COMMENT DUE DATE:
March 16, 2012
DATE:
February 13, 2012
Kevin Sharp HRMD (405) 521-6829
Dena Thayer OIRP Programs Administrator (405) 521-4326
Pat McCracken OIRP (405) 522-1017
RE:
APA WF 12-03
The proposed policy is Permanent . This proposal will go to the Commission meeting on
CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 1. Human Resources Management Division
Part 1. General Provision
OAC 340:2-1-8 [AMENDED]
Part 4. Alcohol and Drug Testing Policy Applicable to OKDHS Employees and Applicants
OAC 340:2-1-42 [AMENDED]
(Reference WF 12-03)
SUMMARY: The proposed revisions to Subchapter 1 of Chapter 2 amend the rules to: (1) remove an obsolete definition, add new definitions, and amend a definition as enacted by the Oklahoma State Legislature in House Bill (HB) 2033; and (2) make minor changes to clarify language.
OAC 340:2-1-8 is amended, as required by HB2033, to establish definitions of "for-cause" and "post-accident testing," eliminate the definition of "reasonable suspicion," and amend the definition of "review officer."
OAC 340:2-1-42 is amended to add the words "members of the employee's household or comparably situated persons," for clarity in accordance with Standard 257:20-1-1 of Chapter 62 of Title 74 of the Oklahoma Statutes.
PERMANENT RULEMAKING APPROVAL IS REQUESTED.Permanent rulemaking approval is requested effective July 1, 2012.
LEGAL AUTHORITY:Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; HB 2033; Section 554 of Title 40 of the Oklahoma Statutes; and Standard 257:20-1-1 of Chapter 62 of Title 74 of the Oklahoma Statutes.
Rule Impact Statement
To:Programs administrator
Office of Intergovernmental Relations and Policy
From:Diane Haser-Bennett, Division Director
Human Resources Management Division
Date:January 11, 2012
Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 1. Human Resources Management Division (HRMD)
Part 1. General Provision
OAC 340:2-1-8 [AMENDED]
Part 4. Alcohol and Drug Testing Policy Applicable to OKDHS Employees and Applicants
OAC 340: 2-1-42 [AMENDED]
(Reference APA WF 12-03)
Contact:Kevin M. Sharp, 405-521-6829
A.Brief description of the purpose of the proposed rule:
Purpose.The proposed amendments to Subchapter 1 of Chapter 2 amend the rules to: (1) remove an obsolete definition, add new definitions, and amend a definition as enacted by the Oklahoma State Legislature in House Bill (HB) 2033; and (2) make minor changes to clarify language.
Strategic Plan impact. The proposed rules achieve Oklahoma Department of Human Services (OKDHS) goals by affirming the OKDHS Mission to provide a safe work environment for clients and employees.
Substantive changes.
340:2-1-42 is amended, as required by HB2033, to establish definitions of "for-cause" and "post-accident testing," eliminate the definition of "reasonable suspicion," and amend the definition of "review officer."
340:2-1-8 is amended to add the words "members of the employee's household or comparably situated persons," for clarity in accordance with Standard 257:20-1-1 of Chapter 62 of Title 74 of the Oklahoma Statutes.
Reasons. The proposed revisions are in compliance with HB 2033 made effective November 1, 2011.
Repercussions. The proposed rule amendments update the policy to reflect rule changes. If the proposed revisions are not implemented, OKDHS rules will not reflect definitions required by state law.
Legal authority. Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; HB 2033; Section 554 of Title 40 of the Oklahoma Statutes; and Standard 257:20-1-1 of Chapter 62 of Title 74 of the Oklahoma Statutes.
Permanent approval.Permanent rulemaking approval is requested.
B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities: The classes of persons most likely to be affected by the proposed rules are OKDHS employees. The affected classes of persons will bear no costs associated with implementation of the rules.
C.A description of the classes of persons who will benefit from the proposed rule: The classes of persons who will benefit are the general public and OKDHS employees.
