REGENTS’ POLICY
PART IV – HUMAN RESOURCES
Chapter 04.02 - General Personnel Policies
[S. Henrichs suggestion: in Policy, state simply that UAF follows applicable state and federal
law and regulation. Move specific legal references and most of the specific procedures to
regulation. I have indicated portions I suggest moving to Regulation in green text.]
P04.02.010. Equal Employment Opportunity and Affirmative Action: Statement of Intent.
The board recognizes that discrimination in employment practices has in the past foreclosed
economic opportunity to a substantial number of persons in the United States. The board is
committed to oppose illegal employment discrimination and to prohibit it within the university.
In addition to prohibiting illegal employment discrimination, as a part of its commitment to equal
employment opportunity, the board is committed through an affirmative action program, to
recruit, employ and promote qualified “protected class” persons who have been historically
under-represented in the workforce.
(06-06-07)
P04.02.012. Equal Employment Opportunity Program.
The program of equal employment opportunity consists of two parts: nondiscrimination and a
program of affirmative action.
A.
Nondiscrimination [P. Harrison proposed revisions to update and correct references.]
1.
In accordance with federal and state laws and regulations, the university will not
engage in impermissible discrimination. In accordance with federal and state law
and regulation, the university makes its programs and activities available without
discrimination on the basis of race, religion, color, national origin, citizenship,
age, sex, disability, veteran status, marital status, changes in marital status,
pregnancy, or parenthood. Among the federal and state laws and regulations
prohibiting discrimination in employment that pertain to the university as of June
20072011 are:
Equal Pay Act
Title VI and Title VII of the Civil Rights Act of 1964
Executive Order 11246
Age Discrimination in Employment Act
Title IX of the Education Amendments of 1972
Section 503 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973
Section 508 of the Rehabilitation Act Amendments of 1998
Vietnam Era Veterans' Readjustment Assistance Act of 1974
Pregnancy Discrimination Act of 1978
Immigration Reform & Control Act of 1986
Civil Rights Restoration Act of 1987
Americans with Disabilities Act of 1990
Americans with Disabilities Act Amendments Act of 2008
Age Discrimination Act of 1975
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General Personnel Policies/Regulations
Alaska Statute 14.40.050 and 18.80.220.
Genetic Information Nondiscrimination Act of 2009
Lily Ledbetter Fair Pay Act of 2009
Uniformed Services Employment and Reemployment Rights Act
2.
B.
Individual merit will be considered by the university. University hiring decisions
will be based on the individual's qualifications, demonstrated abilities, and
performance, as appropriate.
Affirmative Action
The university seeks to hire, train and promote individuals based on qualifications and
demonstrated ability to perform the job. In its commitment to affirmative action, the
university is committed to recruit and retain women and minorities in positions of
employment where they have been traditionally under-represented. The concept of
affirmative action requires that practices that adversely impact protected classes should
be eliminated unless the university can demonstrate a legally permissible basis. To
accomplish the goals of its affirmative action program, the university encourages
employment applications from and makes special efforts to recruit protected classes.
(06-06-07)
P04.02.014. Implementation.
The president and the chancellors are responsible for planning, implementing, and monitoring an
effective program of equal employment opportunity. The president and each chancellor will
provide an annual report to the board with regard to the effectiveness of their respective equal
employment opportunity program. [J. Phillips comment: I am not aware of such reports being
submitted to the board. Either the policy should be deleted or reporting should be done.]
(06-20-97)
P04.02.020. Discrimination.
A.
The university will not permit or tolerate discrimination that creates an intimidating,
hostile, or offensive working or learning environment, or that interferes with an
individual’s performance. The university recognizes that conduct which constitutes
discrimination in employment or educational programs and activities is prohibited and
will be subject to corrective and/or disciplinary action.
B.
Discrimination refers to being adversely treated or affected, either intentionally or
unintentionally, in a manner that unlawfully differentiates or makes distinctions on the
basis of the individual’s legally protected status or on some basis other than an
individual’s qualifications, abilities and performance, as appropriate. The university will
vigorously exercise its authority to protect employees and students from discrimination
by agents or employees of the university, students, visitors and guests.
C.
Nothing contained in this policy will be construed or applied to limit or abridge any
person's constitutional right to freedom of expression or to infringe upon the legitimate
academic freedom or right of due process of any member of the university community.
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Principles of academic freedom and freedom of expression require tolerance of the
expression of ideas and opinions even though they may be offensive to some. However,
ideas and opinions must be expressed in a manner that does not create an intimidating,
hostile, or offensive working or learning environment or unreasonably interferes with an
individual’s performance. The university upholds and adheres to principles of academic
freedom and the laws prohibiting discrimination in employment and education.
D.
Individuals who believe they have been subjected to discrimination are encouraged to
bring this behavior or action to the attention of an employee or faculty member who is in
a position to assist in addressing the concern. The affirmative action officer, human
resources or student affairs officer, or designee, as appropriate, will mediate disputes,
receive complaints, obtain process information, or discuss resolution options regarding
discrimination complaints.
E.
The university cannot guarantee confidentiality in connection with complaints alleging
discrimination; however, all university employees and students are expected to make a
reasonable effort to protect the legitimate privacy interests of involved persons consistent
with their obligation to inform the accused.
F.
Nothing in this policy will be construed or applied to create a right to an award of
damages or other monetary compensation against the university or university employees
beyond any existing under state or federal law.
(06-06-07)
P04.02.022. Sexual Harassment.
A.
The university will not tolerate inappropriate sexual or sexually harassing behavior and
seeks to prevent such conduct toward its students, employees and applicants for
employment. Violation of this policy may lead to discipline of the offending party.
B.
Since some members of the university community hold positions of authority that may
involve the legitimate exercise of power over others, it is their responsibility to be
sensitive to that power. Faculty and supervisors in particular, in their relationships with
students and subordinates, need to be aware of potential conflicts of interest and the
possible compromise of their evaluative capacity. Because there is an inherent power
difference in these relationships, the potential exists for the less powerful person to
perceive a coercive element in suggestions regarding activities outside those inherent in
the professional relationship.
C.
It is the responsibility of faculty and staff to behave in such a manner that their words or
actions cannot reasonably be perceived as sexually coercive, abusive, or exploitative.
Sexual harassment also can occur in relationships among equals as when repeated
unwelcome advances, demeaning verbal behavior, or offensive visual or physical contact
conduct interfere with an individual's ability to work or study productively. Consensual
sexual conduct that unreasonably interferes with other employees’ work or creates a
hostile, intimidating or offensive working or learning environment constitutes sexual
harassment for purposes of this policy. [P. Harrison revision for consistency with Alaska
law, ASCHR 18.80.220]
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D.
04.02
The university is committed to providing an environment of study and work free from
sexual harassment and to ensuring the accessibility of appropriate procedures for
addressing all complaints regarding sexual harassment. Nothing contained in this sexual
harassment policy will be construed or applied to limit or abridge any person’s
constitutional right to freedom of expression or to infringe upon the legitimate academic
freedom or right of due process of any member of the university community.
(06-06-07)
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P04.02.024. Consensual Sexual Relations.
A.
Faculty members or staff who engage in sexual relations with students enrolled in their
classes or subject to their supervision, even when both parties have consented to the
relationship, will be engaging in unprofessional behavior.
B.
Supervisors who have authority or control over employees and engage in sexual relations
with those employees, abuse their power, even when both parties have consented to the
relationship.
(06-06-07)
P04.02.026.. Limitation of Liability.
Nothing in P04.02.020 - 04.02.026 will be construed or applied to create a right to an award of
damages or other monetary compensation against the university or university employees beyond
any existing under state or federal law.
(08-15-97)
P04.02.030. Reasonable Accommodation for People with Disabilities: Prohibition Against
Discrimination on the Basis of Disability.
All members of the university community have a right to a working and learning environment
free of all forms of illegal discrimination including discrimination against people with
disabilities. It is the university's intent that no employee, or user of university facilities, be
subjected to unlawful discrimination based on disability.
(06-06-07)
P04.02.032. Definitions.
In P04.02.030 - 04.02.038, unless the context requires otherwise:
A.
"ADA" means the federal law known as the Americans with Disabilities Act of 1990, as
amended;
B.
"ADA coordinator" means the individual designated by the president or his designee to
administer the university's disability discrimination compliance program; [P. Harrison
revision to meet ADA Tiltle II requirement that the highest budgetary official is
responsible for ADA compliance, so that the ADA coordinator stands ‘in the shoes’ of
the responsible person.]
C.
"affirmative action officer," or “AAO” means the regional affirmative action officer,
director, or designee, whichever reference is applicable;
D.
"complainant" means the person or persons asserting a complaint;
E.
"person with a disability" means an individual who:
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1.
has a documented physical or mental impairment that substantially limits a major
life activity; [P. Harrison revision; “documented” or “documented record” are not
part of the Federal definition. Revisions to 2. and 3. are also for consistency with
law.]
21.
has a documented record of a physical or mental impairment that substantially
limits a one or more major life activityies; or
32.
is regarded as having a physical or mental impairment that substantially limits a
one or more major life activityies;
F.
"reasonable accommodation" means the process of modifying or adjusting the is any
change or adjustment to a job or work environment that permits a qualified applicant or
employee with a disability to participate in the job application process, to perform the
essential functions of a job, or to enjoy benefits and privileges of employment equal to
those enjoyed by employees without disabilitiesto reasonably accommodate the
functional limitation caused by a disability; [P. Harrison revision to be consistent with
change in the Federal definition.]
G.
“reasonable accommodation resolution" means the process whereby the ADA coordinator
or AAO facilitates the development of an appropriate reasonable accommodation; and
H.
"respondent" means the university employee, officer, agent, or representative whose act
or failure to act is being disputed.
(06-06-07)
P04.02.033. Request for Accommodation.
A.
The purpose of this process is to educate the person or persons involved about the
applicable provisions of the law, to provide a non-retaliatory environment to determine
accommodations, and to initiate change in behavior, practice, or treatment that will lead
to a positive work environment.
B.
A university employee who believes that the employee requires accommodation must
present medical documentation to the employee’s immediate supervisor, with copies to
the AAO or designee, when the disability or need for accommodation is not known or
obvious to the supervisor. [M. Matthews comment: The university should have written
guidelines on the medical documentation that needs to be submitted.]
C.
An informal complaint to the AAO must state the employee's name, and provide a
detailed description of the practice or action that allegedly requires accommodation or
constitutes discrimination on the basis of disability. [M. Matthews proposes a time limit
on discrimination complaints; however, any such limits must be consistent with state and
federal law].
D.
No person who acts in good faith will be subject to restraint, interference, coercion,
reprisal, or retaliation for initiating a request or complaint or participating as a witness or
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in another capacity in any proceeding designed to foster compliance with this policy and
university regulation.
E.
In attempting to informally determine an appropriate accommodation or resolve a
complaint, the AAO will obtain and clarify relevant information and current
documentation from the employee, the supervisor, the regional personnel director, and
other involved persons. The outcome of a reasonable accommodation generally will not
include documentation copied to the personnel file or widespread distribution of
decisions regarding any accommodations made. However, any documentation relating to
a disability, reasonable accommodation, or complaint will be kept in a separate file apart
from the employee's personnel file. [M. Matthews and P. Harrison proposed edits.]
(06-06-07)
P04.02.034. Formal Complaint.
An employee who claims to have been subjected to discrimination based upon a disability and
who has exhausted the reasonable accommodation process may initiate a written formal
complaint. Formal complaints must be presented to the ADA coordinator and must include, at a
minimum, the following information: [Additions proposed by Paula Harrison to provide the
ADA coordinator with key information.]
A.
the name of the complainant and the respondent;
B.
a clear and concise description of the event(s), including date(s), and the alleged
discriminatory action or conduct;
C.
an explanation of the impact upon the complainant of the alleged discriminatory action or
conduct;
D.
an explanation of why the complainant believes the action or conduct was discriminatory,
including names of individuals who were treated more favorably, if applicable;
DE.
a summary of attempts taken to resolve the complaint informally; and
EF.
the remedy requested.
(06-06-07)
P04.02.035. Determination of Formal Complaint.
A.
The AAO and ADA coordinator are responsible for ensuring compliance with the
provisions in the Americans with Disabilities Act and other applicable laws in their
efforts to coordinate disputes involving people with disabilities within the university.
B.
The ADA coordinator will determine whether there is reasonable basis to justify relief in
the form of a reasonable accommodation. If so, the ADA coordinator will identify
appropriate solutions, including recommendations for reasonable accommodation, and
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report those recommendations to the respondent's immediate supervisor, regional human
resources office, and other appropriate administrative officers.
