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SPB Rules Sections 213 to 213.6

SPB Regulations – Pre-Employment Testing – 213-213.6

 
The following rules appear in the California Code of Regulations under title 2, division 1, chapter 1, subchapter 1.3, article 8. Examinations, sections 213 to 213.6. 

§ Section 213. Preemployment Testing for Drug Usage.

An appointing power may conduct drug testing of applicants for a class only when:

(a) The appointing power has documented the sensitivity of the class and the consequences of drug-related behavior by showing that:

(1) The duties involve a greater than normal level of trust for, responsibility for or impact on the health and safety of others, and
(2) errors in judgment, inattentiveness, or diminished coordination, dexterity or composure while performing the duties could clearly result in mistakes that would endanger the health and safety of others; and
(3) employees in these positions work with such independence that it cannot be safely assumed that mistakes such as those described in (2) could be prevented by a supervisor or another employee.

(b) The board concludes after a public hearing that the appointing power has adequately documented the sensitivity of the class and the consequences of drug-related behavior and that drug testing is, therefore, job related for the class; and

(c) As a result of (a) and (b) above, the board approves the inclusion of a requirement of drug testing in the minimum qualifications for the class.

§ 213.1. Notice of Drug Testing in Examination Announcements.

Any examination that includes drug testing as provided by Section 213 shall specify in the examination announcement the type of specimen to be collected and the consequences of failing the drug test.
 

§ 213.2. Drug Testing of Current Employees and Individuals Reinstating.

An applicant or transferee to a class for which drug testing is required pursuant to Section 213 who is a current employee or a former permanent or probationary employee with a break in service as defined in Section 6.4 shall be subject to drug testing pursuant to Section 213, except that if such employee has a current appointment to a class for which drug testing is required pursuant to Section 213, he or she shall not be tested. A current or former employee subject to testing under this section is deemed to be an applicant for purposes of Sections 213.4, 213.5, and 213.6.

 

Section 213.3. Laboratories Authorized to Conduct Drug Testing.

Drug test samples shall only be analyzed by:

(a) A Commercial laboratory meeting standards that are the same as those used by the Department of Health and Human Services (DHHS)/National Institute on Drug Abuse (NIDA) to certify laboratories engaged in urine drug testing for Federal agencies (Mandatory Guidelines for Federal Workplace Drug Testing Program, Federal Register, Vol. 53, No. 69); or those standards used by the College of American Pathologists (CAP) to accredit laboratories for forensic urine drug testing (Standards for Accreditation, Forensic Urine Drug Testing Laboratories, College of American Pathologists); and

(1) is capable of same site initial screening and confirmatory tests,
(2) utilizes FDA-approved immunoassay tests, and
(3) participates in a laboratory proficiency testing program; and

(b) A laboratory which is not a component organization of a State department.

     

    § 213.4. Required Components for Drug Testing.

    Any drug testing or retesting procedure conducted pursuant to sections 213 or 213.2 must be approved by the Department and shall include all of the following:

    (a) The drug screening methodology to be used, which shall be a type of immunoassay, except that another method may be used if a department can demonstrate that it is equally reliable as immunoassay;

    (b) The drugs to be tested which shall include at least the following drugs of abuse:

    (1) Amphetamines and Methamphetamines
    (2) Cocaine
    (3) Marijuana/Cannabinoids (THC)
    (4) Opiates (narcotics)
    (5) Phencyclidine (PCP)

    (c) Cutoff levels for screening tests that will identify positive samples while minimizing false positive test results;
     
    (d) An authorization to test form which shall include at least the following:

    (1) A list of the specific drugs to be tested for, and a description of the consequences of failing the drug test as specified in section 213.5;
    (2) A signature block, to be signed by the applicant before the drug test begins, authorizing the test to proceed and authorizing the necessary disclosure of medical information pursuant to section 213.4.
    (3) A statement that applicants who decline to sign the form or decline to be tested will be disqualified from the examination.

    (e) (1) A requirement that the applicant disclose on a form, separate from the authorization to test form, all drugs and other medications taken, whether prescribed or not, within the 14 days prior to testing. This information shall be examined only by the appointing power and only if the applicant has a positive confirmatory drug test, except that for purposes of administering section 213.6, this information may be examined by the Board and staff authorized to investigate and/or hear appeals.

    (2) A requirement that the appointing power utilize a Medical Review Officer, who shall be a licensed physician with knowledge of substance abuse, to review and interpret positive results of confirmatory tests and the information submitted by the applicant pursuant to section 213.4(e)(1), determine whether the result may have been caused for any medically acceptable reason, such as prescribed or over the counter medications, and report to the appointing power his/her opinion as to the cause of the positive drug test. In the process of making this decision, the Medical Review Officer may request the applicant to provide additional information regarding all drugs and other medications taken.

    (f) Specimen chain of custody provisions which shall include at least the following:

    (1) A procedure to assure that a valid specimen is acquired, the donor is properly identified, and that no tampering or mishandling of the specimen occurs from initial collection to final disposition.
    (2) A written log in which is recorded the name, signature, time of receipt, and time of release of each person handling, testing or storing each specimen, or reporting test results.
    (3) Collection of specimen samples in a clinical setting such as a laboratory collection station, doctor's office, hospital or clinic, or in another setting approved by the Department on the basis that it provides an equally secure and professional collection process.

    (g) Procedure for confirmation of positive screening test results utilizing gas chromatography/mass spectrometry (GC/MS);
     
    (h) Notices to the applicant which shall be written and based n the following:

    (1) If the screening test result is negative, the test is concluded and the applicant has passed the drug test.
    (2) If the necessary confirmatory test result is negative, the test is concluded and the applicant has passed the drug test.
    (3) If both the screening test and the confirmatory test results are positive and the Medical Review Officer's opinion is that the positive test results are not because of prescribed or over the counter medication or for any other medically acceptable reasons, the applicant has failed the drug test.