D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change: The revised rules do not have an economic impact on the affected entities. There are no fee changes associated with the revised rules.
E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency: The probable cost to OKDHS includes the cost of printing and distributing the rules, which is estimated to be less than $20. The revised rules will result in enhanced delivery of services to clients and the citizens of Oklahoma in a safe and healthier environment.
F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule: The proposed rules do not have an economic impact on any political subdivision, nor will the cooperation of any political subdivisions be required in implementation or enforcement of the rules.
G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act: There are no anticipated adverse effects on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.
H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule: There are no less costly or nonregulatory methods or less intrusive methods for complying with this state mandate.
I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk: Implementation of the proposed rule revisions will bring the rules into compliance with state law, that will positively impact the health, safety, and well-being of employees, clients, and the general public.
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented: If the proposed rule revisions are not implemented, current rules will not be in compliance with state regulations and will place children, clients, and employees at risk; and thwart the agency's ability to maintain an alcohol and drug free workplace and environment.
K.The date the rule impact statement was prepared and, if modified, the date modified: Prepared January 11, 2012.Modified January 17, 2012.Modified January 25, 2012.
SUBCHAPTER 1. HUMAN RESOURCES MANAGEMENT DIVISION (HRMD)
PART 1. GENERAL PROVISIONS
340:2-1-8. Employee ethics and other employment
Revised 6-1-08 7-1-12
(a) Other employment, prohibition against use of position for personal gain, and avoidance of conflicts of interest.An employee is subject to appropriate corrective or disciplinary action if the employee fails to comply with the Rules of the Ethics Commission.[74 O. S. Ch. 62]
(1) Under these provisions, every employee must, during office hours, devote full time and attention, to Oklahoma Department of Human Services (OKDHS) business.An employee may not use:
(A) office hours for private gain, including activities involved in a business enterprise, such as livestock or crop farming, sale of real estate, or other business which involves self-employment; nor
(B) paid time, state offices, telephones, supplies, and equipment to further the programs or activities of private, non-profit organizations, even when the objectives of the private organization are compatible with those of OKDHS.Exceptions may occur as authorized by the division director and only for activities in which OKDHS can legitimately expend agency dollars, for example, when OKDHS is a member of an organization or in situations where OKDHS has responsibility as a member of a board or commission by law or by appointment of the executive or legislative branch of government.¢ 1
(2) An employee may accept other employment outside of the employee's OKDHS regular office hours provided such employment is approved in advance and does not interfere with or is not in conflict with the employee's work within OKDHS.¢ 2
(3) It is vitally important that an OKDHS employee avoid actual and perceived conflicts of interest in activities, such as employment with a provider who contracts with OKDHS. The employment or other activities of a spouse or other close family member may create the appearance of a conflict of interest and cause members of the general public to question the objectivity of OKDHS decision-making.
(4) An OKDHS employee may not be employed by another state agency or any provider contracting with OKDHS without the prior written approval of the employee's division director.¢ 3
(b) Related employees.Placement in a position that results in relatives, members of the same household, or comparably situated persons occupying positions within a division, office, facility, or area where one relative occupies a senior administrative position must be approved in writing by the OKDHS Director or designee.¢4 OKDHS reserves the right to make placements and work assignments of personnel as necessary to eliminate or prevent situations of this nature.OKDHS policy prohibits, unless waived by the OKDHS Director or designee, the employment of any person in a position that results in:
(1) immediate supervision by a relative, a member of the employee's household, or a comparably situated person.Relative is defined as spouse, child, parent, stepparent, parent-in-law, grandchild, grandparent, brother, sister, stepchild, brother-in-law, sister-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, first cousin, a member of the employee's household, or comparably situated persons, or foster relationship;
(2) as defined in (b)(1) of this Section, placement in a position within a relative's line of authority or chain of command; or
(3) two or more relatives reporting to the same immediate supervisor, as defined in (b)(1) of this Section.
