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Subchapter XX-B. Mandatory Drug and Alcohol Testing of Certain Employees of the Department of Human Services and the Commission on Mental Health Services.

  • Current through October 23, 2012

  • For the purposes of this subchapter, the term:

    (1) "Applicant" means a person who has filed a written employment application form to work for the Department of Human Services or the Department of Mental Health or has been tentatively selected for employment by either the Department of Human Services or the Department of Mental Health to work as a high potential risk employee.

    (2) Repealed.

    (3) Repealed.

    (4) "High potential risk employee" means any Department of Mental Health or Department of Human Services employee who has resident care or custody responsibilities in a secured facility or who works in a residential facility.

    (5) "Post-accident employee" means any Department of Mental Health or Department of Human Services employee who, while on duty, was involved in a vehicular or other type of accident resulting in personal injury or property damage, or both.

    (6) "Probable cause" means a reasonable belief by a supervisor that an employee is under the influence of an illegal substance or alcohol such that the employee's ability to perform his or her job is impaired.

    (7) "Probable cause referral" means a referral, based on probable cause, for testing by the Department of Human Services or the Department of Mental Health for drug or alcohol use.

    (8) "Random testing" means drug or alcohol testing taken by a Department of Mental Health or Department of Human Services employee at an unspecified time for the purposes of determining whether any Department of Mental Health or Department of Human Services employee has used drugs or alcohol and as a result is unable to satisfactorily perform his or her employment duties.

    (9) "Residential facility" means a facility that provides a supervised and sheltered living environment for individuals who need such an environment because of their mental, familial, social, or other circumstances.

    (10) "Secured facility" means a hospital or institution that is:

    (A) Leased, or owned by the District government;

    (B) Operated by the District government; and

    (C) Equipped and qualified to provide in-resident or in-patient care to detained or committed youth or persons with mental illness.

    (Mar. 3, 1979, D.C. Law 2-139, § 2021, as added, Apr. 13, 1999, D.C. Law 12-227, § 2, 46 DCR 502; Dec. 18, 2001, D.C. Law 14-56, § 116(a)(3), 48 DCR 7674; Apr. 24, 2007, D.C. Law 16-305, § 4, 53 DCR 6198.)

    HISTORICAL AND STATUTORY NOTES

    Prior Codifications

    1981 Ed., § 1-621.61.

    Effect of Amendments

    D.C. Law 14-56 substituted "Department of Human Services or the Department of Mental Health" for "Department or the Commission" wherever it appeared; substituted "Department of Mental Health or Department of Human Services" for "Department or Commission" wherever it appeared; and, repealed pars. (2) and (3) which had read:

    "(2) 'Commission' means the Commission on Mental Health Services.

    "(3) 'Department' means the Department of Human Services."

    D.C. Law 16-305, in par. (10)(C), substituted "with" for "suffering from".

    Temporary Amendments of Section

    For temporary (225 day) amendment of section, see § 16(a)(3) of Department of Mental Health Establishment Temporary Amendment Act of 2001 (D.C. Law 14-51, October 30, 2001, law notification 48 DCR 10807).

    Temporary Addition of Section

    For temporary (225 day) addition of section, see § 2 of the Department of Human Services and Commission on Mental Health Services Mandatory Employee Drug and Alcohol Testing Temporary Amendment Act of 1998 (D.C. Law 12-191, March 26, 1999, law notification 46 DCR 3417).

    Emergency Act Amendments

    For temporary addition of subchapter, see § 2 of the Department of Human Services and Commission on Mental Health Services Mandatory Employee Drug and Alcohol Testing Emergency Amendment Act of 1998 (D.C. Act 12-430, July 29, 1998, 45 DCR 5727), § 2 of the Department of Human Services and Commission on Mental Health Services Mandatory Drug and Alcohol Testing Legislative Review Emergency Amendment Act of 1998 (D.C. Act 12-504, October 27, 1998, 45 DCR 8127), and § 2 of the Department of Human Services and Commission on Mental Health Services Mandatory Employee Drug and Alcohol Testing and Department of Corrections Conforming Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-599, January 20, 1998, 46 DCR 1147).

    For temporary (90 day) amendment of section, see § 16(a)(3) of Department of Mental Health Establishment Emergency Amendment Act of 2001 (D.C. Act 14-55, May 2, 2001, 48 DCR 4390).

    For temporary (90 day) amendment of section, see § 16(a)(3) of Department of Mental Health Establishment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-101, July 23, 2001, 48 DCR 7123).

    For temporary (90 day) amendment of section, see § 116(a)(3) of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).