(06-06-07)
P04.02.036. Remedies.
A.
Unjustified delay or refusal to implement the solutions or the reasonable accommodations
recommended by the ADA coordinator may lead to referral to an appropriate
administrative officer to obtain proper and timely action. An employee who delays or
refuses unjustifiably to implement the recommendations is subject to disciplinary action.
B.
If the ADA coordinator determines that there is not just cause evidence to support a
disability discrimination complaint, the coordinator will notify the complainant in writing
of that determination and the reason therefore. The complainant may appeal the ADA
coordinator's determination or the respondent’s alleged improper action by submitting a
grievance to the grievance council at Step 3 of the grievance resolution process contained
in P04.08 and R04.08. The grievance must be filed within 45 working days of the date
on which the complainant received the ADA coordinator's written determination. [Paula
Harrison revision; “just cause” is not required under the ADA.]
(06-06-07)
P04.02.037. Confidentiality.
The university cannot guarantee confidentiality. However, all university employees are expected
to make a reasonable effort to protect the legitimate privacy interests of involved persons.
(06-06-07)
P04.02.038. Records Retention.
The affirmative action officer and ADA coordinator will maintain appropriate records
concerning complaints brought under the provisions of the informal and formal complaint
processes. These dispute resolution records are considered confidential under federal law and
will be maintained accordingly.
(05-04-99)
P04.04.039. Employee Financial Obligations to the University [New policy recommended
by Jim Lynch and Donald Smith.]
Payment of the employee’s financial obligations to the university within a reasonable period, as
may be determined by the regional human resources officer, shall be a condition of employment
by the university.
P04.02.040. Drug-Free Workplace.
A.
04.02
The unlawful manufacture, distribution, dispensing, possession, or use by an employee of
a controlled substance as defined in Schedules I through V of Section 202 of the
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Controlled Substances Act (21 USC 812), and as further defined by regulation at 21
C.F.R. 1308.11 - 1308.15 is prohibited in any workplace of the university.
B.
All employees will abide by the terms of this policy as a condition of their employment
and will notify the university of any criminal drug statute conviction for a violation
occurring in the workplace no later than 5 working days after the conviction. Within 30
days of receiving the notice of conviction, the university will take appropriate personnel
action against the employee as prescribed by university regulation, up to and including
termination, or require the employee to participate satisfactorily in a drug abuse
assistance or rehabilitation program approved for such purposes by a federal, state, or
local health, law enforcement, or other appropriate agency.
C.
The university regulation implementing this section must provide for publishing a
statement to notify employees of this policy and to establish a drug-free awareness
program to inform employees about: the dangers of drug abuse in the workplace; the
university's policy of maintaining a drug-free workplace; any available drug counseling,
rehabilitation, and employee assistance programs and the penalties that may be imposed
upon employees for drug abuse violations occurring in the workplace.
D.
Each employee will be provided a copy of this policy and accompanying university
regulation.
(06-20-97)
P04.02.050. Employee Alcohol and Controlled Substances Testing.
A.
The university regulation implementing P04.02.040 and this section will at a minimum
provide for the establishment of alcohol and controlled substances testing programs as
required by law; the imposition of penalties on employees when tests exceed allowable
levels; compliance with reporting and record keeping requirements; dissemination to
affected employees of educational materials explaining the legal requirements, this policy
and university regulation; and provide for appropriate staff and supervisor training and
employee assistance programs. Collective bargaining units representing affected
university employees will be given written notice concerning the availability of this
information. [Paula Harrison; Supervisor training is mandated by state law.]
B.
All employees subject to laws mandating alcohol and controlled substances testing will
comply with such laws, this regents’ policy and university regulation as a condition of
their employment.
(06-06-07)
P4.02.070 Employee Work Activity Outside of Alaska [Paula Harrison proposed addition
based on recommendations of Michelle Pope and Ardith Lynch.]
Employees who perform work outside the State of Alaska for a total of more than 30 work days
in any calendar year shall have the prior approval of the regional human resources officer or
designee. [S. Henrichs comment; there may be need for this policy based on state tax laws or
other issues, but implementing this will create a lot of work. This could apply to as many as
100% of research active faculty and a large number of staff, depending on whether (a) It applies
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to individuals on travel status. (b) It applies to faculty on sabbatical. (c) It applies to individuals
located at certain facilities that are not in Alaska, but are not in another state or foreign country
either…ships or submarines on or in the high seas, or research stations in Antarctica for example.
These points need clarification in either policy or regulation.]
P0.02.080 Telework [Paula Harrison proposed addition based on recommendations of Michelle
Pope and Ardith Lynch.]
Work outside of the primary university-provided workplace during scheduled work hours for one
or more days a week on a regular basis requires prior approval of the regional human resources
officer or designee.
[S. Henrichs comment; the CBA allows faculty to work as paid consultants 1 day per week, so
this is somewhat in conflict. More broadly, this involves so many people, in my opinion, that it
is unworkable. There are many people (faculty and staff) who engage in regular research field
work, for example. Education faculty must supervise teaching interns in K-12 schools. We
employ a substantial number of faculty who teach via distance technologies. And, faculty are
traditionally accorded the privilege to choose their working hours and location except for the
CBA requirement to keep and post regular office hours. Further many people have several
university-supplied workplaces..an office, a lab, an administrative office, and so on, all of which
could be in different buildings or in different parts of a community. Extension faculty and staff
are expected to be outside of their offices in the community very frequently. I provide what
might be a more workable alternative wording below, but this should receive extensive review
before any revision of Policy is attempted.]
Work performed outside university-provided workplace(s) during scheduled work hours for one
or more days a week on a regular basis requires prior approval of the regional human resources
officer or designee. Any work that is normally expected to be done outside university-provided
workplaces, including field research, outreach and extension, supervision of interns, and faculty
consulting allowed under a collective bargaining agreement, is excepted from this policy.
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UNIVERSITY REGULATION
PART IV - HUMAN RESOURCES
Chapter 04.02 – General Personnel Regulations
R04.02.010. Equal Employment Opportunity and Affirmative Action: Statement of Intent
[Proposed revisions by Tara Ferguson]
Persons have equal employment opportunities at the University of Alaska based solely upon their
qualifications and demonstrated ability or demonstrated potential ability.
The University of Alaska affirms its commitment to principles of nondiscrimination in the hiring
and employment of all persons of legal employment status regardless of race, color, religion, sex,
sexual orientation, national origin, citizenship, pregnancy, childbirth or related medical
conditions, marital status, changes in marital status, disability, age, status as a disabled veteran or
Vietnam era veteran.
Each major administrative unit will have a written Affirmative Action Plan which sets forth
specific affirmative action responsibilities. Hiring authorities will make affirmative efforts to
recruit and employ qualified people who are members of “protected classes” presently underrepresented.
Methods of recruiting, screening and selection will be documented and be approved by the AAO
or the regional personnel human resources office, as determined by the president or chancellor as
appropriate, prior to recruitment.
Employment at the university will be governed as follows:
A.
04.02
Definition of Terms
1.
“Affirmative Action Officer” (AAO) refers to the unit, regional Affirmative
Action office, director or designated person, whichever reference is applicable.
2.
"Affirmative Action Plan" (AAP) refers to a written document developed and
maintained by each major administrative unit AAO which identifies those groups
presently under-represented in the University of Alaska workforce. The AAP
establishes recruitment strategies for each job group in order to increase the
number of currently under-represented members of “protected classes” in the
university labor force.
3.
"Applicant" refers to an individual who applies for a specific position vacancy
during a specified recruitment period.
4.
"Applicant Pool" refers to applicants who meet the minimum qualifications of the
position being recruited for based on application materials submitted and
approved by the regional personnel or affirmative action office.
5.
“Candidate” refers to an applicant selected for final stage screening.
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04.02
6.
"Hiring Authority" refers to the individual who is accountable for following
recruiting and staffing policy and regulation and applicant selection decisions.
7.
“Persons with disabilities” - as defined by the Americans with Disabilities Act,
those persons who have a physical or mental impairment, a record of a physical or
mental impairment, or are regarded as having a physical or mental impairment
which substantially limits one or more major life activities.
8.
“Protected class” refers to members of any one or more of the following groups:
a.
Black (not of Hispanic origin) - a person having origins in any of the
Black racial groups of Africa.
b.
Hispanic - a person of Mexican, Puerto Rican, Cuban, South American, or
other Spanish culture origin, regardless of race.
c.
Asian or Pacific Islander - a person with ancestry in the Indian
subcontinent, the region referred to as the Far East, Southeast Asia, or the
Pacific Islands, e.g., India, Pakistan, Thailand, China, Japan, Philippines
(not the Middle East).
d.
American Indian or Alaska Native - a person having origins in any of the
original peoples of North America and who maintains cultural
identification through tribal affiliation or community recognition.
e.
Women of all races and national origins who are applicants for positions
that are not clerical in nature.
f.
"Vietnam era veterans" - any veteran of the Vietnam era (August 15, 1964
- May 7, 1975).
g.
"Disabled veterans" - persons entitled to disability compensation under
laws administered by the Veterans Administration for disability rated at 30
percent or more or a person whose discharge from active duty was for a
disability incurred or aggravated in the line of duty.
9.
"Regional personnelhuman resources office" refers to the MAU regional
personnelhuman resources or statewide human resources office, director, or
designated person, whichever reference is applicable.
10.
"Target recruitment" refers to recruitment efforts specifically made to recruit
members of “protected classes” (target groups) which are presently underrepresented in a particular EEO-6 job category in the university's work force.
11.
“Working environment” means any place where the business of the university is
conducted in the name of the university or any unit thereof.
(04-21-95)
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R04.02.020. Discrimination
A.
B.
04.02
Prohibition Against Discrimination
1.
Discrimination is a form of misconduct which undermines the integrity of the
working and learning environment and will not be tolerated on or at University of
Alaska premises or functions.
2.
Subject to the constraints of Regents’ Policy, the broadest range of legally
permissible speech and expression will be tolerated in the learning environment,
student and scholarly publications, and at public forums open to public debate and
the exchange of ideas.
Definitions
1.
"Discrimination" refers to being adversely treated or affected, either intentionally
or unintentionally, in a manner that unlawfully differentiates or makes distinctions
on the basis of an individual's legally protected status or on some basis other than
an individual's qualifications, abilities, and performance, as appropriate.
2.
"Learning Environment" is defined as the premises of the University of Alaska
system or any site where educational programs and activities are conducted in the
name of the University of Alaska or any unit thereof.
3.
"Affirmative Action Officer" refers to the regional affirmative action director or
designee.
4.
"Regional Personnel Human Resources Officer" refers to the MAU regional
human resources officer or personnel director, or manager or designee.
5.
"Working Environment" is defined as any place where the business of the
university is conducted in the name of the University of Alaska or any unit
thereof.
6.
"Investigator(s)" are defined as the person or persons who have the responsibility
and authority to conduct an investigation of formal discrimination complaints.
7.
"Advisors" are defined as individuals appointed from each MAU to advise
individuals regarding discrimination, provide information on whom to contact to
file a formal complaint, and outline alternatives for complaint resolution. The
president and the chancellors or their designees will appoint and make available a
list of university personnel to serve as discrimination prevention advisors for
individuals with questions or complaints involving discrimination. Advisors must
have knowledge of applicable law and Regents' Policy and University Regulation.
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General Personnel Policies/Regulations
C.
D.
Roles and Responsibilities
1.
The university administration is responsible for promoting a positive working and
learning environment where all persons are free to discuss any problems or
questions they may have concerning discrimination at the university, without fear
of intimidation or reprisal.
2.
All university employees are responsible for maintaining a positive working and
learning environment. Supervisors and faculty will promptly respond to
complaints of discrimination to determine what, if any, remedial action may be
warranted. In resolving these complaints, supervisors and faculty will seek advice
and guidance from the affirmative action officer or advisors. University
employees and students must cooperate fully with efforts to resolve complaints
brought to their attention.
Informal Resolution Process
The purpose of informal resolution is to educate and inform individuals of their offensive
behavior and to allow individuals the opportunity to voluntarily correct inappropriate
behavior without disciplinary action. Informal resolution will not generally have as an
outcome written reports or sanctions.
E.
1.
A complainant generally should try to inform the person directly that his or her
behavior is unwelcome, harmful or offensive. The complainant is also
encouraged to request assistance from other university employees, regional
personnelhuman resources officers, advisors or affirmative action officers in the
informal resolution of a complaint. These assistants will promptly attempt to
resolve the complaint through consultation and guidance of the complainant or, as
appropriate, mediation between all concerned parties. Successful resolution
efforts will be greatly facilitated by the timely reporting and handling of
complaints.
