October 12, 2005 SUBSTANCE POLICY: DRUGS / ALCOHOL 1. PRELIMINARY STATEMENT This Circular: 1.1 Sets forth Department policy concerning the use and possession of illegal drugs; use and possession of legally prescribed drugs in a manner or purpose other than that which is lawfully prescribed; and use and possession of alcohol by Department members. 1.2 Sets forth prohibited conduct related to illegal drugs and alcohol. 1.3 Clarifies responsibility for enforcement of this policy. 1.4 Establishes conditions for mandatory testing for the presence of illegal drugs or alcohol. 2. POLICY 2.1 As first responders to fires, public safety and medical emergencies, disasters and terrorist acts, the FDNY protects the lives and property of New York City residents and visitors. The Department advances public safety through its fire prevention, investigation and education programs. The timely delivery of these services enables the FDNY to make significant contributions to the safety of New York City and homeland security efforts. The efficient performance of this mission demands the highest level of mental and physical fitness of Department members. The lives of citizens and co-workers are dependent upon the fitness, stamina and alertness of firefighters and fire officers. Drugs and alcohol alter alertness, judgment, physical agility and the ability to fulfill one s work responsibilities. Any impairment of the member s physical and mental capabilities increases the danger of accidents and injuries, not only to the member, but to fellow firefighters and to the public. Accordingly, this circular sets forth the Department's policy with respect to alcohol and illegal drugs. The purposes of this policy are as follows: 2.1.1 To ensure the safety of all members. 2.1.2 To prevent accidental injury to persons or property caused by impaired ability. 2.1.3 To promote good health and job fitness of all members. 1
2.1.4 To provide assistance to any member who seeks the Fire Department's help in overcoming addiction to, dependence upon or problems with alcohol or drugs. 2.1.5 To maintain the reputation of the Fire Department and its members as responsible public servants worthy of public trust. 2.2 All members are required to be familiar with and to follow the policies and procedures set forth in this AUC and any addenda. 2.3 All members must be cognizant that time is of the essence with respect to substancerelated misconduct, and that their duties as set forth below in Section 5 must be fulfilled immediately. 2.4 Violation of this policy may result in disciplinary action up to and including termination. A range of penalties is set forth in Section 8, below. 3. DEFINITIONS 3.1 Alcohol: any substance, including medication, that contains alcohol in any amount. 3.2 Illegal drugs include: 3.2.1 Marijuana (cannabis) as currently defined in section 3302 of the N.Y.S. Public Health Law. 3.2.2 Any substance listed in Section 3306 of the N.Y.S. Public Health Law (including, but not limited to, amphetamines, anabolic steroids, barbiturates, cocaine, codeine, hashish, heroin, LSD, mescaline, methadone, methylenedioxymethamphetamine (ecstasy), morphine, narcotics, opiates, PCP, tranquilizers) that are: a. obtained without a lawful prescription, or b. used in a manner or for a purpose other than that which is lawfully prescribed. 3.2.3 Marijuana (as defined above) and certain substances (e.g. ecstasy, heroin) listed in Section 3306 of the N.Y.S. Public Health Law may not be used or possessed lawfully. 3.2.4 Any substance used in a manner prohibited by Federal, State and local laws, rules and regulations. 3.3 Level of alcohol that elicits a positive test result:.05 blood alcohol concentration ( BAC ) (this is the amount of alcohol in your blood) as determined by a urine, blood or saliva test. 2
3.4 Levels of illegal drugs that elicit a positive test result: Substance Urine EMIT Urine GC/MS Test Level Confirmation Test Level 1. Methadone 300 ng/ml 300 ng/ml 2. Opiates 2000 ng/ml 2000 ng/ml 2.a. 6MAM (Heroin) 10 ng/ml 3. Cocaine 300 ng/ml 150 ng/ml 4. Barbituates 200 ng/ml 200 ng/ml 5. Benzodiazepine 300 ng/ml 300 ng/ml 6. Darvon 300 ng/ml 300 ng/ml 7. PCP 25 ng/ml 25 ng/ml 8. Amphetamines 1000 ng/ml 500 ng/ml 9. THC 50 ng/ml 15 ng/ml 10. Methaqualone 300 ng/ml 300 ng/ml 3.5 Positive test result: A laboratory test result that is certified by the Chief Medical Officer, or his or her designee, after reviewing the laboratory report and the completed Drug and/or Alcohol Testing Questionnaire (BHS-1) form or the Random Drug Testing Questionnaire (T-1) form, as applicable. 3.6 Premises: any FDNY division or battalion office, firehouse, ambulance station, or other location owned, leased or operated by FDNY including parking facilities adjacent to such premises. 3.7 Substance: alcohol or illegal drugs as defined in Sections 3.1. and 3.2. 3.8 Substance Test: A test for the presence of alcohol and/or illegal drugs analyzed by a laboratory facility licensed by the New York State Department of Health to perform forensic toxicology and approved by the Department. 3.9 Use: any ingestion, inhalation or injection of alcohol or illegal drug(s). 4. PROHIBITED CONDUCT The following conduct by members is strictly prohibited: 4.1 Use, positive presence, possession, attempted possession, sale, transport or delivery of any illegal drug as defined in Section 3.2 while on-duty or off-duty; or while in uniform; or while in any Department premises, property or vehicle(s). 4.2 Use, possession, sale, transport or delivery of any drug paraphernalia (e.g. hypodermic needles used to inject illegal substances) while on-duty; or while in uniform; or while in any Department premises, property or vehicle(s). 3