    Legislative History of Laws

    Law 12-227, the "Department of Human Services and Commission on Mental Health Services Mandatory Employee Drug and Alcohol Testing and Department of Corrections Conforming Amendment Act of 1998," was introduced in Council and assigned Bill No. 12-625, which was referred to the Committee on Human Services. The Bill was adopted on first and second readings on November 10, 1998, and December 1, 1998 respectively. Signed by the Mayor on December 11, 1998, it was assigned Act No. 12-548 and transmitted to both Houses of Congress for its review. D.C. Law 12-227 became effective on April 13, 1999.

    For Law 14-56, see notes following § 1-603.01.

    For Law 16-305, see notes following § 1-307.02.

  • Current through October 23, 2012 Back to Top

  • (a) The following Department of Mental Health and Department of Human Services employees and prospective employees shall be tested for drug and alcohol use:

    (1) Applicants for positions that would qualify them as high potential risk employees;

    (2) Employees who have had a probable cause referral;

    (3) Post-accident employees, as soon as reasonably possible after an accident; and

    (4) High potential risk employees.

    (b) Only high potential risk employees shall be subject to random testing.

    (c) All employees of the Department of Mental Health and Department of Human Services shall be given written notice, issued at least 30 days before the implementation of a drug and alcohol testing program, that the Department of Mental Health and Department of Human Services will implement a drug and alcohol testing program.

    (d) No employee may be tested for drug or alcohol use prior to receiving the notice required by subsection (c) of this section.

    (e) Conditions giving rise to probable cause must be observed and documented. Supervisors shall be trained in substance abuse recognition and shall receive a second opinion from another supervisor prior to making a probable cause referral.

    (f) An employee shall be given one opportunity to seek treatment following a positive test result.

    (g) The Department of Mental Health and the Department of Human Services shall procure the services of a contractor to perform the tests required by this subchapter.

    (h) All testing conducted by a vendor shall be implemented pursuant to this subchapter.

    (Mar. 3, 1979, D.C. Law 2-139, § 2022, as added, Apr. 13, 1999, D.C. Law 12-227, § 2, 46 DCR 502; Dec. 18, 2001, D.C. Law 14-56, § 116(a)(4), 48 DCR 7674.)

    HISTORICAL AND STATUTORY NOTES

    Prior Codifications

    1981 Ed., § 1-621.62.

    Effect of Amendments

    D.C. Law 14-56 , in subsecs. (a) and (c), substituted "Department of Mental Health and Department of Human Services" for "Department and Commission" wherever it appeared; and, in subsec. (g), substituted "Department of Mental Health and the Department of Human Services" for "Department and the Commission" wherever it appeared.

    Temporary Amendments of Section

    For temporary (225 day) amendment of section, see § 16(a)(4) of Department of Mental Health Establishment Temporary Amendment Act of 2001 (D.C. Law 14-51, October 30, 2001, law notification 48 DCR 10807).

    Emergency Act Amendments

    For temporary addition of subchapter, see note to § 1-620.21.

    For temporary (90 day) amendment of section, see § 16(a)(4) of Department of Mental Health Establishment Emergency Amendment Act of 2001 (D.C. Act 14-55, May 2, 2001, 48 DCR 4390).

    For temporary (90 day) amendment of section, see § 16(a)(4) of Department of Mental Health Establishment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-101, July 23, 2001, 48 DCR 7123).

    For temporary (90 day) amendment of section, see § 116(a)(4) of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).

    Legislative History of Laws

    For legislative history of D.C. Law 12-191, see Historical and Statutory Notes following § 1-620.21.

    For legislative history of D.C. Law 12-227, see Historical and Statutory Notes following § 1-620.21.

    For Law 14-56, see notes following § 1-603.01.

    Miscellaneous Notes

    Temporary addition of subchapter: See Historical and Statutory Notes following § 1-621.61.

  • Current through October 23, 2012 Back to Top

  • (a) Testing shall be performed by an outside contractor. The contractor shall be certified by the United States Department of Health and Human Services ("HHS") to perform job related drug and alcohol forensic testing.

    (b)(1) For random testing, the contractor shall come on-site to Department of Mental Health or Department of Human Services institutions.

    (2) The contractor shall collect urine specimens and split the samples.

    (c) The contractor shall perform enzyme-multiplied-immunoassay technique ("EMIT") testing on one sample and store the other sample. Any positive EMIT test shall be confirmed by the contractor using gas chromatography/mass spectrometry ("GCMS") methodology.