2.
Informal resolution may include informing the person about the behavior and/or
writing a letter concerning the behavior and requesting that the behavior be
stopped.
3.
If informal resolution efforts fail to achieve satisfactory results, or if informal
resolution is inappropriate in consideration of the circumstances or the egregious
nature of the alleged behavior, the complainant may file a formal complaint with
the affirmative action officer or the regional personnelhuman resources officer as
the initial action.
Formal Resolution Process
The formal resolution process is an administrative remedy which requires an
investigation and written findings. One or two investigators will be designated to
conduct a timely investigation to ensure an objective review of the allegations. The
04.02
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statements of the complainant, respondent and witnesses become part of a written record
which will be used for administrative review and action as necessary.
1.
Formal complaints alleging discrimination must include the following
information:
a.
b.
c.
2.
The names of the respondent and complainant.
Their affiliation to the university.
A description of the offensive behavior and circumstances, with dates if
known.
A formal complaint should also include the following information:
a.
b.
c.
A description of any attempts to resolve the problem informally.
An explanation of the impact on the complainant.
Specific remedies requested.
3.
The investigator(s), in determining whether the alleged conduct constitutes
discrimination, must give consideration, to the record as a whole, to the totality of
the circumstances, and where applicable to regulatory guidelines.
4.
A copy of the written findings will be distributed to the complainant, the
respondent, the respondent's supervisor, the regional personnelhuman resources
officer, the office of General Counsel and the Statewide Office of Human
Resources.
5.
Any person who:
a.
b.
c.
commits discrimination; or
fails to perform his or her investigatory or supervisory responsibilities; or
makes false claims or provides false testimony against another
will be subject to appropriate disciplinary action including, but not limited to,
verbal and written reprimands, probation, suspension or termination.
6.
When a preponderance of the evidence is found to substantiate a complaint,
disciplinary action may be taken. In determining what disciplinary action may be
appropriate, the extent to which the respondent knew or reasonably should have
known that his or her conduct was harmful or offensive will be considered.
Sanctions for conduct will be based upon all facts and circumstances of each case.
7.
A complainant or respondent who disputes the written findings of the
investigation report may request a formal review of the findings within 5 working
days of the release of the findings.
Such formal review will be conducted by one or more trained individuals
appointed by the chancellor or, in the case of statewide employees, the president.
The purpose of this review is to provide an opportunity for the chancellor or
04.02
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General Personnel Policies/Regulations
president to obtain an objective review of the investigation findings when those
findings are disputed by one of the involved parties.
The review will be scheduled as soon as practicable and the written
recommendation resulting from the review will be forwarded to the chancellor, or
in the case of a statewide employee, to the president for a decision.
8.
If a party is dissatisfied with a chancellor's decision, that party may request a
discretionary review by the president within 5 working days of the decision. If
the president elects to review a chancellor’s decision, the president's decision will
be the final decision of the university. If the president does not elect to accept a
review within 15 working days, the decision of the chancellor then becomes the
final decision of the university. In the case of Statewide Administration
employees, the decision of the president is the final decision of the university.
In either case, the final decision of the university is not grievable except as set
forth in this regulation and is subject to appeal within 30 days pursuant to Alaska
Appellate Rule 602(a)(2).
F.
Identity of Complainant
The university will not accept complaints when the complainant cannot be identified to
the investigative officer.
Complaints by individuals who refuse to be identified to the respondent will not be
accepted for investigation unless, in the discretion of the university, persistent and
pervasive allegations of discrimination warrant formal investigation. Whenever formal
disciplinary action may be contemplated, alleged offenders will be advised of the identity
of their accusers, the nature of the charges being brought against them, and the
circumstances of the alleged offense(s).
G.
Confidentiality
Investigators will make reasonable efforts to preserve the confidentiality of their
investigation and resolution efforts but cannot guarantee anonymity to complaining
parties or witnesses. University employees and students will make a reasonable effort to
protect the legitimate privacy interests of all concerned parties.
H.
04.02
Retaliation
1.
All persons have the right to complain about any conduct which they reasonably
believe constitutes discrimination. No university official may take disciplinary or
other adverse action against a person who genuinely but mistakenly believes
himself or herself to be discriminated against, even if the practices complained of
do not, in fact, constitute discrimination.
2.
Threats or other forms of intimidation or retaliation against complainants,
respondents, witnesses or investigators will constitute a violation of this
16
General Personnel Policies/Regulations
regulation and may be subject to separate administrative action, including
termination for cause.
I.
J.
K.
Bargaining Unit Employees
1.
If disciplinary action may result from an investigation of a bargaining unit
employee alleged to have engaged in discrimination, the employee has a right to
union representation during an investigatory interview with the employee.
2.
Bargaining unit employees who have been disciplined pursuant to this regulation
must resolve their disputes through the dispute resolution processes provided in
their collective bargaining agreement.
Training programs on discrimination will be designed to:
1.
provide employees with current information on federal and state law, Regents'
Policy, University Regulation, and administrative procedures; and
2.
demonstrate appropriate techniques for the resolution of discrimination
allegations.
Dissemination
The university administration will make reasonable efforts to inform members of the
university community regarding the prohibition against discriminating conduct. In
particular, this information will be communicated to new employees as an integral part of
their orientation experience.
(11-29-10)
R04.02.022. Sexual Harassment.
A.
B.
University Prohibition Against Sexual Harassment
1.
Sexual harassment is a form of employee or student misconduct which
undermines the integrity of the working and learning environment and will not be
tolerated on or at University of Alaska premises or functions.
2.
Subject to the constraints of Regents’ Policy, the broadest range of legally
permissible speech and expression will be tolerated in the learning environment,
student and scholarly publications, and at public forums open to public debate and
the exchange of ideas.
Definitions
1.
04.02
“Sexual Harassment” includes, but is not limited to, unwelcome sexual advances,
requests for sexual favors, or other verbal or physical or visual conduct of a
sexual nature where: [Addition complies with Alaska Human Rights Law ASCHR
18.80]
17
General Personnel Policies/Regulations
a.
submission to such conduct is made, either explicitly or implicitly, a term
or condition of an individual’s employment or education; or
b.
submission to or rejection of such conduct by an individual is used as the
basis for employment or academic decisions affecting that individual; or
c.
such conduct has the purpose or necessary effect of unreasonably
interfering with an individual’s work or creating a hostile, intimidating or
offensive working or learning environment; and
(1)
(2)
such conduct is known by the offender to be unwelcome, harmful
or offensive; or
a person of average sensibilities would clearly understand the
behavior or conduct is unwelcome, harmful or offensive. [Deletion
proposed by Anne Sakumoto.]
2.
“Learning Environment” is defined as the premises of the University of Alaska
system or any site where educational programs and activities are conducted in the
name of the University of Alaska or any unit thereof.
3.
“Affirmative Action Officer” refers to the regional affirmative action director or
designee.
4.
“Regional Personnel Human Resources Officer” refers to the MAU regional
human resources officer, or personnel director, or manager or designee.
5.
“Working Environment” is defined as any place where the business of the
university is conducted in the name of the University of Alaska or any unit
thereof.
6.
“Investigator(s)” are defined as the person or persons who have the responsibility
and authority to conduct an investigation of formal sexual harassment complaints.
7.
“Advisors” are defined as individuals appointed from each MAU to advise
individuals regarding sexual harassment, provide information on whom to contact
to file a formal complaint, and outline alternatives for complaint resolution.
The president and the chancellors or their designees will appoint and make
available a list of university personnel to serve as harassment prevention advisors
for individuals with questions or complaints involving sexual harassment.
Advisors must have knowledge of sexual harassment law and Regents’ Policy and
University Regulation.
C.
Roles and Responsibilities
1.
04.02
The university administration is responsible for promoting a positive working and
learning environment where all persons are free to discuss any problems or
18
General Personnel Policies/Regulations
questions they may have concerning sexual harassment at the university, without
fear of intimidation or reprisal.
2.
D.
All university employees are responsible for maintaining a positive working and
learning environment. Supervisors and faculty will promptly respond to
complaints of sexual harassment to determine what, if any, remedial action may
be warranted. In resolving sexual harassment complaints, supervisors and faculty
will seek advice and guidance from the affirmative action officer or harassment
prevention advisors. University employees and students must cooperate fully
with efforts to resolve complaints brought to their attention.
Informal Resolution Process
The purpose of informal resolution is to educate and inform individuals of their offensive
behavior and to allow individuals the opportunity to voluntarily correct inappropriate
behavior without disciplinary action. Informal resolution will not generally have as an
outcome written reports or sanctions.
1.
A complainant generally should try to inform the person directly that his or her
behavior is unwelcome, harmful or offensive. The complainant is also
encouraged to request assistance from other university employees, regional
personnel human resources officers, advisors or affirmative action officers in the
informal resolution of a complaint.
These assistants will promptly attempt to resolve the complaint through
consultation and guidance of the complainant or, as appropriate, mediation
between all concerned parties. Successful resolution efforts will be greatly
facilitated by the timely reporting and handling of complaints.
E.
2.
Informal resolution may include informing the person about the behavior and/or
writing a letter concerning the behavior and requesting that the behavior be
stopped.
3.
If informal resolution efforts fail to achieve satisfactory results, or if informal
resolution is inappropriate in consideration of the circumstances or the egregious
nature of the alleged behavior, the complainant may file a formal complaint with
the affirmative action officer or the regional personnel human resources officer as
the initial action.
Formal Resolution Process
The formal resolution is an administrative remedy which requires an investigation and
written findings. One or two investigators will be designated to conduct a timely
investigation to insure an objective review of the allegations. The statements of the
complainant, respondent and witnesses become part of a written record which will be
used for administrative review and action as necessary.
04.02
19
General Personnel Policies/Regulations
1.
2.
Formal complaints alleging sexual harassment must include the following
information:
a.
The names of the respondent and complainant.
b.
Their affiliation to the university.
c.
A description of the offensive behavior and circumstances.
A formal complaint should also include the following information:
a.
A description of any attempts to resolve the problem informally.
b.
An explanation of the impact on the complainant.
c.
Specific remedies requested.
3.
The investigator(s), in determining whether the alleged conduct constitutes sexual
harassment, must give consideration to the record as a whole, to the totality of the
circumstances, and to regulatory guidelines where applicable.
4.
A copy of the written findings will be distributed to the complainant, the
respondent, the respondent’s supervisor, the regional personnel human resources
officer, the office of General Counsel and the Statewide Office of Human
Resources.
5.
Any person who:
a.
commits sexual harassment; or
b.
fails to perform his or her investigatory or supervisory responsibilities; or
c.
makes false claims or provides false testimony against another
will be subject to appropriate disciplinary action including, but not limited to,
verbal and written reprimands, probation, suspension or termination.
6.
04.02
When a preponderance of the evidence is found to substantiate a complaint of
sexual harassment, disciplinary action may be taken. In determining what
disciplinary action may be appropriate, the extent to which the respondent knew
or reasonably should have known that his or her conduct was harmful or offensive
will be considered. Sanctions for conduct will be based upon all facts and
circumstances of each case. Coercive behavior, such as threats or promises that
academic or employment reprisals or rewards will follow the refusal or granting
of sexual favors, constitutes gross misconduct and provides just cause for
immediate termination.
20
General Personnel Policies/Regulations
7.
A complainant or respondent who disputes the written findings of the
investigation report may request a formal review of the findings within 5 working
days of the release of the findings. Such formal review will be conducted by one
or more trained individuals appointed by the chancellor or, in the case of
statewide employees, the president. The purpose of this review is to provide an
opportunity for the chancellor or president to obtain an objective review of the
investigation findings when those findings are disputed by one of the involved
parties.
The review will be scheduled as soon as practicable and the written
recommendation resulting from the review will be forwarded to the chancellor or
president for a decision.
8.
If a party is dissatisfied with a chancellor’s decision, that party may request a
discretionary review by the president within 5 working days of the decision. If
the president elects to review a chancellor’s decision, the president’s decision will
be the final decision of the university. If the president does not elect to accept a
review within 15 working days, the decision of the chancellor then becomes the
final decision of the university. In the case of Statewide Administration
employees, the decision of the president is the final decision of the university.
In either case, the final decision of the university is not grievable except as set
forth in this regulation and is subject to appeal within 30 days pursuant to Alaska
Appellate Rule 602(a)(2).
F.