4.3 Use, positive presence, possession, sale, transport or delivery of alcohol or related paraphernalia (e.g. beer taps, beer kegs) while on-duty; or while in uniform; or while in any Department premises, property or vehicle(s). 4.4 Any use of alcohol that may elicit a positive test result while on-duty. 4.5 Refusal to cooperate in any substance test ordered by the Fire Department, including the completion and signing of any required forms. 5. DUTIES REGARDING SUBSTANCE POLICIES Duties of All Members 5.1 Every member (who is on duty or is off-duty and present in any Department premises, property or vehicle) who reasonably suspects or knows of a violation of this policy is required to report the violation immediately to the officer on-duty at the location of the violation, to the direct supervising officer of the member who may be in violation of this policy or, if appropriate, to the next superior officer. Any member who fails to report a suspected or known violation of this policy shall be subject to disciplinary action. 5.2 Use of Prescription Medication(s) Every member on light or full duty who is taking a prescribed medication that might be impairing the mental or physical ability to fulfill his or her work duties shall immediately notify his or her commanding officer (or civilian supervisor, if the member has such a supervisor). No member is required to reveal any confidential medical information to their commanding officer or other supervisor. The member may provide a simple statement without revealing either the nature of the medication or the condition for which it was prescribed. Failure by a member to report this information to his or her commanding officer may subject the member to disciplinary action. The member s supervisor shall seek a determination from the Bureau of Health Services ( BHS ) by ordering the member to BHS for a fitness for duty determination. The member s supervisor shall document the referral to BHS in the Unit Journal, or if a Unit Journal is not maintained, in a memorandum to his or her immediate supervisor. The member is required to inform BHS of all relevant medical information. Duties of All Officers 5.3 Every officer on-duty or while in any Department premises, property or vehicle(s) will be held accountable for compliance by their subordinates with these policies. Failure on the part of officers to enforce these regulations will result in appropriate disciplinary action and will be reflected in the officer's performance evaluation. 5.4 Every officer who observes a member exhibiting possible signs of alcohol or drug abuse shall consult with the Counseling Service Unit ( CSU ) and may refer the member to CSU. 4
5.5 Every officer (whether on-duty or while in any Department premises, property or vehicle(s)) who reasonably suspects or knows that any member has engaged in conduct prohibited by this AUC or any addenda shall immediately: 1. Prohibit on and off-duty members present at the time of discovery of any violation of this policy from leaving premises without permission of the investigating officer. If any member is permitted to leave premises during an investigation, the investigating officer shall document the reason for the release in a report to be sent to the Chief of Department via the chain of command. 2. Immediately relieve the on-duty member(s) from emergency response duty. 3. Immediately have the affected unit placed out of service. 4. Notify the administrative Battalion Chief or, if appropriate, the next superior officer. 5. Notify the Bureau of Investigations and Trials ( BITs ). 6. Document the incident in the company journal. Duties of All Chiefs 5.6 Every Chief (whether on-duty or while in any Department premises, property or vehicle(s)) who reasonably suspects or knows that any member has engaged in conduct prohibited by this AUC or any addenda shall immediately: 1. Notify the Borough Command through the chain of command weekdays 0800 hours to 1600 hours or the Command Chief at all other times, i.e. nights, weekends and holidays and ensure that the affected unit has been placed out of service; 2. Ensure that all notifications required under section 5.5 have been made, and 3. Consult with Command Chief to designate an officer as the investigating officer. Duties of Investigating Officer 5.7 The officer charged with investigating a suspected or known violation of this policy shall immediately: 1. Conduct a roll call. All on-duty and off-duty members present in premises shall be part of the roll call. 2. Advise all officers and firefighters whom the investigating officer reasonably believes may be subject to charges of their right to representation before being questioned. 3. Following notification, conduct an investigation to ascertain which member(s) may have engaged in any conduct prohibited under this policy. 4. If the officer has reason to believe that any member(s) has violated this policy, the officer shall immediately order that such member(s) be tested for alcohol and illegal drugs. If the officer orders testing, he or she shall document the reasons for the determination in a report to the Chief of Department via the Chain of Command. If the officer determines that there is no reason to believe that this policy has been violated, he or she shall not order testing and shall document the reasons for his or her determination in a report to the Chief of Department via the Chain of Command. 5