(c) Processing applications for OKDHS benefits or services on behalf of an employee's relative or for persons living in the employee's home.In performing their official duties, employees are impartial and perform their duties in a manner that maintains impartiality.¢5Employees who engage in improper client relationships, as referenced in this Section, are subject to appropriate corrective or disciplinary action.
(1) An employee may not:
(A) process, certify, or approve an application for benefits, payments, or services for any relative as defined in subsection (b) of this Section, or for any unrelated person living in the employee's household.This includes a relationship to a relative that has been terminated by death, divorce, or other reasons; nor
(B) act as an authorized representatives representative for clients receiving OKDHS program benefits without the specific written approval of the local administrator after a determination has been made that no one else is available to serve.
(2) In those offices with limited staff, it may be necessary for an employee to take an application for a person(s) listed in subsection (b) of this Section.The employee cannot certify the person(s) for benefits, payments, or services.¢ 6
(d) Client relationships.In keeping with the mission of OKDHS to serve and protect clients, OKDHS employees assist clients in developing independence and self‑sufficiency while recognizing their rights.A client is defined as a program applicant, recipient, patient, resident of an OKDHS facility, and any other person receiving or making application for OKDHS services.Rights of clients include, but are not limited to:
(1) privacy and the expectation that information obtained by OKDHS employees in the course of their duties is held confidential;
(2) treatment that conveys dignity, respect, courtesy, fairness, and good faith;
(3) expectation of high standards of personal conduct from OKDHS employees;
(4) freedom from discrimination on the basis of race, gender, age, color, creed, national origin, religion, or disability;
(5) freedom from sexual harassment;
(6) freedom from coercion to give gifts or services of value; and
(7) freedom from interference by OKDHS employees with regard to matters of individual belief or faith.¢ 7
INSTRUCTIONS TO STAFF340:2-1-8
Revised 7-1-107-1-12
1.Oklahoma Department of Human Services (OKDHS) employees are encouraged to be constructive citizens of their local communities with their private activities conducted on personal time and kept separate from OKDHS working hours.While employed by OKDHS, an employee may not engage in a business enterprise either as an administrator, investor, or operator that is subject directly or indirectly to the control, inspection, review, audit, licensing, or enforcement by OKDHS.If, as a member of the board of directors, the employee, or his or her spouse, has a stake in the financial gains or losses in a business enterprise, membership is prohibited.
2.If an employee wishes to engage in other employment or in a business enterprise or activity or changes secondary employment or other business activity while an employee of OKDHS, the employee submits, in advance, Form 11AD042E, Request for Approval of Other Employment, to the employee's immediate supervisor and local administrator.
3.If there is an appearance of a conflict of interest or involvement with another state agency or a private agency contracting with OKDHS, final approval of Form 11AD042E is made by the appropriate senior administrator or division director.
4.For purposes of this Section, "a member of the employee's household," or "comparably situated persons" are people who are in a similar relationship to an employee as a relative, but who, due to not being formally married, are not legally related.For instance, a supervisor may not supervise his or her child's co-habiting or estranged partner even though the child and partner are not married.Questions regarding interpretation of this Section are submitted in writing to the division director, Human Resources Management Division (HRMD), who makes a determination as to applicability of coverage.
5.Employees of OKDHS are expected to:
(1) respect the privacy of clients and hold in confidence all information obtained in the course of their duties, as required by law and OKDHS policy;
(2) make every effort to foster maximum self-determination on the part of clients;
(3) ensure that all judgments, decisions, and actions are taken in the best interest of the client;
(4) treat clients with dignity, respect, courtesy, fairness, and good faith;
(5) take responsibility for identifying, developing, and fully utilizing knowledge of their respective professions and adhere to professional codes of ethics and conduct that govern that profession;
(6) ensure that all contacts attempted or made with a client or relating to a client's case are recorded in the client case record, including contacts in person, by phone, or by written correspondence;
(7) maintain high standards of personal conduct in the capacity and identity as an OKDHS employee;
(8) comply with OKDHS policies and procedures governing client abuse, neglect, and mistreatment; and
(9) recognize the affect their recommendations and professional actions may have on the lives of clients, and ensure that personal, social, financial, political, or other inappropriate factors do not influence these actions or recommendations.