Identity of Complainant
The university will not accept complaints when the complainant cannot be identified to
the investigative officer. Complaints by individuals who refuse to be identified to the
respondent will not be accepted for investigation unless, in the discretion of the
university, persistent and pervasive allegations of sexual harassment warrant formal
investigation. Whenever formal disciplinary action may be contemplated, alleged
offenders will be advised of the identity of their accusers, the nature of the charges being
brought against them, and the circumstances of the alleged offense(s).
G.
Confidentiality
Investigators will make reasonable efforts to preserve the confidentiality of their
investigation and resolution efforts but cannot guarantee anonymity to complaining
parties or witnesses. University employees and students will make a reasonable effort to
protect the legitimate privacy interests of all concerned parties consistent with their
obligation to inform the accused.
H.
Retaliation
1.
04.02
All persons have the right to complain about any conduct which they reasonably
believe constitutes sexual harassment.
No university official may take
disciplinary or other adverse action against a person who genuinely but
21
General Personnel Policies/Regulations
mistakenly believes himself or herself to be harassed, even if the practices
complained of do not, in fact, constitute sexual harassment.
2.
I.
J.
K.
Threats or other forms of intimidation or retaliation against complainants,
respondents, witnesses or investigators will constitute a violation of this
regulation and may be subject to separate administrative action, including
termination for cause.
Bargaining Unit Employees
1.
If disciplinary action may result from an investigation of a bargaining unit
employee alleged to have engaged in sexual harassment, the employee has a right
to union representation during an investigatory interview with the employee.
2.
Bargaining unit employees who have been disciplined pursuant to this regulation
must resolve their disputes through the dispute resolution processes provided in
their collective bargaining agreement.
Training programs on sexual harassment will be designed to:
1.
provide employees with current information on federal and state law, Regents’
Policy, University Regulation, and administrative procedures; and
2.
demonstrate appropriate techniques for the resolution of sexual harassment
allegations.
Dissemination
The university administration will make reasonable efforts to inform members of the
university community regarding the prohibition against sexually harassing conduct. In
particular, this information will be communicated to new employees as an integral part of
their orientation experience.
(11-29-10)
R04.02.024. Consensual Sexual Relationships.
A.
Faculty-Student Relationships
1.
Within the instructional context:
It is considered a serious breach of professional ethics for a member of the faculty
to initiate or acquiesce in a sexual relationship with a student who is enrolled in a
course being taught by the faculty member or whose academic work, including
work as a teaching assistant, is being supervised by the faculty member.
2.
04.02
Outside the instructional context:
22
General Personnel Policies/Regulations
Sexual relationships between faculty members and students occurring outside the
instructional context may lead to difficulties, particularly when the faculty
member and student are in the same academic unit or in units that are
academically allied; relationships that the parties view as consensual may appear
to others to be exploitative. Further, in such situations the faculty member may
face serious conflicts of interest and should be careful to distance himself or
herself from any decisions that may reward or penalize the student involved. [Ann
Sakumoto recommends deletion.]
B.
Supervisor-Employee Relationships
Consensual sexual relationships between supervisors and employees, including
circumstances where a staff member has authority or control over a student’s living or
learning environment, are prohibited.
It is a violation of the ethical obligation to the employee or student, to other employees or
students, to colleagues, and to the university for a staff member to fail to withdraw from
participation in activities or decisions that may reward or penalize an employee or student
with whom the staff member has or has had a sexual relationship.
C.
Complaint Procedure
Complaints alleging a violation of the Consensual Sexual Relationships regulation will be
handled in accordance with the regulation regarding sexual harassment.
(08-15-97)
R04.02.032. Definitions. [Paula Harrison proposed addition to be consistent with the change in
federal definitions.]
A.
Reasonable accommodation may include:
1. providing or modifying equipment or devices;
2. job restructuring;
3. part-time or modified work schedules;
4. reassignment to a vacant position;
5. adjusting or modifying examinations, training materials, or policies;
6. providing readers and interpreters;
7. making the workplace readily accessible to and usable by people with disabilities.
R04.02.037 Confidentiality [Paula Harrison proposed revision to be consistent with limited
legal exceptions to the ADA confidentiality requirement.]
04.02
23
General Personnel Policies/Regulations
A.
Exceptions to confidentiality:
1. supervisors and managers may be told about necessary restrictions on the work or
duties of the employee and about necessary accommodations;
2. first aid and safety personnel may be told if the disability might require emergency
treatment;
3. government officials investigating compliance with the ADA must be given relevant
information on request;
4. in accordance with state workers’ compendation laws, state second injury funds, or
workers’ compensation insurance carriers; and
5. medical information for insurance purposes.
R.04.02.039. Employee Financial Obligations to the University. [Jim Lynch and Donald
Smith proposed addition to regulation to correspond with their proposed addition to Policy. This
is currently R05.19, with small revisions.]
A.
The university shall notify the employee in writing of the amount of the obligation
claimed and request the employee to make acceptable arrangements for payment within
sixty (60) calendar days. The employee may file a grievance disputing the correctness of
the amount of the obligation claimed by the university.
B.
Failure to make acceptable arrangements for paying the obligations within sixty (60)
calendar days of the written notification, or subsequent failure to live up to such
arrangements, shall constitute just cause for termination of employment.
C.
By accepting employment or continuing employment with the university, all employees
are deemed to have authorized the deduction, from their final checks for salary and
benefits, of any amount owed to the university by the employee.
R04.02.040. Drug-Free Workplace [Changes proposed by Ardith Lynch unless otherwise
noted.]
Policy 04.02.040 regarding drug-free workplace prohibits the unlawful manufacture, distribution,
dispensing, possession, or use by an employee of a controlled substance in any workplace of the
university. The following steps will be taken to provide a drug-free workplace.
A.
Each major administrative unit (MAU) will publish and distribute to all employees a
statement notifying employees that the violation of such prohibition will subject them to
appropriate disciplinary action.
B.
Each MAU will establish a drug-free awareness program to inform employees about:
1.
04.02
The dangers of drug abuse in the workplace;
24
General Personnel Policies/Regulations
2.
The university's policy of maintaining a drug-free work-place; and
3.
The availability of drug counseling, rehabilitation and employee assistance
programs.
4.
The penalties that the university may impose for drug abuse violations occurring
in the workplace.
C.
Each employee will be responsible aAs a condition of employment to each employee
shall abide by the terms of P04.02.404 and this regulation and must notify the university
of any criminal drug statute conviction for a violation occurring in the workplace no later
than five days after such conviction.
D.
Within 30 days of the receipt of notice as prescribed in paragraph C. above or other
notification of such conviction tThe university will take one or more of the following
personnel actions against an employee who violates P04.02.404 or this regulation:
1.
Require the employee to participate satisfactorily in a drug abuse assistance or
rehabilitation program approved by the university.
2.
Place the employee on suspension as prescribed by Regents’ Policy regarding
corrective action. Impose a sanction up to and including termination for cause.
3.
Dismiss the employee under the provision of Regents’ Policy regarding
termination for cause.
Violations of policy or regulation which are also violations of federal or state law may be
referred to the appropriate agencies. In such situations, cases may proceed concurrently
at the university and in the criminal justice system.
E.
As a condition of employment, each employee shall notify the regional human resources
officer in writing of any conviction for a violation of a criminal drug statute occurring in
the workplace not later than five calendar days after such conviction.
1.
Within ten calendar days after the university learns of a conviction of an
employee who is engaged in the performance of an award of federal financial
assistance, the university shall give written notice to every federal agency on
whose award the convicted employee was working.
2.
Within 30 calendar days after the university learns of a conviction, the university
shall take personnel action as prescribed in Paragraph D. above.
(06-20-97)
R04.02.050. Employee Alcohol and Controlled Substances Testing [Paula Harrison
revisions; the university is required to comply with DOT 40 Title 49 Part 382 (particularly
382.107) Drug and Alcohol testing for FMCSA. The changes in this regulation reflect current
04.02
25
General Personnel Policies/Regulations
compliance with the above federal regulation. New regulations with an effective date of
02/18/12 for 382.201, 382.211, and 382.213 are included in the recommendations.]
A.
Definitions
For purposes of this regulation, the following definitions apply:
1.
"Alcohol" means the intoxicating agent in beverage alcohol, ethyl alcohol, or
other low molecular weight alcohols including methyl and isopropyl alcohol.
2.
"Alcohol use (or use alcohol)" means any consumption the drinking or
swallowing of any beverage, liquid mixture, or preparation, including any
medication, containing alcohol. [Complies with Part 382.107]
3.
"Alcohol concentration" (or “alcohol content”) is the alcohol in a volume of
breath expressed in terms of grams of alcohol per 210 liters of breath as indicated
by an evidential breath test. [Complies with Part 382.107]
4.
"Commerce" means
a. any trade, traffic or transportation within the jurisdiction of the United States
between a place in a state and a place outside of such state, including a place
outside of the United States and
b. trade, traffic, and transportation in the United States which affects any trade,
traffic, and transportation described in subsection paragraph 1) of this section
definition. [Complies with Part 382.107]
5.
6.
04.02
"Commercial motor vehicle" or "CMV" means a motor vehicle or combination of
motor vehicles used in commerce to transport passengers or property if the motor
vehicle [Complies with Part 382.107]
a.
has a gross combination weight rating of 26,001 or more pounds inclusive
of a towed unit with a gross vehicle weight rating of more than 10,000
pounds; or
b.
has a gross vehicle weight rating of 26,001 or more pounds; or
c.
is designed to transport 16 or more passengers, including the driver; or
d.
is of any size and is used in the transportation of materials found to be
hazardous for the purposes of the Hazardous Materials Transportation Act
(49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded
under federal hazardous materials regulations (49 CFR part 172, subpart
F). [Complies with the definition under Part 382.107]
"Confirmation (or confirmatory) drug test," in Controlled Substance testing, is
means a second analytical procedure performed on a urine specimen to identify
26
General Personnel Policies/Regulations
and quantify the presence of a specific drug or metabolite. that is independent of
the screening test and that uses a different technique and chemical principle from
that of the screening test in order to ensure reliability and accuracy. In alcohol
testing, it is a second test, following a screening test with a result of 0.02 or
greater, that provides quantitative data of alcohol concentration. [Complies with
the definition under Part 382.107]
7.
“Confirmation (or confirmatory) validity test” means a second test performed on a
urine specimen to further support a validity test result.
8.
“Confirmed drug test” means a confirmation test result received by an MRO from
a laboratory. [Complies with the definition under Part 382.107]
8.
"Covered Employee" or "Employee" means any University of Alaska employee
required to hold a CDL as a function of their employment. This includes for
purposes of pre-employment testing only, applicants and current employees
selected for employment in such a position. A Covered Employee may be offduty, on-duty, pre-duty or "on call" status.
9.
“Consortium/third party administrator (C/TPA)” means a service agent that
provides or coordinates one or more drug and/or alcohol testing services to DOTregulated employers. C/TPAs typically provide or coordinate the provision of a
number of such services and perform administrative tasks concerning the
operation of the employers’ drug and alcohol testing programs. This term
includes, but is not limited to, groups of employers who join together to
administer, as a single entity, the DOT drug and alcohol testing programs of its
members (e.g. having a combined random testing pool). C/TPAs are not
“employers” for purposes of this regulation. [Complies with the definition under
Part 382.107]
710.
"Controlled Substance" means marijuana, cocaine, opiates, amphetamines and
phencyclidine.
11.
“Designated employer representative (DER) is an individual identified by the
employer as able to receive communications and test results from service agents
and who is authorized to take immediate actions to remove employees from
safety-sensitive duties and to make required decisions in the testing and
evaluation processes. [Complies with the definition under Part 382.107. The
university is required to have a designated DER. This information is to be given
to all employees covered by the regulation.]
12.
“Disabling damage” means damage which precludes departure of a motor vehicle
from the scene of the accident in its usual manner in daylight after simple repairs.
a. Inclusions. Damage to motor vehicles that could have been driven, but
would have been further damaged if so driven.
b.
04.02
Exclusions.
27
General Personnel Policies/Regulations
(1) Damage which can be remedied temporarily at the scene of the accident
without special tools or parts.
(2) Tire disablement without other damage even if no spare tire is available.
(3) Headlight or taillight damage.
(4) Damage to turn signals, horn, or windshield wipers which make them
inoperative. [Complies with the definition under Part 382.107. Important for
determining applicable drug testing after an accident.]
13.
“DOT Agency” means an agency (or operating administration) of the United
States Department of Transportation administering regulations requiring alcohol
and/or drug testing. 49 CFR part 382 in accordance with part 40 is applicable to
the university.