October 12, 2005 Duties of Other FDNY Units and Personnel 5.8 After a suspected or known violation of this policy has been reported, Fire Officers, Medical Officers, BITs and the Testing Unit are authorized to order testing for alcohol and illegal drugs. All testing ordered by a Fire Officer, BHS, BIT or the Testing Unit may be conducted by BHS, BIT or the Testing Unit. All reasons for testing shall be properly documented by the person or unit ordering the testing. 6. TESTING OF MEMBERS 6.1 All Members The following members shall be tested for the presence of illegal drugs and/or alcohol: 6.1.1 Every member ordered for testing pursuant to Section 5 of this policy. 6.1.2 Every member who has been arrested on or off-duty for any reason related to the prohibited conduct specified in section 4.3. 6.1.3 Every member who has been arrested on or off-duty for any reason related to the use or possession of an illegal drug. 6.1.4 Every member whose on-duty conduct leads to a reasonable suspicion that he or she is violating any provision of this policy. 6.1.5 Every member who has been on disciplinary leave or suspension that resulted from (a) the alleged use or possession of alcohol or illegal drugs, or (b) any violation of this AUC or any addenda (including the Random Drug Testing Policy). The BHS shall ensure that the testing takes place prior to the member s return to duty. Such testing may be conducted by BHS or the Testing Unit. 6.1.6 Every member who has operated a Department vehicle that has been involved in a major accident as defined in Safety Bulletin 56. The highest ranking officer who has responded to the accident shall ensure that the testing takes place in an expeditious manner and shall coordinate such testing with the Testing Unit. If any personnel required to be tested are immediately transported to a hospital, the Medical Officer on-duty shall ensure that the personnel transported are tested in an expeditious manner, and shall coordinate such testing with the Testing Unit, BIT or other required BHS personnel. The highest ranking officer (or where applicable, the Medical Officer), shall document the reasons for the failure to test a member via the chain of command in a written report to the Fire Commissioner and Chief of Department. 6
6.1.7 Every member who, after a supervisory referral to the CSU, fails to comply with the treatment recommendations of the CSU. CSU will send the employee to BHS for a duty status evaluation that will include a substance test. The employee's noncompliance will be reported by BHS to the BITs. Any member who receives a supervisory referral and fails or refuses to comply with the treatment program recommended or approved by CSU will be deemed: A. To have disobeyed an order to comply with the treatment plan recommended; B. To have exhausted this treatment opportunity. 6.1.8 Every Probationary Firefighter, Firefighter, Wiper, Marine Engineer, Pilot, Fire Marshal, Lieutenant, Captain, Supervising Fire Marshal, Battalion Chief, Medical Officer, Deputy Chief, Deputy Assistant Chief, Assistant Chief Fire Marshal, Assistant Chief, Chief of Staff, Chief Fire Marshal, Chief of Operations, and Chief of Department shall be subject to illegal drug testing on a random basis. 6.1.9 Every member ordered for testing by a Fire Officer, BHS, BITs or the Testing Unit. 6.2 Members of the Bureau of Fire Investigation 6.2.1 Every applicant to the position of Fire Marshal shall be subject to a substance test. 6.3 Probationary Firefighters 6.3.1 Every probationary firefighter shall be administered an alcohol and illegal drug test as part of the 5th Grade medical examination. 6.4 Members Who Have Signed a Testing Agreement 6.4.1 Every member who has signed an agreement to be tested for illegal drugs and alcohol as a condition of employment or in settlement of a disciplinary matter shall be tested according to the terms of the agreement at the discretion of the Department and without prior notice. 6.4.2 Members subject to drug and alcohol testing pursuant to agreements with the Department may be tested while on-duty at any work locations. Testing Unit personnel shall administer such testing. Upon arrival of the Testing Unit, all personnel at the work location of the member to be tested shall comply with the instructions of the Testing Unit. The member s supervisor shall be responsible for promptly locating the member and for ensuring full and prompt cooperation with Testing Unit personnel. 6.4.3 Members shall not make any public announcement over the intercom or otherwise regarding the arrival of the Testing Unit personnel assigned to conduct substance testing of members. 7
