Sec. 17.04.09.04. Requirements for Employees

A. Employee Arrest. Each employee arrested for an alleged controlled dangerous substance offense shall report the arrest to the employee's appointing authority on the employee's next scheduled work day, or within 1 week, whichever is earlier. Failure to report the arrest shall result in disciplinary action, up to and including dismissal.

B. Conditions for Testing for Illegal Use of Drugs.

(1) An appointing authority may require that an employee be tested if the appointing authority has reasonable suspicion to believe that the employee has illegally used drugs.

(2) An appointing authority may require employees in positions in sensitive classifications or in sensitive positions to be tested for the illegal use of drugs if any of the following conditions exist:

(a) Reasonable Suspicion. This condition exists when the appointing authority has reasonable and specific grounds to believe that a drug abuse test of an employee shall produce evidence of illegal use of drugs.

(b) Incident Triggered Factor. This condition exists when an injury to the employee or another person or property damage may have been caused by human error, and the employee was directly involved in the accident or incident.

(c) Participation in Drug Abuse Rehabilitation Program. This condition exists when an employee in a position in a sensitive classification or in a sensitive position has notified the employee's appointing authority that the employee is voluntarily participating in a drug abuse rehabilitation program, including any program offered under the State Employee Assistance Program, and this participation is not the result of having tested positive in accordance with this chapter. The employee's appointing authority may arrange for testing of the employee at any time during the:

(i) Employee's participation in the rehabilitation program; and

(ii) One-year period immediately following the employee's successful completion of the rehabilitation program.

(d) Arrest for a Controlled Dangerous Substance Offense. This condition exists when an employee in a position in a sensitive classification or in a sensitive position has notified the employee's appointing authority that the employee has been arrested for a controlled dangerous substance offense.

C. Random Testing.

(1) Each appointing authority, with the approval of the Secretary, shall assure that employees in positions in sensitive classifications or in sensitive positions within the appointing authority are subject to random testing for illegal use of drugs.

(2) Random testing requires that statistically significant samples of employees in sensitive classifications or in sensitive positions be tested on a periodic basis.

(3) All employees in sensitive classifications or in sensitive positions have an equal chance of being tested. However, only a sample of employees in each sensitive classification or a sample of all employees in sensitive positions are tested, based upon an appropriate random sampling technique.

D. Notification.

(1) An appointing authority shall give an employee who is to be tested a Controlled Dangerous Substance Test Order prescribed by the Secretary.

(2) Refusal to be Tested. The appointing authority shall inform an employee who refuses to be tested that refusal may result in disciplinary action, which may include termination from State service.

(3) Positive Test Results. The appointing authority shall inform an employee who agrees to be tested of the consequences of a positive test result in accordance with §E of this regulation.

E. Testing Protocol.

(1) The appointing authority shall provide an employee who is ordered to take a urinalysis for the purpose of testing for illegal use of drugs with a Controlled Dangerous Substance Test Order.

(2) After completion of the test, the test results shall be provided to the State Medical Director, who shall inform the appointing authority of whether an employee has tested positive or negative.

(3) All testing protocols shall be in accordance with Regulation .05 of this chapter.

F. Consequences of Positive Test Results.

(1) When, as a result of a random drug test in accordance with §C of this regulation, an employee in a position in a sensitive classification or in a sensitive position tests positive for use of illegal drugs, the appointing authority shall suspend the employee without pay for 15 work days. As a condition of returning to work, the employee shall enroll in a drug abuse rehabilitation program of at least 6 months duration and shall be subject to periodic testing throughout the duration of the program. At the conclusion of the rehabilitation program the employee shall submit to the Secretary a certification from the attending physician, or a certified chemical dependency counselor, licensed certified social worker, or licensed psychologist associated with the rehabilitation program, certifying on the certificate under oath that the employee has successfully participated in a drug abuse rehabilitation program of at least 6 months duration and has not tested positive for drugs listed in Regulation .06 of this chapter at any point during the rehabilitation program. If the employee does not enroll in a drug abuse rehabilitation program during the suspension period, or if the employee fails to successfully participate in a drug abuse rehabilitation program for at least 6 months, the appointing authority shall begin proceedings to dismiss the employee.

(2) When, as the result of any of the conditions described in §B(2) of this regulation, an employee in a position in a sensitive classification or in a sensitive position tests positive for use of illegal drugs, the appointing authority shall institute proceedings to dismiss the employee in accordance with the employee's status of employment.

(3) When an employee not in a position in a sensitive classification or not in a sensitive position tests positive, the appointing authority shall institute whatever disciplinary action the appointing authority considers appropriate.

(4) Drug Rehabilitation Program.

(a) The employee's continued employment or eligibility for reemployment, if terminated, may be conditioned on the employee's enrollment in and satisfactory completion of a drug rehabilitation program.

(b) If the employee is not terminated, the employee shall be required to enroll in a drug abuse rehabilitation program of at least 6 months duration and shall be subject to periodic testing throughout the duration of the program.

(c) At the conclusion of the rehabilitation program the employee shall submit to the Secretary a certification from the attending physician, or a certified chemical dependency counselor, licensed certified social worker, or licensed psychologist associated with the rehabilitation program, certifying under oath that the employee has successfully participated in a drug abuse rehabilitation program of at least 6 months duration and has not tested positive for drugs listed in Regulation .06 of this chapter at any point during the rehabilitation program.

(d) The employee may be tested again at any point during the year following participation in the rehabilitation program.

(e) If the employee does not enroll in the drug abuse rehabilitation program, or does not successfully complete the rehabilitation program, or if the employee tests positive at any point during the 1 year following participation in the rehabilitation program, the employee shall be terminated.

(5) An employee who is dismissed from State service in accordance with §F(1) of this regulation shall be disqualified from State employment for positions in sensitive classifications or for sensitive positions unless the person submits to the Secretary a certificate from a physician certifying on the certificate under oath that the person has:

(a) Successfully participated in a drug abuse rehabilitation program of at least 6 months duration; and

(b) Been free of drugs listed in Regulation .06 of this chapter for at least 18 months before the person's application for the position.

(6) An individual who is later hired in accordance with the procedure described in §F(5) of this regulation shall be subject to periodic testing for illegal use of drugs. If the individual tests positive, the individual shall be terminated.

(7) An individual who is later hired in accordance with the procedure described in §F(5) of this regulation and who tests positive for illegal use of a controlled dangerous substance shall be dismissed from State service. The individual's eligibility for future State employment shall be conditioned on whatever terms the Secretary considers appropriate.

(8) The State Medical Director may disapprove a certificate as set forth in §F(1) and (5) of this regulation if the State Medical Director determines that the drug abuse rehabilitation program does not meet standards generally recognized in the field of drug abuse treatment or therapy.

(9) Nothing in this section shall be interpreted to prevent an appointing authority from taking appropriate disciplinary action, which may include termination, against an employee when the employee's conduct provides independent grounds for disciplinary action.

G. Appeal Rights. An employee or an applicant-employee may submit a written appeal in accordance with COMAR 17.04.07. The adverse party in an appeal shall be the appointing authority.