914.
"Driver" means any Covered Employee person who operates a commercial motor
vehicle (CMV). This includes, but is not limited to: full-time, regularly employed
drivers, casual, intermittent or occasional drivers, temporary, part-time, or lease
drivers and independent owner-operator contractors. occasional drivers.
[Complies with Part 382.107]
10.
"Driving Time" means all time spent at the driving controls of a CMV in
operation.
15.
“Licensed medical practitioner” means a person who is licensed, certified, and/or
registered, in accordance with applicable Federal, State, local, or foreign laws and
regulations, to prescribe controlled substances and other drugs. [Complies with
382.107]
1116. "Medical Review Officer" is a person who is a licensed physician and who is
responsible for receiving and reviewing laboratory results generated by the
university's controlled substance testing program and evaluating medical
explanations for certain drug test results. who has knowledge of substance abuse
disorders and has appropriate medical training to interpret and evaluate a Covered
Employee's confirmed positive test result together with his/her medical history
and any other relevant biomedical information. [Complies with Part 40
Subsection G definition.]
12.
"Observer" a trained supervisor or other trained university official.
1317. "Performing a Ssafety-Ssensitive Ffunction" means a Covered Employee driver is
considered to be performing a Ssafety-Ssensitive Ffunction during any period in
which he or she is actually performing, ready to perform, or immediately
available to perform any Ssafety-Ssensitive Ffunctions. [Complies with 382.107]
18.
04.02
“Positive rate for random drug testing” means the number of verified positive
results for random drug tests conducted under this part plus the number of refusals
of random drug tests required by this part, divided by the total number of random
28
General Personnel Policies/Regulations
drug tests results (i.e., positives, negatives, and refusals). [Defined in part
382.107]
19.
“Refuse to submit (to an alcohol or controlled substances test)” means that a driver:
[Defined in part 382.107]
a. Fails to appear for any test (except a pre-employment test) within a reasonable
time, as determined by the university consistent with applicable DOT agency
regulations, after being directed to do so by the university. This includes the
failure of an employee to appear for a test when called by a C/TPA ; [Complies
with 40.61(a)]
b. Fails to remain at the testing site until the testing process is complete. Provided,
that an employee who leaves the testing site before the testing process commences
a pre-employment test is not deemed to have refused to test; [Complies with
40.63(c)]
c. Fails to provide a urine specimen for any drug test required by this regulation or
DOT agency regulations. Provided, that an employee who does not provide a
urine specimen because he or she has left the testing site before the testing process
commences for a pre-employment test is not deemed to have refused to test;
[Complies with 40.63c.]
d. In the case of a directly observed or monitored collection in a drug test, fails to
permit the observation or monitoring of the driver's provision of a specimen;
[Complies with 40.67(1) and 40.69(g).]
e. Fail to provide a sufficient amount of urine when directed, and it has been
determined, through a required medical evaluation, that there was no adequate
medical explanation for the failure; [Complies with 40.193(d)(2)]
f. Fail or declines to take a second test the employer or collector has directed the
driver to take;
g. Fail to undergo a medical examination or evaluation, as directed by the MRO
as part of the verification process, or as directed by the DER. In the case of a preemployment drug test, the employee is deemed to have refused to test on this
basis only if the pre-employment test is conducted following a contingent offer of
employment; [Complies with 40.193(d)]
h. Fail to cooperate with any part of the testing process (e.g., refuse to empty
pockets when so directed by the collector, behave in a confrontational way that
disrupts the collection process); or
i. Is reported by the MRO as having a verified adulterated or substituted test
result.
04.02
29
General Personnel Policies/Regulations
1420. "Safety-Ssensitive Ffunction" means all time from the time a driver begins to
work or is required to be in readiness to work until the time he/she is relieved
from work and all responsibility for performing work. Safety-sensitive functions
shall include:
a.
All time a Covered Employee is at an employer carrier or shipper plant,
terminal, facility, or other property, or on any public property, waiting to
be dispatched, unless the Covered Employee driver has been relieved from
duty by the Covered Employee's supervisoremployer.
b.
All time the Covered Employee is inspecting equipment as required by
DOT regulations or otherwise inspecting, servicing, or conditioning any
commercial motor vehicle CMV at any time.
c.
All time spent at the driving controls of a commercial motor vehicle in
operation. time as defined in the term driving time in this regulation.
d.
All time, other than driving time, in or upon any commercial motor
vehicleCMV except time spent resting in a sleeper berth as sleeper berth is
defined by DOT regulations.
e.
All time a Covered Employee is loading or unloading a vehicle, or
supervising or assisting in the loading or unloading of a CMV, attending a
CMV vehicle being loaded or unloaded, remaining in readiness to operate
the CMVvehicle, or in giving or receiving receipts for shipments loaded or
unloaded.
f.
All time spent by a Covered Employee performing the driver requirements
of DOT regulations relating to accidents.
gf.
All time spent by a Covered Employee repairing, obtaining assistance, or
remaining in attendance upon a disabled CMVcommercial motor vehicle.
[Complies with 382.107]
1521. "Screening test (or initial test)" means:,
a. In drug testing, a test to eliminate “negative” urine specimens from further
analysis or to identify a specimen that requires additional testing for the presence
of drugs. in controlled substance testing, is an immunoassay screen to eliminate
"negative" urine specimens from further analysis.
b. In alcohol testing, an analytic procedure to determine whether an employee
may have a prohibited concentration of alcohol in a breath or saliva specimen.
[Complies with 382.107]
22.
04.02
“Stand-down means the practice of temporarily removing an employee from the
performance of safety-sensitive functions based only on a report from a laboratory
to the MRO of a confirmed positive test for a drug or drug metabolite, a
30
General Personnel Policies/Regulations
adulterated test, or a substituted test, before the MRO has completed verification
of the test results. [Complies with 382.107]
1623. "Substance Abuse Professional" means a licensed physician or a licensed or
certified psychologist, social worker, employee assistance professional, a statelicensed or certified marriage and family therapist, or addiction drug and alcohol
counselor (certified by the National Association of Alcoholism and Drug Abuse
Counselors Certification Commission (NAADAC) or by the International
Certification Reciprocity Consortium/Alcohol and other Drug Abuse (ICRC), or
by the National Board for Certified Counselors, Inc., and Affiliates/Master
Addictions Counselor (NBCC)) with knowledge ofabout and clinical experience
in the diagnosis and treatment of alcohol and controlled substances-related
disorders. [Complies with Part 40 subpart O]
24.
B.
“Violation rate” for random alcohol testing means the number of 0.04 and above
random alcohol confirmation test results conducted under this part plus the
number of refusals of random alcohol tests required by this part, divided by the
total number of random alcohol screening tests (including refusals). [Complies
with 382.107]
Applicability
This regulation applies to all University of Alaskauniversity employees who are required
to hold a CDLcommercial driver’s license as a function of their university employment.
("Covered Employees").
C.
Prohibitions
It is a violation of this regulation for a Covered Employee to:
04.02
1.
No driver shall report for duty or remain on duty requiring the performance of
safety-sensitive functions while having an alcohol concentration of 0.04 or
greater.
No employer having knowledge that a driver has an alcohol
concentration of 0.04 or greater shall permit the driver to perform or continue to
perform safety-sensitive functions; report for or return to work within four hours
after using alcohol; . [Complies with 382.201 by removing “actual” between the
words “having” and “knowledge”. As updated 2.18.12.]
2.
On-duty use: No driver shall use alcohol while performing safety-sensitive
functions. No employer having actual knowledge that a driver is using alcohol
while performing safety-sensitive functions shall permit the driver to perform or
continue to perform safety-sensitive functions; [Complies with 382.205]
3.
Pre-duty use: No driver shall perform safety-sensitive functions within four hours
after using alcohol. The university, having actual knowledge that a driver has used
alcohol within four hours shall permit a driver to perform or continue to perform
safety-sensitive functions; [Complies with 382.207]
31
General Personnel Policies/Regulations
24.
No driver shall use alcohol on the job, including during breaks or meals;
35.
No driver shall possess alcohol on the job, including during breaks or meals;
[4. And 5. are not part of 382 but recommendation is to leave in regulation.]
have a confirmation test result indicating an alcohol concentration of 0.02 or
greater;
4.
04.02
56.
No driver required to take a post-accident alcohol test under this regulation shall
use alcohol for eight hours following the accident, or until the driver undergoes a
post-accident alcohol test, whichever occurs first. use alcohol within eight hours
following an accident or until the Covered Employee is tested, whichever occurs
first; [Complies with 382.209]
7.
No driver shall refuse to submit to a preemployment controlled substance test
required under DOT, post-accident alcohol or controlled substances test required
under DOT, a random alcohol or controlled substances test required under DOT, a
reasonable suspicion alcohol or controlled substances test required under DOT, or
a follow-up alcohol or controlled substances test required under DOT. The
university shall not permit a driver who refuses to submit to such tests to perform
or continue to perform safety-sensitive functions. [Complies with 382.211 as
amended (382.303, 382.305, 382.307, 382.309, 382.311)]
8.
No driver shall report for duty or remain on duty requiring the performance of
safety-sensitive functions when the driver uses any drug or substance, identified
in 21 CFR 1308.11 Schedule I. [Complies with 382.13 as amended.]
6.
report for duty or remain on duty when the Covered Employee is using or has
used any controlled substance (except when the use is pursuant to the instructions
of a physician who has advised the employee that the substance does not
adversely affect the employee's ability to safely perform a Safety-Sensitive
Function, including operating a Commercial Motor Vehicle (CMV);
9.
No driver shall report for duty or remain on duty requiring the performance of
safety-sensitive functions when the driver uses any non-Schedule I drug or
substance that is identified in the other Schedules in 21 CFR 1308 except when
the use is a licensed medical practitioner, as defined in this regulation, who is
familiar with the driver’s medical history and has advised the driver that the
substance will not adversely affect the driver's ability to safely operate a
commercial motor vehicle. The university may require a driver to inform the
employer of any therapeutic drug use.
7.
test positive for a controlled substance;
8.
refuse to submit to an alcohol or controlled substance test as required by federal
laws or regulations or this regulation.
32
General Personnel Policies/Regulations
10.
No supervisor or university official having actual knowledge that a driver has
used a controlled substance shall permit the driver to perform or continue to
perform a safety-sensitive function.
11.
No driver shall report for duty, remain on duty or perform a safety-sensitive
function, if the driver tests positive or has adulterated or substituted a test
specimen for controlled substances. No employer having knowledge that a driver
has tested positive or has adulterated or substituted a test specimen for controlled
substances shall permit the driver to perform or continue to perform safetysensitive functions. [Complies with 382.215]
If an Covered Eemployee engages in the conduct described above, the employee is
considered to have engaged in Pprohibited Cconduct, is immediately disqualified from
performing a Ssafety-Ssensitive Ffunction, including operating a CMVcommercial motor
vehicle, and is subject to disciplinary action as set forth in Section I of this regulation.
D.
Requirement for NoticeRequired Tests [Complies with 382.113]
A Covered Employee is required to submit to alcohol and controlled substance testing
under the circumstances set forth in this section. Before performing a each alcohol or
controlled substances test under this regulation, the trained supervisor or other trained
university official willshall notify the employee that the test is being performed pursuant
to the United States Department of Transportation (DOT) regulations. and at no cost to
the employee. The university shall not falsely represent that a test is administered as a
requirement of DOT regulations.
E.
Required Tests [Complies with 382.201-382.215]
1.
Pre-Employment Testing [Complies with 382.301]
For the purposes of pre-employment testing only, "Covered Employee"an
employee includes applicants and current employees selected for employment in
such a position or an employee who has been out of the random pool for a period
of 90 days or longer. Prior to the first time a Covered Employee driver performs
Ssafety-Ssensitive Ffunctions for the university, the employee will driver shall
undergo testing for alcohol and controlled substances. No Covered Employee
driver will be allowed to perform Ssafety-Ssensitive Ffunctions unless the
employee has been administered an alcohol test with a result indicating an alcohol
concentration less than 0.02 and has received a controlled substances test result
from the MRO or C/TPA indicating a verified negative test result for that driver.
The applicable regional personnel officeDER will obtain, pursuant to a Covered
Employee's driver’s consent, information on the employee's alcohol tests with a
concentration result of 0.04 or greater, positive controlled substances test results,
and refusals to be tested, within the preceding two years, which are maintained by
the employee's previous employers. This information must be obtained and
reviewed by the applicable regional personnel officeDER no later than 14
calendar days after the first time a Covered Employee driver performs Ssafety-
04.02
33
General Personnel Policies/Regulations
Ssensitive Ffunctions for the university, if it is not feasible to obtain the
information prior to the employeedriver performing Ssafety-Ssensitive
Ffunctions. A Covered Employee driver will not be allowed to perform SsafetySsensitive Ffunctions more than 14 days without obtaining the information.