    (d) Any Department of Mental Health or Department of Human Services employee found to have a confirmed positive urinalysis shall be notified of the result. The employee may then authorize the stored sample to be sent to another HHS certified laboratory of his or her choice, at his or her expense, for secondary GCMS confirmation.

    (e) Probable cause and post-accident testing shall follow the same procedures set forth in subsections (a) through (d) of this section. In such cases, the employee shall be escorted by a supervisor to the contractor's test site for specimen collection or breathalyzer.

    (f) A breathalyzer shall be deemed positive by the Department of Mental Health's or Department of Human Services' testing contractor if the contractor determines that 1 milliliter of the employee's breath (consisting of substantially alveolar air) contains .38 micrograms or more of alcohol.

    (Mar. 3, 1979, D.C. Law 2-139, § 2023, as added, Apr. 13, 1999, D.C. Law 12-227, § 2, 46 DCR 502; Dec. 18, 2001, D.C. Law 14-56, § 116(a)(5), 48 DCR 7674.)

    HISTORICAL AND STATUTORY NOTES

    Prior Codifications

    1981 Ed., § 1-621.63.

    Effect of Amendments

    D.C. Law 14-56, in subsecs. (b)(1) and (d), substituted "Department of Mental Health or Department of Human Services" for "Department or Commission" wherever it appeared; and, in subsec. (g), substituted "Department of Mental Health's and Department of Human Services"' for "Department's and Commission's" wherever it appeared.

    Temporary Amendments of Section

    For temporary (225 day) amendment of section, see § 16(a)(5) of Department of Mental Health Establishment Temporary Amendment Act of 2001 (D.C. Law 14-51, October 30, 2001, law notification 48 DCR 10807).

    Emergency Act Amendments

    For temporary addition of subchapter, see note to § 1-620.21.

    For temporary (90 day) amendment of section, see § 16(a)(5) of Department of Mental Health Establishment Emergency Amendment Act of 2001 (D.C. Act 14-55, May 2, 2001, 48 DCR 4390).

    For temporary (90 day) amendment of section, see § 16(a)(5) of Department of Mental Health Establishment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-101, July 23, 2001, 48 DCR 7123).

    For temporary (90 day) amendment of section, see § 116(a)(5) of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).

    Legislative History of Laws

    For legislative history of D.C. Law 12-191, see Historical and Statutory Notes following § 1-620.21.

    For legislative history of D.C. Law 12-227, see Historical and Statutory Notes following § 1-620.21.

    For Law 14-56, see notes following § 1-603.01.

    Miscellaneous Notes

    Temporary addition of subchapter: See Historical and Statutory Notes following § 1-620.21.

  • Current through October 23, 2012 Back to Top

  • Any Department of Mental Health or Department of Human Services employee who operates a motor vehicle in the performance of his or her employment within the District of Columbia shall be deemed to have given his or her consent, subject to the provisions of this subchapter, to the testing of the employee's urine or breath, for the purpose of determining drug or alcohol content, whenever a supervisor has the probable cause or a police officer arrests such employee for a violation of § 50-2201.05 or has reasonable grounds to believe such employee to have been operating or in physical control of a motor vehicle within the District while that employee's alcohol concentration was 0.08 grams or more per 210 liters of breath, or while under the influence of an intoxicating liquor or any drug or any combination thereof, or while the employee's ability to operate a motor vehicle was impaired by the consumption of intoxicating liquor.

    (Mar. 3, 1979, D.C. Law 2-139, § 2024, as added, Apr. 13, 1999, D.C. Law 12-227, § 2, 46 DCR 502; Dec. 18, 2001, D.C. Law 14-56, § 116(a)(6), 48 DCR 7674; Mar. 2, 2007, D.C. Law 16-195, § 4(a), 53 DCR 8675.)

    HISTORICAL AND STATUTORY NOTES

    Prior Codifications

    1981 Ed., § 1-621.64.

    Effect of Amendments

    D.C. Law 14-56 substituted "Department of Mental Health or Department of Human Services" for "Department or Commission".

    D.C. Law 16-195 substituted "alcohol concentration was 0.08 grams or more per 210 liters of breath" for "breath contained .08% or more, by weight, of alcohol".

    Temporary Amendments of Section

    For temporary (225 day) amendment of section, see § 16(a)(6) of Department of Mental Health Establishment Temporary Amendment Act of 2001 (D.C. Law 14-51, October 30, 2001, law notification 48 DCR 10807).

    Emergency Act Amendments

    For temporary addition of subchapter, see note to § 1-620.21.