6.4.4 Members on light duty or administrative assignment shall be tested as follows. The ranking Commanding Officer of the unit where member is on administrative assignment or light duty will order the member to report to the Testing Unit forthwith when so informed by the Testing Unit. Transportation will be provided if necessary. 7. TESTING PROCEDURES 7.1 The Department shall test members according to the following procedures, unless the Department is conducting random drug testing. 7.1.1 In all instances, the Department will make every effort to ensure the integrity of the testing procedure and the privacy and dignity of members being tested. 7.1.2 A request to a member to provide urine blood constitutes an order. Every member shall comply with such orders. Members must cooperate fully in providing urine or blood specimens and shall follow instructions given by a Department doctor, nurse, BITs or Testing Unit personnel. 7.1.3 Trained personnel assigned to BITs or the Testing Unit will administer a urine test. 7.1.4 A doctor or nurse assigned to BHS will administer any blood tests. 7.1.5 BHS, BITs or the Testing Unit shall confirm the identity of the employee being tested by checking the member s: FDNY photo identification card; or New York State Driver license. 7.1.6 Members shall list on the Drug and/or Alcohol Testing Questionnaire (BHS-1) form: all prescriptions, over-the-counter medications or dietary supplements ingested, inhaled or injected, or otherwise taken within the previous 72 hours; and all substances containing alcohol consumed within the last twenty-four (24) hours, and all food ingested within the previous 24 hours. The information must be as specific and exhaustive as possible. 8
7.1.7 Re-Testing Procedure 1. Any employee who has tested positive for any illegal drugs may, within 30 days of notification of such result, submit a Request for Drug and/or Alcohol Re-Test (T-3 Form) to BITs, seeking that the specimen be re-tested by a laboratory other than the one that conducted the first test. 7.2 Random Drug Testing 2. Such request shall be granted provided that: A. The laboratory selected by the member for re-test is certified by the New York State Department of Health and approved by the Department for such testing; B. The member had provided a specimen sufficient for additional testing; C. The re-test by the second laboratory is performed solely at the member s expense; D. The re-test by the second laboratory is performed on a specimen contributed at the same time as that specimen tested by the Department s designated laboratory; E. The specimen is transported directly from laboratory to laboratory without handling by the member or any agent of the member, and F. The second laboratory provides test results directly to the Department as well as to the member. 7.2.1 The FDNY shall comply with the random drug testing procedures set forth in AUC 202, Addendum 1. Every member who is subject to testing and other Department personnel shall comply with random drug testing as defined in AUC 202, Addendum 1. 7.3 Substance Testing for Members Who Have Signed Testing Agreements 7.3.1 Testing Unit personnel will call the officer on-duty, after the start of the tour, to ascertain that the member is working. The member is not to be notified until the tester arrives. 7.3.2 When the Testing Unit arrives at the work location, the officer on-duty should direct the member to report to the company office where the member will receive further instructions in connection with the testing to be administered. 9
8. GUIDELINES FOR VIOLATIONS OF THIS POLICY The Department regards violations of this Substance Policy as serious offenses, and has established penalty guidelines for its violation. These guidelines are designed to cover the most common infractions, but there may be cases that do not fit precisely within them. The Department reserves the right to depart from these guidelines as the exacerbating or extenuating circumstances of each individual case require (including the number of supervisory referrals available to the member pursuant to PA/ID 1-84). Moreover, settlement and testing agreements may contain additional conditions. The following are guidelines only and are not meant to abrogate in any way the due process rights provided under the N.Y.S. Civil Service Law, the N.Y.C. Administrative Code or any applicable collective bargaining agreement. In addition, the Department's use of these guidelines will take into consideration any findings and recommendations made by an Administrative Law Judge after a N.Y.C. Office of Administrative Trials and Hearings trial or by a Hearing Officer after a disciplinary proceeding. 8.1 Suspensions Pre-Penalty Administrative Action Members may be suspended for up to thirty (30) days in the following situations: - Any violation of Section 4 and 5 of this policy - Positive test result for Illegal Drug or Alcohol (on-duty) - Drug or Alcohol Related arrest - DWI / DWAI arrest - Any other violations of existing Fire Department policies, rules or regulations 8.2 Any Violation of Section 4 of this Policy Relating to Alcohol First Offense: Up to 90 days pay, 2 years testing, referral to CSU, final warning for substance-related misconduct Second Offense: Up to TERMINATION 8.3 Positive Test Result for Illegal Drug/Refusal to Provide Specimen: Penalties First offense: TERMINATION 8.4 Drug Related Arrest: Penalties Up to TERMINATION 10
8.5 DWI / DWAI Convictions: Penalties First Offense (not involving an accident or injuries): 15-30 days pay, 1 year of testing, referral to CSU, final warning for violations of substance-related misconduct First Offense First Offense (involving a motor vehicle accident, any injury or other aggravating factor(s)): 30 to 60 days pay, 2 years of testing, referral to CSU, final warning for violations of substance-related misconduct (resulting in the serious injury or death of any person): Up to TERMINATION Second Offense: Up to TERMINATION 8.6 Termination of Probationary Firefighters 8.6.1 A probationary firefighter shall be terminated under the following circumstances: A. Refusal to cooperate in a required substance test; or B. Positive drug test indicating conduct prohibited by this policy. 8.6.2 A probationary firefighter may be terminated for any violation of this policy. 11