A Covered Employee driver will not be allowed to perform Ssafety-Ssensitive
Ffunctions if the university obtains information showing an alcohol test with a
concentration of 0.04 or greater, or a verified positive controlled substances test
result, or refusal to be tested, unless the applicable regional personnel officeDER
obtains information on the employeedriver's subsequent Ssubstance Aabuse
Pprofessional evaluation and associated successful return to duty testing.
2.
Reasonable Suspicion Testing [Revisions to comply with 382.307.]
A Covered Employee will submit to an alcohol and/or controlled substance test
when a trained supervisor or other trained university official "Observer" has
reasonable suspicion to believe that the employee has engaged in Prohibited
Conduct, except for the conduct prohibited by section C.3. of this regulation. The
university shall require a driver to submit to an alcohol test when the university
believes the driver has violated the prohibitions of this regulation concerning
alcohol. The university's determination that reasonable suspicion exists to require
the driver to undergo an alcohol test must be based on specific, contemporaneous,
articulable observations concerning the appearance, behavior, speech or body
odors of the driver.
The university shall require a driver to submit to a controlled substances test when
the university has reasonable suspicion to believe that the driver has violated the
prohibitions of this regulation concerning controlled substances. The university’s
A determination that reasonable suspicion exists must be based on specific,
contemporaneous, articulable observations concerning the appearance, behavior,
speech or body odors of the employeedriver. The observations must be made
during, just preceding, or just after the period of the work day that the employee is
performing a Safety-Sensitive Function.
The observations may include
indications of the chronic and withdrawal effects of controlled substances. The
Observer must attempt to find another trained supervisor or other trained
university official to corroborate the observations in writing. The Observer must
then escort the employee to the designated collection or test site.
The required observations for alcohol and/or controlled substances reasonable
suspicion testing shall be made by a supervisor or university official who is
trained in accordance with this regulation. The person who makes the
determination that reasonable suspicion exists to conduct an alcohol test shall not
conduct the alcohol test of the driver.
Alcohol testing is authorized by this section only if the observations required by
by this regulation are made during, just preceding, or just after the period of the
work day that the driver is required to be in compliance. A driver may be directed
by the employer to only undergo reasonable suspicion testing while the driver is
04.02
34
General Personnel Policies/Regulations
performing safety-sensitive functions, just before the driver is to perform safetysensitive functions, or just after the driver has ceased performing such functions.
If an alcohol test required by this section regulation is not administered within
two hours following the reasonable suspicion determination, the Observer
university shall will prepare and maintain on file a record a report stating the
reasons the alcohol test was not timely administered. ; iIf the alcohol test is not
administered within eight hours following the reasonable suspicion determination,
the university shall cease attempts to administer and alcohol test and shall state in
the record there will be no further attempts to administer the test and the Observer
will prepare a report stating the reasons why the test was not timely administered.
The report(s) willshall be forwarded to the applicable regional personnel
officeDER.
Notwithstanding the absence of a reasonable suspicion alcohol test under this
regulation, no driver shall report for duty or remain on duty requiring the
performance of safety-sensitive functions while the driver is under the influence
of or impaired by alcohol, as shown by the behavioral, speech, and performance
indicators of alcohol misuse, nor shall the university permit the driver to perform
or continue to perform safety-sensitive functions, until:
a. An alcohol test is administered and the driver's alcohol concentration
measures less than 0.02; or
b. Twenty four hours have elapsed following the determination that there
is reasonable suspicion to believe that the driver has violated the
prohibitions concerning the use of alcohol.
Except as provided in this regulation, the university shall not take any action
against a driver based solely on the driver's behavior and appearance, with respect
to alcohol use, in the absence of an alcohol test.
A written record shall be made of the observations leading to an alcohol or
controlled substance reasonable suspicion test and signed by the supervisor or
university official who made the observation will be made by the Observer within
24 hours of the observed behavior or before the results of the controlled substance
tests are released, whichever is earlier.
If an Observer is unable to obtain a reasonable suspicion alcohol test the Covered
Employee may not remain on or return to duty if the employee appears to be
under the influence or impaired by alcohol as indicated by specific,
contemporaneous, articulable observations concerning the appearance, behavior,
speech or body odors of the employee. In this situation, the employee will only
be permitted to return to work when:
a.
04.02
an alcohol test shows a concentration of less than 0.02; or
35
General Personnel Policies/Regulations
b.
3.
24 hours have elapsed since the reasonable suspicion observations.
Post-Accident Testing [Revisions to comply with 382.303]
a. As soon as practicable following an accident involving a commercial motor
vehicle operating on a public road in commerce, the university shall test for
alcohol if each surviving driver, a Covered Employee whom was performing a
Safety-Sensitive Function with respect to the CMV must be tested:
a.
b.
there was a death involved; or
the employee received a citation for a moving traffic violation arising
from the accident.
(1) Who was performing safety-sensitive functions with respect to the
vehicle, if the accident involved the loss of human life; or
(2) Who receives a citation within eight hours of the occurrence under
state or local law for a moving traffic violation arising from the accident,
if the accident involved:
i.
Bodily injury to any person who, as a result of the injury,
immediately receives medical treatment away from the scene of
the accident; or
ii. One or more motor vehicles incurring disabling damage as a result
of the accident, requiring the motor vehicle to be transported
away from the scene by a tow truck or other motor vehicle.
b.
As soon as practicable following an occurrence involving a commercial
motor vehicle operating on a public road in commerce, the university shall
test for controlled substances for each of its surviving drivers:
(1)
(2)
Who was performing safety-sensitive functions with respect to the
vehicle, if the accident involved the loss of human life; or
Who receives a citation within thirty-two hours of the occurrence
under state or local law for a moving traffic violation arising from
the accident, if the accident involved:
i. Bodily injury to any person who, as a result of the injury,
immediately receives medical treatment away from the scene of
the accident; or
ii. One or more motor vehicles incurring disabling damage as a
result of the accident, requiring the motor vehicle to be
transported away from the scene by a tow truck or other motor
vehicle.
c.
04.02
The following table notes when a post-accident test is required to be
conducted by paragraphs (A)(1), (A)(2), (B)(1), and (B)(2) of this section:
36
General Personnel Policies/Regulations
Table
Type of accident involved
Citation issued to the
CMV commercial
motor vehicle driver
Test must be
performed by
employer
i. Human fatality
YES
NO
YES
YES
ii. Bodily injury with immediate medical
treatment away from the scene
YES
NO
YES
NO
iii. Disabling damage to any motor
vehicle requiring tow away
YES
NO
YES
NO
d.
If an alcohol test is not administered within two hours following the
accident, the Covered Employee's supervisor university will shall prepare
and maintain on file a record a report stating the reasons why the test was
not timely administered. If an alcohol test is not administered within eight
hours following the accident, there will be no further the university shall
cease attempts to administer the an alcohol test and the Covered
Employee's supervisor will shall prepare and maintain on file a recorda
report stating the reasons why the test was not timely administered.
Records will be submitted to FMCSA upon request.
e.
If a controlled substance test is not administered within 32 hours following
the accident, there will be no further the university shall cease attempts to
administer the test and the Covered Employee's supervisor will shall
prepare and maintain on file a recorda report stating the reasons why the
test was not timely administered. Records will be submitted to FMCSA
upon request. The report(s) will be forwarded to the applicable regional
personnel office.
A Covered Employee driver who is subject to post-accident testing
mustshall remain readily available for thesuch testing, or willmay be
deemed by the university to have refused to submit for testing. Nothing in
this section shall be construed to require the delay of necessary medical
attention for injured people following an accident or to prohibit a driver
from leaving the scene of an accident for the period necessary to obtain
assistance in responding to the accident, or to obtain necessary emergency
medical
care.
[Revisions
to
comply
with
382.303]
f.
The applicable regional personnel office will ensure that each Covered
Employee receives university shall provide drivers with necessary postaccident information, procedures and instructions prior to performing a
Safety-Sensitive Function, including the driver operating a
CMVcommercial motor vehicle, so that the employee is drivers will be
able to comply with the requirements of this Ssection.
(1) The results of a breath or blood test for the use of alcohol, conducted
by Federal, State, or local officials having independent authority for the
test, shall be considered to meet the requirements of this section, provided
04.02
37
General Personnel Policies/Regulations
such tests conform to the applicable federal, state or local alcohol testing
requirements, and that the results of the tests are obtained by the
university.
(2) The results of a urine test for the use of controlled substances,
conducted by Federal, State, or local officials having independent
authority for the test, shall be considered to meet the requirements of this
section, provided such tests conform to the applicable Federal, State or
local controlled substances testing requirements, and that the results of the
tests are obtained by the university.
g.
Exception. This section does not apply to: [Revisions to comply with
382.303]
(1) An occurrence involving only boarding or alighting from a stationary
motor vehicle; or
(2) An occurrence involving only the loading or unloading of cargo; or
(3) An occurrence in the course of the operation of a passenger car or a
multipurpose passenger vehicle by the university unless the motor vehicle
is transporting passengers for hire or hazardous materials of a type and
quantity that require the motor vehicle to be marked.
h.
4.
As soon as practicable following an accident requiring post-accident test,
the supervisor of the driver who was (or will be) tested must report the
accident to the applicable regional human resources office. Test results
that are positive for alcohol and/or controlled substances must be reported
as soon as practicable to the statewide risk services office. [Julie Baecker
proposed addition.]
Random Testing [Revisions to comply with 382.305]
a.
Every driver shall submit to random alcohol and controlled substance testing
as required in this section. The random testing of Covered Employeesdrivers
will be unannounced, spread reasonably throughout the year, and will be
conducted to assure that all Covered Employeesdrivers have an equal chance
of being tested. The Covered Employeesdrivers to be tested will be randomly
selected using a scientifically valid method.
The minimum annual percentage rate for random alcohol testing is 25 shall
be 10 percent of the average number of Covered Employeesdriver positions
or such other rate as may be set annually by the Federal Highway
Administration. The minimum annual percentage rate for random controlled
substances testing is shall be 50 percent of the average number of Covered
Employeesdriver positions or such other rate as may be set annually by the
Federal HighwayMotor Carrier Safety Administration.
04.02
38
General Personnel Policies/Regulations
(1) The selection of drivers for random alcohol and controlled substances
testing shall be made by a scientifically valid method, such as a random
number table or a computer-based random number generator that is
matched with drivers' Social Security numbers, payroll identification
numbers, or other comparable identifying numbers.
(2) Each driver selected for random alcohol and controlled substances
testing under the selection process used, shall have an equal chance of
being tested each time selections are made.
(3) Each driver selected for testing shall be tested during the selection
period.
(4) The university shall ensure that random alcohol and controlled
substances tests conducted under this part are unannounced.
(5) The university shall ensure that the dates for administering random
alcohol and controlled substances tests conducted under this part are
spread reasonably throughout the calendar year.
(6) The university shall require that each driver who is notified of
selection for random alcohol and/or controlled substances testing proceeds
to the test site immediately; provided, however, that if the driver is
performing a safety-sensitive function, other than driving a commercial
motor vehicle, at the time of notification, the employer shall instead
ensure that the driver ceases to perform the safety-sensitive function and
proceeds to the testing site as soon as possible.
(7) Upon request by a supervisor, a Covered Employee must immediately
proceed to the designated collection or test site.
A Covered
Employeedriver mayshall only be tested for alcohol while the
employeedriver is performing a Ssafety-Ssensitive Ffunction, just before
the employee is to perform a Ssafety-Ssensitive Ffunction, or just after the
employeedriver has ceased performing such function.
5.
Return-To-Duty Testing [Complies with 382.30, which complies with 49CFR part
40, subpart O, 40.287.]
When a Covered Employeedriver has engaged in Pprohibited Cconduct, the
employee will be permitted to return to work in accordance with the following
proceduresdismissed for cause or provided a last chance agreement at the sole
discretion of the university [Above change to Regulation proposed by Don
Smith.]
a.