    For temporary (90 day) amendment of section, see § 16(a)(6) of Department of Mental Health Establishment Emergency Amendment Act of 2001 (D.C. Act 14-55, May 2, 2001, 48 DCR 4390).

    For temporary (90 day) amendment of section, see § 16(a)(6) of Department of Mental Health Establishment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-101, July 23, 2001, 48 DCR 7123).

    For temporary (90 day) amendment of section, see § 116(a)(6) of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).

    For temporary (90 day) amendment of section, see § 4(a)(1) of Anti-Drunk Driving Clarification Emergency Amendment Act of 2006 (D.C. Act 16-469, July 31, 2006, 53 DCR 6764).

    For temporary (90 day) amendment of section, see § 4(a) of Anti-Drunk Driving Clarification Second Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-518, October 27, 2006, 53 DCR 9104).

    For temporary (90 day) amendment of section, see § 4(a) of Anti-Drunk Driving Clarification Congressional Review Emergency Amendment Act of 2007 (D.C. Act 17-6, January 16, 2007, 54 DCR 1452).

    For temporary (90 day) amendment of section, see § 304(a) of Comprehensive Impaired Driving and Alcohol Testing Program Congressional Review Emergency Amendment Act of 2012 (D.C. Act 19-508, October 26, 2012, 59 DCR 12774).

    Legislative History of Laws

    For legislative history of D.C. Law 12-191, see Historical and Statutory Notes following § 1-620.21.

    For legislative history of D.C. Law 12-227, see Historical and Statutory Notes following § 1-620.21.

    For Law 14-56, see notes following § 1-603.01.

    Law 16-195, the "Anti-Drunk Driving Clarification Amendment Act of 2006", was introduced in Council and assigned Bill No. 16-463, which was referred to the Committee on Public Works and Environment. The Bill was adopted on first and second readings on July 11, 2006, and October 3, 2006, respectively. Signed by the Mayor on October 18, 2006, it was assigned Act No. 16-488 and transmitted to both Houses of Congress for its review. D.C. Law 16-195 became effective on March 2, 2007.

    Miscellaneous Notes

    Temporary addition of subchapter: See Historical and Statutory Notes following § 1-620.21.

  • Current through October 23, 2012 Back to Top

  • (a) The drug and alcohol testing policy shall be issued in writing in advance of program implementation to inform employees and allow them the opportunity to seek treatment. An employee shall be allowed only one opportunity to seek treatment following his or her first positive test result. Thereafter, any confirmed positive drug test, or positive breathalyzer test, or a refusal to submit to a drug or breathalyzer test shall be grounds for termination of employment.

    (b) The program shall cover all Department of Mental Health and Department of Human Services employees, including management, and shall be implemented as a single program of each Department.

    (c) The results of any random test conducted pursuant to this subchapter may not be turned over to any law enforcement agency without the employee's written consent.

    (Mar. 3, 1979, D.C. Law 2-139, § 2025, as added, Apr. 13, 1999, D.C. Law 12-227, § 2, 46 DCR 502; Dec. 18, 2001, D.C. Law 14-56, § 116(a)(7), 48 DCR 7674.)

    HISTORICAL AND STATUTORY NOTES

    Prior Codifications

    1981 Ed., § 1-621.65.

    Effect of Amendments

    D.C. Law 14-56 rewrote subsec. (b) which had read as follows:

    "(b) The program shall cover all Department and Commission employees, including management, and shall be implemented as a single program of the Department and a single program of the Commission."

    Temporary Amendments of Section

    For temporary (225 day) amendment of section, see § 16(a)(7) of Department of Mental Health Establishment Temporary Amendment Act of 2001 (D.C. Law 14-51, October 30, 2001, law notification 48 DCR 10807).

    Emergency Act Amendments

    For temporary addition of subchapter, see note to § 1-620.21.

    For temporary (90 day) amendment of section, see § 16(a)(7) of Department of Mental Health Establishment Emergency Amendment Act of 2001 (D.C. Act 14-55, May 2, 2001, 48 DCR 4390).

    For temporary (90 day) amendment of section, see § 16(a)(7) of Department of Mental Health Establishment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-101, July 23, 2001, 48 DCR 7123).

    For temporary (90 day) amendment of section, see § 116(a)(7) of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).

    Legislative History of Laws

    For legislative history of D.C. Law 12-191, see Historical and Statutory Notes following § 1-620.21.

    For legislative history of D.C. Law 12-227, see Historical and Statutory Notes following § 1-620.21.

    For Law 14-56, see notes following § 1-603.01.

    Miscellaneous Notes

    Temporary addition of subchapter: See Historical and Statutory Notes following § 1-620.21.

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