6.OKDHS employees are prohibited from:
(1) discriminating against employees or clients on the basis of race, gender, age, color, creed, national origin, religion, or disability and prohibited from engaging in sexual harassment.Sexual harassment is defined as unwelcome sexual advances or requests for sexual favors or other unwelcome verbal or physical conduct of a sexual nature, which makes sexual favors a condition of employment, employment benefits, approval, or receipt of benefits, or which create a hostile or offensive working or service environment, even though there may be no economic detriment to the employee or client;
(2) allowing personal problems and conflicts to interfere with professional judgments and effectiveness.Any employee who becomes aware that such personal problems or conflicts may adversely affect the provision of services to a client(s) immediately advises his or her supervisor so appropriate steps can be taken to ensure that client services are unaffected;
(3) taking any action that violates the legal and civil rights of clients or others who may be affected by their actions;
(4) initiating a discussion with, or lobbying clients on, issues unrelated to the provision of client services while engaged in official duties on behalf of OKDHS;
(5) using their position as an OKDHS employee to form a personal relationship with a client;
(6) exploiting the trust and dependency of clients or engaging in any activity that is, or is perceived as, an exploitation of the client relationship.Prohibited activities include, but are not limited to:
(A) taking clients on overnight visits or trips, unless such overnight outings have been officially arranged and sanctioned by OKDHS supervisory or administrative staff;
(B) extending or accepting social invitations from clients;
(C) engaging in sexual intimacies with clients;
(D) engaging in or encouraging clients in illegal activities, including use or possession of illicit drugs or alcohol;
(E) giving or accepting gifts from clients or exchanging or suggesting the exchange of any goods or services of value, unless specifically authorized by policy or appropriate supervisory personnel; and
(F) making home visits or other client contacts on behalf of OKDHS outside normal working hours, unless specifically authorized by policy or appropriate supervisory personnel.
7.(a) In the event an employee has a personal relationship off-duty with a person whose case or OKDHS services are being administered by the immediate office or the program to which the employee is assigned, the employee promptly reports such relationship to his or her immediate supervisor.The supervisor and higher-level management personnel determine whether it is appropriate for the employee to continue in that unit or be reassigned elsewhere.
(b) It is the responsibility of the local administrator or designee to complete and dispose of the application or to assign a staff person from another office to complete the application.
PART 4. ALCOHOL AND DRUG TESTING APPLICABLE TO OKDHS EMPLOYEES AND APPLICANTS
340:2-1-42. Definitions
Revised 6-25-077-1-12
The following words and terms when used in this Part shall have the following meaning unless the context clearly indicates otherwise:
"Alcohol" means ethyl alcohol or ethanol.
"Alcohol test" means a breath or saliva test administered for the purpose of determining the presence or absence of alcohol or its metabolites in a person's bodily tissue, fluids, or products.Testing of Oklahoma Department of Human Services (OKDHS) employees is conducted and evaluated by qualified persons and facilities licensed by the Oklahoma State Department of Health (OSDH) in accordance with Standards for Workplace Drug and Alcohol Testing Act.[40 O.S. §§ 551 through 565 563.
"Applicant" means any person making application for initial hire, reinstatement, or transfer from a state agency, for any position within OKDHS, or for transfer, demotion, promotion, or reinstatement into the position of direct care specialist.OKDHS, upon a conditional offer of employment, requires the applicant to undergo drug testing.