04.02
The employee will receive a mandatory referral to the university's
Employee Assistance Program for an evaluation by a Substance Abuse
Professional who will determine what assistance, if any, the employee
39
General Personnel Policies/Regulations
needs in resolving problems associated with alcohol misuse and controlled
substance use; and
The university will provide to each employee including an applicant or
new employee who violates a DOT drug and alcohol regulation a listing of
Substance Abuse Professional’s (SAP) readily available to the employee
with names, addresses, and phone numbers. [Paula Harrison Comment:
DER needs to prepare a list of providers throughout the state where we
have ‘drivers’ covered under this regulation. (required by 382 even if the
employee is terminated).]
b.
The university is not required to provide a SAP evaluation or any
subsequent recommended education or treatment for an employee who has
violated a DOT drug and/or alcohol regulation. [Paula Harrison comment:
This complies with 382 and basically means the university is not obligated
to pay for an evaluation.]
c.
If the university enters into a last chance agreement with the employee and
offers the employee an opportunity to return to a DOT safety-sensitive
duty following a violation, the university must, before the employee again
performs that duty, ensure that the employee receives an evaluation by a
SAP meeting the requirements of §40.281 and that the employee
successfully complies with the SAP's evaluation recommendations.
[Complies with 40.289.]
Payment for SAP evaluations is the responsibility of the employee.
6.
b.
If the employee is identified as needing assistance and a rehabilitation
program has been prescribed, the employee must be evaluated by the
Substance Abuse Professional to determine that the employee has properly
followed the recommended rehabilitation program; and
cd.
The employee must undergo a return-to-duty alcohol test with a result
indicating an alcohol concentration of less than 0.02 or, if the Pprohibited
Cconduct involved a controlled substance, a return-to-duty controlled
substance test with a result indicating a verified negative result for
controlled substance use.
Follow-Up Testing [Complies with 382.311 which complies with 49 CFR part 40,
Subpart O 40.307]
For each employee who has committed a DOT drug or alcohol regulation
violation and who seeks to resume employment with safety sensitive functions,
the university must establish a written follow-up testing plan. The plan is
established once the university has determined that the employee has successfully
complied with a SAP’s recommendation for education and/or treatment. The SAP
must provide a copy of the written plan to the DER.
04.02
40
General Personnel Policies/Regulations
Following a determination by a Substance Abuse Professional that a Covered
Eemployee is in need of assistance in resolving problems associated with alcohol
misuse and/or use of controlled substances, the Covered Eemployee is subject to
unannounced follow-up alcohol and/or controlled substance testing. The number
and frequency of the tests will be determined by the Substance Abuse
Professional, but at a minimum will consist of at least six unannounced follow-up
tests in the first twelve months of safety-sensitive duty following the employee's
return to safety-sensitive functions. The employer shall establish the specific
dates for testing. following the employee's return to duty and The unannounced
follow-up testing may continue for up to five years. Follow up testing for alcohol
may only be conducted while the employee is performing a safety-sensitive
function, just before the employee is to perform a safety-sensitive function, or just
after the employee has ceased performing such function.
E.
University Notification Obligations [Complies with Part 382.411.]
1.
04.02
The applicable regional personnel officeDER will:
a.
notify a Covered Employeedriver of the results of a pre-employment
controlled substance test conducted under this part, if the employeedriver
requests such results within 60 calendar days of being notified of the
disposition of the employment application;
b.
notify a Covered Employeedriver of the results of random, reasonable
suspicion and post-accident tests for controlled substances conducted
under this regulation if the test results are verified positive;
c.
inform the Covered Employee which controlled substance or substances
were verified as positive;
dc.
the designated employer representative shall make reasonable efforts to
contact and request each persondriver who submitted a specimen under the
university's program, regardless of the person'sdriver’s employment status,
to contact and discuss the results of the controlled substances test with a
Medical Review Officer when the Medical Review Officer has been
unable to contact the persondriver and willshall immediately notify the
Medical Review Officer that the persondriver has been notified to contact
the Medical Review Officer within twenty-fourseventy-two (72) hours;
[complies with 382.411]
ed.
provide information on contacting alcohol and/or Substance Abuse
Professionals, counseling and treatment programs; andshall request
alcohol and controlled substances information from previous employers;
fe.
shall ensure that each Covered Employeedriver receives educational
materials that explain the requirements of this Rregulation, and the
university’s policies and procedures with respect to meeting these
requirements. the meaning of alcohol and controlled substance misuse,
41
General Personnel Policies/Regulations
treatment programs available and alcohol and controlled substance testing
procedures. Covered EmployeesDrivers will acknowledge in writing
receipt of such information. [Complies with 382.601]
f.
shall include detailed discussion of the following in the materials to be
made available to drivers:
(1) The identity of the person designated by the university to answer
driver questions about the materials;
(2) The categories of drivers who are subject to these regulations;
(3) Sufficient information about the safety-sensitive functions performed
by those drivers to make clear what period of the work day the driver is
required to be in compliance with this regulation;
(4) Specific information concerning driver conduct that is prohibited by
this regulation
04.02
g.
shall provide written notice to representatives of employee organizations
of the availability of this information. [Complies with 382.601]
h.
The circumstances under which a driver will be tested for alcohol and/or
controlled substances under this part, including post-accident testing under
these regulations;
i.
The procedures that will be used to test for the presence of alcohol and
controlled substances, protect the driver and the integrity of the testing
processes, safeguard the validity of the test results, and ensure that those
results are attributed to the correct driver, including post-accident
information, procedures and instructions required by this regulation;
j.
The requirement that a driver submit to alcohol and controlled substances
tests administered in accordance with this regulation;
k.
An explanation of what constitutes a refusal to submit to an alcohol or
controlled substances test and the consequences;
l.
The consequences for drivers found to have violated regulation, including
the requirement that the driver be removed immediately from safetysensitive functions, and the procedures under this regulation;
m.
The consequences for drivers found to have an alcohol concentration of
0.02 or greater but less than 0.04;
n.
Information concerning the effects of alcohol and controlled substances
use on an individual's health, work, and personal life; signs and symptoms
of an alcohol or a controlled substances problem (the driver's or a co42
General Personnel Policies/Regulations
worker's); and available methods of intervening when an alcohol or a
controlled substances problem is suspected, including confrontation,
referral to any employee assistance program and or referral to
management. [Complies with 382.601]
o.
2.
F.
Each regional human resources office shall ensure that each driver signs a
statement certifying that he or she has received a copy of these materials
described in this section. Each regional human resources office shall
forward the original signed certificate to the DER who will maintain the
original of the signed certificate and provide a copy of the certificate to the
driver. [Comment by Paula Harrison: All drug and alcohol records will be
maintained by the SW DER, per DS.]
Before performing an alcohol or controlled substance test, the trained supervisor
or other trained university official will notify the Covered Employee that will be
tested of the nature of the test and the reasons for the test. The notice can either
be written or oral.
Testing Procedures
The university shall ensure that all alcohol or controlled substances testing conducted
under these regulations complies with the procedures set forth in DOT regulations 49
CFR Part 40. [Complies with 382.105 (provisions of part 40 that address alcohol or
controlled substances testing are applicable to the university)]
1.
Alcohol
Tests will be conducted under the guidance of a Breath Alcohol Technician
selected by the university and in accordance with DOT regulations at one or more
designated testing sites.
The site(s) will afford privacy to the individual being tested. If the result of an
initial test is an alcohol concentration of less than 0.02, no further testing is
required and the results are transmitted to the applicable regional personnel office
DER in a confidential manner.
If the result of an initial test is an alcohol concentration of 0.02 or greater, a
confirmation test will be performed within twenty minutes. The results of an
initial test and the confirmation test are printed on the breath alcohol test forms,
signed by both the Breath Alcohol Technician and the Covered Employeedriver,
and transmitted to the applicable regional personnel office DER in a confidential
manner. Should a breath test show an alcohol concentration of 0.02 or greater, a
blood alcohol test may be offered to the Covered Employee as an option, although
not required.
2.
04.02
Controlled Substances
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DOT regulations require testing for marijuana, cocaine, opiates, amphetamines
and phencyclidine. Tests for these substances will be conducted under the
guidance of the Medical Review Officer selected by the university and in
accordance with DOT regulations at one or more designated collection sites.
Collection of urine samples will allow individual privacy unless there is a reason
to believe that a particular individual may alter or substitute the specimen. It is a
violation of federal law and these Regulations to adulterate or dilute a specimen
during the collection procedure.
Test results are given to the Medical Review Officer for analyzing and reporting
to the applicable regional personnel office DER.
G.
Employee Refusal to Submit to Testing a Required Alcohol or Controlled Substance Test
[Complies with 382.211, 382.301,382.303, 382.305, 383.307, 382.311, 382.309]
Any Covered Employee who No driver shall refuses to submit to a pre-employment
controlled substance test, a post-accident required alcohol or controlled substance test, a
random alcohol or controlled substance test, a reasonable suspicion alcohol or controlled
substance test, a return to duty alcohol or controlled substance test, or a follow-up alcohol
or controlled substance test. The university shall not permit a driver who refuses to
submit to such tests to perform or continue to perform safety-sensitive functions. The
driver will be immediately removed from duty and such refusal will be treated as a
positive test. Failure to provide adequate breath for testing when required without a valid
medical explanation, failure to remain available for post-accident testing, failure to
provide adequate urine for testing without a valid medical explanation, engaging in
conduct that obstructs the testing process, or failure to sign the alcohol testing form
constitutes a refusal to submit to testing.
H.
If an Employee Tests Positive
When a driver has engaged in prohibited conduct, the employee will be dismissed for
cause or provided a last chance agreement at the sole discretion of the university.
[Regulation change recommended by Don Smith.]
If a Covered Employee has an alcohol concentration of 0.02 or greater in a confirmation
test or tests positive for a controlled substance the employee is immediately disqualified
from performing Safety-Sensitive Functions, including operating a CMV. The employee
will also be subject to return-to-duty testing and disciplinary action as outlined in these
regulations, and may be subject to follow-up testing.
I.
Disciplinary Action
1.
04.02
DOT regulations establish prohibited concentrations of alcohol and controlled
substances that may be in a Covered Employee's system while the Covered
Employee is performing a Safety-Sensitive Function and also establish other
prohibited behavior for a Covered Employee. DOT regulations also establish
certain minimum penalties for a Covered Employee who has a test result which
exceeds the prohibited concentration amounts or who has engaged in prohibited
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behavior. In general, these penalties include i) prohibitions on driving a CMV for
a period of time following the prohibited behavior (with the length of time
increasing as the number of instances of prohibited behavior increase), ii) referral
to a Substance Abuse Professional, and iii) return to duty and follow up testing.
An employer may, however, adopt stricter penalties.
2.
3.
JI.
In addition to the minimum penalties established by DOT regulations, the
following disciplinary action will be imposed:
a.
Covered Employees who test positive for controlled substances, who
refuse to take a test or whose confirmation test result shows an alcohol
concentration of 0.04 or greater will be considered to have engaged in
behavior constituting grounds for dismissal for cause.
b.
Covered Employees who engaged in other forms of Prohibited Conduct
the first time will be relieved of duty without pay for the remainder of the
employee's work day and for all of the next scheduled work day. For the
second instance of Prohibited Conduct, the employee will be suspended
for forty duty hours without pay. The third instance of Prohibited Conduct
will constitute grounds for dismissal for cause.
c.
Other violations of this regulation not described in a) and b) above will be
dealt with in accordance with applicable policy, regulation or procedures.
The disciplinary action imposed by this section on a Covered Employee will be in
addition to any other penalties that may be imposed for violations of state or
federal laws or regulations pertaining to drivers of CMV's or holders of CDL's.
Access to Test Results
Except as required by law, no information about specific alcohol and controlled
substance testing will be released by the university to outside parties. A Covered
Employeedriver is entitled, upon written request, to obtain copies of any records
pertaining to the employee's use of alcohol or controlled substances, including any
records pertaining to the employee's alcohol or controlled substances test results.
KJ.
Records Retention [Complies with 382.401]
The applicable regional personnelhuman resources office willshall maintain the following
records of its alcohol misuse and controlled substances use prevention programs. The
records willshall be maintained in a secure location with controlled access:
1.
Five Year Record Retention
a. Rrecords of any employeedriver alcohol test results indicating an alcohol
concentration of 0.02 or greater;
b. records of driver verified positive controlled substance test results;
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General Personnel Policies/Regulations
c. documentation of refusals to take required alcohol and/or controlled substance
tests;
d. documentation of Covered Employeedriver evaluations and referrals;
e. equipment calibration documentation;
f. records related to the administration of the alcohol and controlled substances
testing programs; and
g. a copy of the each annual calendar year summary required by DOT regulations.
2.
Two Year Record Retention
Records related to the alcohol and controlled substances collection process and
training.
3.
