1994), while on duty shall be subject to
disciplinary action including dismissal and shall be reported to the local law
enforcement agency.
(2) When employees, while on duty consume or have in their possession drugs,
open containers of alcohol or any substance in Schedules I and II of the
Controlled Substances Act, Sections
30-31-1 to 30-31-41 NMSA 1978 (Repl. Pamp. 1994) without
a valid prescription or as otherwise authorized by law, they shall be subject
to disciplinary action including dismissal and shall be reported to the local
law enforcement agency.
[1.7.8.19 NMAC - Rp, 1.7.8.19 NMAC, 02/12/2010; A, 12/1/2010]
1.7.8.20 PILOT PROGRAM: The board may authorize a pilot program to
evaluate impairment testing. Such pilot programs may authorize variances from
provisions of 1.7.8 NMAC, including
random drug testing for participants in the pilot program.
[1.7.8.20 NMAC - Rp, 1.7.8.20 NMAC, 02/12/2010]
HISTORY OF 1.7.8 NMAC:
Pre-NMAC History:
Material in this
part was derived from that previously filed with the Commission of Public Records
- State Records Center and Archives as:
SPB-14, Drug and
Alcohol Abuse, filed 04-04-90.
SPB-14, Drug and
Alcohol Abuse, filed 10-17-90.
SPB-14, Drug and
Alcohol Abuse, filed 12-13-90.
SPB 11, Drug and Alcohol Abuse, filed 12-15-92.
SPB 11, Drug and Alcohol Abuse, filed 03-18-94.
SPB 11, Drug and Alcohol Abuse, filed 12-29-94.
History of Repealed Material:
1 NMAC 7.8, Drug and Alcohol Abuse (filed
06-13-97) repealed 07-07-01.
1.7.8 NMAC, Drug and Alcohol Abuse (filed
06-14-01) repealed 02-12-10.
Other History:
SPB 11, Drug and Alcohol Abuse (filed 12-29-94)
was replaced by 1 NMAC 7.10, Drug and Alcohol Abuse, effective 01-31-96.
1 NMAC 7.10, Drug and Alcohol Abuse (filed
01-12-96) was replaced by 1 NMAC 7.10, Drug
and Alcohol Abuse, effective 05-15-96.
1 NMAC 7.10, Drug and Alcohol Abuse (filed
05-02-96) was replaced by 1 NMAC 7.8, Drug and Alcohol Abuse, effective 07-01-97.
1 NMAC 7.8, Drug and Alcohol Abuse (filed 06-13-97) was
replaced by 1.7.8 NMAC, Drug and Alcohol Abuse,
effective 07-07-01.
1.7.8 NMAC, Drug and Alcohol Abuse (filed 06-14-01) was replaced
by 1.7.8 NMAC, Drug and Alcohol Abuse, effective
02-12-10.