"Conditional offer of employment" means an offer made to an applicant for employment with OKDHS, conditioned upon successful completion of a drug test prior to the start of employment.
"Confirmation test" means an alcohol or drug test, conducted in accordance with Drug and Alcohol Testing Rules, as amended, of OSDH, per OAC 310:638, to substantiate the results of a prior alcohol or drug test.For urine or hair, the test is performed on the same sample or a split sample.
"Direct care staff" means any employee, whether permanent, classified, unclassified, probationary, or temporary, in the job family of direct care specialist.
"Drug" means any controlled substance approved for hair or urine testing by OSDH, including amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, or a metabolite of any of these substances.
"Drug test" means a hair or urine test administered for the purpose of determining the presence or absence of a drug or its metabolites in a person's bodily tissue, fluids, or products.Testing conforms to the Drug and Alcohol Testing Rules, as amended, adopted by OSDH, per OAC 310:638.The testing of OKDHS employees is conducted and evaluated by qualified persons and facilities licensed by OSDH in accordance with Standards for Workplace Drug and Alcohol Testing Act.[40 O.S. § 551 through 565563]¢ 1
"Employee" means anyone employed by OKDHS, whether permanent, classified, unclassified, probationary, or temporary.
"For-cause testing" means that OKDHS may request or require an employee to undergo drug or alcohol testing at any time it reasonably believes that the employee may be under the influence of drugs or alcohol, including but not limited to:
(A) drugs or alcohol on or about the employee's person or in the employee's vicinity;
(B) conduct on the employee's part that suggests impairment or influence of drugs or alcohol;
(C) a report of drug or alcohol use while at work or on duty;
(D) information that an employee has tampered with drug or alcohol testing at any time;
(E) negative performance patterns; or
(F) excessive or unexplained absenteeism or tardiness.¢2
"Post-accident testing" means OKDHS may require an employee to undergo drug or alcohol testing if the employee or another person has sustained an injury while at work or property or equipment owned by the state has been damaged.For purposes of workers' compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation.
"Random testing" means an objective mechanism for selecting direct care employees for alcohol and drug testing that results in an equal probability any employee from a group of direct care employees will be selected.
"Reasonable suspicion" means a belief an employee is using or has used alcohol or drugs in violation of this policy.Reasonable suspicion is drawn from specific, objective, and articulable facts and reasonable inferences drawn from those facts in light of experience and training, and may be based upon but not limited to:¢ 2
(A) documented observations, such as the physical symptoms or manifestations of being under the influence of alcohol or drugs while at work or on duty or the direct observation of alcohol or drug use while at work or on duty;
(B) a report of alcohol or drug use while at work or on duty, provided by reliable and credible sources and which has been independently corroborated;
(C) evidence an employee has tampered with an alcohol or drug test as required by this policy; or
(D) evidence an employee is involved in the use, possession, sale, solicitation, or transfer of illegal drugs while on duty, on OKDHS property, or operating state‑owned vehicles, machinery, or equipment.
"Review officer" means a physician certified pursuant to Standards for Workplace Drug and Alcohol Testing Act[40 O.S. § 551 through 565]who reviews positive alcohol and drug test results and contacts each person having a positive alcohol or drug test to determine whether there is a medical reason for the positive test result person, qualified by the Oklahoma State Board of Health, who is responsible for receiving results from a testing facility which have been generated by an employer's drug or alcohol testing program, and who has knowledge and training to interpret and evaluate an individual's test results together with the individual's medical history and any other relevant information.
INSTRUCTIONS TO STAFF 340:2-1-42
Revised 6-25-077-1-12
1.Refer to OAC 340:2-15-40 through 340:2-15-49 for rules regarding alcohol and drug testing for drivers of commercial motor vehicles.
2.Form 11PE094E, Reasonable Suspicion For Cause Checklist, is provided to assist observing supervisors in documenting reasonable suspicion belief that the employee may be under the influence of drugs or alcohol.