One Year Record Retention
Records of any negative and canceled controlled substance test results and alcohol
tests results with a concentration of less than 0.02.
4. Indefinite Record Retention
Records related to the education and training of breath alcohol technicians, screening test
technicians, supervisors, and drivers shall be maintained by the university while the
individual performs the functions which require the training and for two years after
ceasing to perform those functions.
5. Types of Records
The following specific types of records shall be maintained. “Documents generated” are
documents that may have to be prepared under a requirement of DOT regulations. If the
record is required to be prepared, it must be maintained.
1. Records related to the collection process:
a. Collection logbooks, if used;
b. Documents relating to the random selection process;
c. Calibration documentation for evidential breath testing devices;
d. Documentation of breath alcohol technician training;
e. Documents generated in connection with decisions to administer
reasonable suspicion alcohol or controlled substances tests;
f. Documents generated in connection with decisions on post-accident
tests;
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General Personnel Policies/Regulations
g. Documents verifying existence of a medical explanation of the
inability of a driver to provide adequate breath or to provide a urine
specimen for testing; and
h. A copy of each annual calendar year summary as required by DOT
regulations.
2. Records related to a driver's test results:
a. The university's copy of the alcohol test form, including the results of
the test;
b. The university's copy of the controlled substances test chain of
custody and control form;
c. Documents sent by the MRO to the university, including those
required by DOT regulations;
d. Documents related to the refusal of any driver to submit to an alcohol
or controlled substances test required by this part;
e. Documents presented by a driver to dispute the result of an alcohol or
controlled substances test administered; and
f. Documents generated in connection with verifications of prior
employers' alcohol or controlled substances test results that the
employer must obtain in connection with the exception contained in
regulation and must obtain as required by regulation.
g. Records related to other violations.
h. Records related to evaluations:
i.
(1) Records pertaining to a determination by a substance
abuse professional concerning a driver's need for
assistance; and
(2) Records concerning a driver's compliance with
recommendations of the substance abuse professional.
3. Records related to education and training:
a. Materials on alcohol misuse and controlled substance use awareness,
including a copy of the university's policy on alcohol misuse and
controlled substance use;
b. Documentation of compliance with the requirements of DOT
regulations, including the driver's signed receipt of education
materials;
c. Documentation of training provided to supervisors for the purpose of
qualifying the supervisors to make a determination concerning the
need for alcohol and/or controlled substances testing based on
reasonable suspicion;
(1) Documentation of training for breath alcohol
technicians as required; and
(2) Certification that any training conducted complies with
the DOT requirements for such training.
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4. Administrative records related to alcohol and controlled substances
testing:
a. Agreements with collection site facilities, laboratories, breath
alcohol technicians, screening test technicians, medical review
officers, consortia, and third party service providers;
b. Names and positions of officials and their role in the university's
alcohol and controlled substances testing program(s);
c. Semi-annual laboratory statistical summaries of urinalysis
required by DOT and [Complies with 40.111(a)]
d. The university's alcohol and controlled substances testing policy
and procedures.
5. Location of Records:
a. All records required shall be maintained as required with DOT
regulation and shall be made available for inspection at the
university's principal place of business within two business days
after a request has been made by an authorized representative of
the Federal Motor Carrier Safety Administration.
b. The Statewide Office of Human Resources The Designated
Employer Representative will provide the regional personnel
human resources offices with a summary of additional records
required to be maintained by DOT regulations. The regional
personnel human resources offices will be responsible for
maintaining the additional records.
L.
Training for Supervisors [Comply with 382.603]
The university shall ensure that Aall supervisors persons designated to supervise drivers
Covered Employees and other university officials and designated by the applicable
chancellor to make reasonable suspicion observations will receive at least 60 minutes of
training on alcohol misuse and an additional 60 minutes of training on controlled
substances use. This training will be used by the supervisors to assist them in
determining determine whether reasonable suspicion exists to require an employee a
driver to undergo testing. The training will cover shall include the physical, behavioral,
speech and performance indicators of probable alcohol misuse and use of controlled
substances. It will also cover available methods of intervening when and alcohol or a
controlled substances problem is suspected, including confrontation, referral to the
Employee Assistance Program and/or referral to a higher management authority.
Recurrent training is not required.
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General Personnel Policies/Regulations
M.
Self-ReportingEmployee Admission of Alcohol and Controlled Substances Use
[Complies with 382.121]
A Covered Employee who self reports alcohol misuse or controlled substance use and
requests university assistance will be immediately referred for treatment to a Substance
Abuse Professional.
Within 10 working days, the employee must provide proof to the employee's supervisor
of having undergone assessment screening. The proof must contain the treatment
recommendations of the Substance Abuse Professional.
1. Employees who admit to alcohol misuse or controlled substances use are not subject to
the referral, evaluation and treatment requirements of this policy, provided that:
a. The admission is in writing and in compliance with the university voluntary
self-identification program;
b. The driver does not self-identify in order to avoid testing under the
requirements of the program;
c. The driver makes the admission of alcohol misuse or controlled substances use
prior to performing a safety sensitive function (i.e., prior to reporting for duty);
and
d. The driver does not perform a safety sensitive function until the university is
satisfied that the employee has been evaluated and has successfully completed
education and/or treatment requirements in accordance with the self-identification
program guidelines.
2. Self-identification Program:
a. The university will not take adverse action against an employee making a
voluntary admission of alcohol misuse or controlled substances use within the
parameters of this program and paragraph(A) of this section;
b. The university will allow the employee ten (10) working days to seek
evaluation, education or treatment to establish control over the employee's drug or
alcohol problem and provide proof to the DER and supervisor of having
undergone assessment screening. The proof must contain the treatment
recommendations of the Substance Abuse Professional.
c. The university will permit the employee to return to safety sensitive duties
only upon successful completion of an educational or treatment program, as
determined by a drug and alcohol abuse evaluation expert, i.e., employee
assistance professional, substance abuse professional, or qualified drug and
alcohol counselor;
d. The university will ensure that:
04.02
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General Personnel Policies/Regulations
(1) Prior to the employee participating in a safety sensitive function, the
employee shall undergo a return to duty test with a result indicating an
alcohol concentration of less than 0.02; and/or
(2) Prior to the employee participating in a safety sensitive function, the
employee shall undergo a return to duty controlled substance test with a
verified negative test result for controlled substances use; and
5. At least monthly, the employee will furnish the DER and supervisor with proof
of their continuing participation in the recommended treatment program until
completed.
6.
Reoccurrences of alcohol misuse or controlled substance use will be subject
to disciplinary action up to and including the termination of employment.
(06-20-97)
R04.02.060. Employer Sponsored Petitions for Foreign Nationals [Changes in this
regulation are recommended by Ardith Lynch. This revision of regulation was approved
in 2009 and signed by the President but has never been included in the online version of
the regulations.]
A.
Nonimmigrant Visa Petitions
The University of Alaska (UA)university may choose to sponsor nonimmigrant visa
petitions for persons who are not United States citizens or permanent residents and are
hired in a UA university position in the following cases:
1.
Exchange visitors (as defined by the Department of State) in a teaching or
research non-tenure track position at a Department of State authorized MAU.
2.
Foreign nationals in a teaching or research position that requires a Ph.D. or
terminal degree within their profession, including post-docs.
3.
Foreign nationals in an information technology (IT) position.
4.
Foreign nationals from Canada or Mexico in a position listed on the NAFTA
Professional Job Series List produced by the Department of Homeland Security
(DHS).
5.
Exceptions to the above Other foreign nationals as authorized by the
president/chancellors or a designee after consultation with the MAU or SW
statewide office with expertise in employer sponsored nonimmigrant visa.
Sponsorship of an employer sponsored nonimmigrant visa petition includes gathering
required information and documents, working with departments on processes and
procedures, and facilitating the filing of Labor Condition Application if required.
Sponsorship of an employer sponsored nonimmigrant visa petition does not obligate UA
04.02
50
General Personnel Policies/Regulations
the university to finance any costs associated with the petition, except as provided by
federal or university regulation. Sponsorship of an employer sponsored nonimmigrant
visa petition by the university may be withdrawn or terminated at any time.
B.
Permanent Resident Petitions
The University of Alaska university may choose to sponsor permanent resident petitions
based on employment upon the recommendation of the director or dean in the following
cases:
1.
Foreign nationals who are currently employed at UA the university in a regular,
benefit-eligible teaching or research position that requires a Ph.D. or terminal
degree within their profession.
2.
Foreign nationals who are currently employed at UA the university in an regular,
benefit-eligible information technology (IT) position.
3.
Exceptions to the above A foreign national who has been offered a research
position considered “permanent employment” by the United States Department of
Labor and as authorized by the president/, chancellors or a designee after
consultation with the MAU or SWstatewide office with expertise in employer
sponsored permanent resident petitions.
“Permanent employment” as defined in 8 CFR 204.5(i)(2) for a research position
means either tenured , tenure track, or for a term of indefinite or unlimited
duration, and in which the employee will ordinarily have an expectation of
continued employment unless there is a good cause for termination. Post
doctorate positions do not qualify as permanent employment. Term funded
positions do not qualify as permanent employment unless the department can
demonstrate the intent to continue to seek funding and a reasonable expectation
that funding will continue, such as demonstrated prior renewals for extended
long-term research projects.
Sponsorship of an employer sponsored permanent resident petition includes gathering
required information and documents, working with departments on processes and
procedures, and facilitating the filing of Labor Certification if required. Sponsorship of
an employer sponsored permanent resident petition does not obligate UAthe university to
finance any costs associated with the petition, except as provided by federal or university
regulation. Sponsorship of an employer sponsored permanent resident petition may be
terminated or withdrawn at any time.
(08-03-09)
R04.02.070 Employee Work Activity Outside of Alaska
This regulation applies to employees who perform work outside the State of Alaska for a total of
more than 30 work days in any calendar year.
.
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General Personnel Policies/Regulations
A. All assignments outside the State of Alaska require advance written approval of the
appropriate Dean or Director, regional human resources office, and Statewide Office
of Human Resources.
B. Prior to permitting an employee to perform work outside the State of Alaska for more
than 30 work days in a calendar year, the supervisor shall provide statewide human
resources with the employee’s proposed work location, begin and end dates of the
assignment, a description of the work activities, and the business reasons for the
assignment. The supervisor shall notify statewide human resources if the dates of the
assignment are extended.
C. Statewide human resources will determine whether tax or labor laws of another state
or country are applicable.
D. The department shall be responsible for payment of taxes or other additional
personnel costs related to the assignment.
E. A work assignment outside the State of Alaska is considered telework and the
provisions of R04.02.080 C – K apply.
[S. Henrichs comment; there may be need for this policy based on state tax laws or other
issues, but implementing this will create a lot of work. This could apply to as many as 100%
of research active faculty and a large number of staff, depending on whether (a) It applies to
individuals on travel status. (b) It applies to faculty on sabbatical. (c) It applies to individuals
located at certain facilities that are not in Alaska, but are not in another state or foreign
country either…ships or submarines on or in the high seas, or research stations in Antarctica
for example. These points need clarification in either policy or regulation.]
P0.02.080 Telework [Paula Harrison proposed addition based on recommendations of Michelle
Pope and Ardith Lynch.]
Work outside of the primary university-provided workplace during scheduled work hours for one
or more days a week on a regular basis requires prior approval of the regional human resources
officer or designee.
[S. Henrichs comment; the CBA allows faculty to work as paid consultants 1 day per week, so
this is somewhat in conflict. More broadly, this involves so many people, in my opinion, that it
is unworkable. There are many people (faculty and staff) who engage in regular research field
work, for example. Education faculty must supervise teaching interns in K-12 schools. We
employ a substantial number of faculty who teach via distance technologies. And, faculty are
traditionally accorded the privilege to choose their working hours and location except for the
CBA requirement to keep and post regular office hours. Further many people have several
university-supplied workplaces - an office, a lab, an administrative office, and so on
- all of which could be in different buildings or in different parts of a community. Extension
faculty and staff are expected to be outside of their offices in the community very frequently. I
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General Personnel Policies/Regulations
provide what might be a more workable alternative wording below, but this should receive
extensive review before any revision of Policy and Regulation is attempted.]
Work performed outside university-provided workplace(s) during scheduled work hours for one
or more days a week on a regular basis requires prior approval of the regional human resources
officer or designee. Any work that is normally expected to be done outside university-provided
workplaces, including field research, outreach and extension, supervision of interns, and faculty
consulting allowed under a collective bargaining agreement, is excepted from this policy.
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General Personnel Policies/Regulations