    (i) Specimen retention and retesting procedure which shall include at least the following:

    (1) Retention of all confirmed positive specimens and related records by the testing laboratory in secure frozen storage for at least one year following the test or until all appeals or litigation are concluded, whichever is longer.
    (2) Provisions for retesting of confirmed positive specimens by any laboratory authorized to conduct drug testing pursuant to section 213.3, at the request of an applicant and at the applicant's expense, provided that the request is received within 30 days of notifying the applicant of his/her disqualification. Retesting shall correspond exactly with the initial testing methods and procedures.

    (j) Provisions for maintaining the confidentiality of test results, which shall include at least the following:

    (1) The results of any test conducted pursuant to sections 213, 213.2 or 213.4(i)(2) shall be given only to the applicant who was tested, the appointing power or the Department, and cannot be revealed to any other party without the written authorization of the applicant except that for the purposes of administering (A) section 213.5, the Department shall reveal a failed drug test to other State appointing powers who administer an examination for which drug testing is required and for which the individual is an applicant; or (B) section 213.6, the Department may reveal a failed drug test and other relevant information to the Board and staff authorized to investigate and/or hear appeals.
    (2) The results of any test conducted pursuant to section 213.2 shall not be used in any adverse action proceedings.
    (3) The information disclosed by the applicant pursuant to section 213.4(e)(1) shall be examined only the appointing power and only if the applicant has a positive confirmatory drug test, except that for purposes of administering section 213.6, this information may be examined by the Board and staff authorized to investigate and/or hear appeals. 
    (4) Drug test results which are positive shall be purged from all records one year from the date the drug test specimen is given except as follows:

    (A) The retention period for drug test results which are positive for a drug as specified in section 213.5(b) shall be ten years from the date the drug test specimen is given;

    (B) If a disqualification from an examination as the result of a positive test is appealed or litigated, the drug test results shall be retained until the appeal or litigation is resolved.

       

      § 213.5. Consequences of Drug Use. 

      (a) Applicants who fail the drug test pursuant to section 213.4 (h), will be disqualified from the examination in which they are competing and, except as provided by section 213.5(e), shall not be eligible to take any State civil service examination for a class for which drug testing is required until one year has elapsed from the date the drug test specimen is given.

      (b) Except as provided by section 213.5(e), applicants who fail the drug test because of a drug for which possession would constitute a felony offense under the Uniform Controlled Substances Act (Health and Safety Code, division 10, beginning at 11000) shall not be eligible to take any State civil service examination for a peace officer class until ten years have elapsed from the date the drug test specimen is given.

      (c) Any applicant for a State civil service examination for a peace officer class who discloses, or whose background investigation reveals, use of a drug for which possession would constitute a felony offense under the Uniform Controlled Substances Act (Health and Safety Code, division 10, beginning at 11000) subsequent to his or her eighteenth birthday and prior to his or her twenty-third birthday, shall be disqualified from the examination in which he or she is competing until five years have elapsed from the date of the disclosed or revealed use of the drug; and shall not be eligible to take any State civil service examination for a peace officer class until five years have elapsed from the date of the disclosed or revealed use. If any such disclosed or revealed use occurred on or after the applicant's twenty-third birthday, he or she shall be disqualified from the examination in which he or she is competing until 10 years have elapsed from the date of the disclosed or revealed use of the drug; and shall not be eligible to take any State civil service examination for a peace officer class until 10 years have elapsed from the date of the disclosed or revealed use. The disqualification period shall begin on the date that the drug was used, and not on the date that the drug use was disclosed or revealed.
       
      (d) Any applicant for a State civil service examination for a peace officer class who is disqualified from the current examination for one of the causes specified in (c) may, upon petition and with the consent of the Department, be permitted to compete in the current examination and, if successful, remain on the eligible list. In acting on the request, the Department shall consider evidence submitted by the person of rehabilitation from drug abuse and/or extenuating circumstances regarding the drug use.

      (e) Any applicant who is disqualified from taking any subsequent examination as specified in this section may, upon petition and with the consent of the Department, be permitted to take the specified examination. In acting on the petition, the Department shall consider evidence submitted by the person of rehabilitation from drug abuse and/or extenuating circumstances regarding the drug use.

      (f) Persons denied permission to take a subsequent examination within the specified one-, five-, and ten-year periods may appeal in writing to the Board within 30 days of notification. 

       

      § 213.6. Appeal of a Disqualification Resulting from a Failed Drug Test or Background Investigation Report. 

      (a) This section pertains to and outlines administrative appeal rights only. An applicant appealing under this section shall follow the procedures in Sections 51 through 54.2.

      (b) An applicant disqualified as the result of failing the drug test may only appeal the disqualification on the grounds that the drug was obtained legally, or there has been a violation of test protocol or chain of custody procedures, or other irregularity that invalidates the test result. A disqualified applicant may have his/her drug test specimen retested at his/her own expense as provided in Section 213.4(i)(2) and include the results of the retesting in his/her appeal.

      (c) An applicant disqualified or withheld from certification as a result of disclosure of drug use or whose background investigation reveals use of a drug pursuant to Section 213.5(c) may appeal the disqualification or the withholding from certification on any grounds allowable by law.

      (d) an applicant who prevails upon appeal under this section will be restored to eligibility in the examination from which disqualified or restored to the eligible list from which withheld.

        Updated: 4/29/2015
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