Section 4.34 - Illegal Drugs(a) Distribution. An employee will be terminated from the department if convicted of a criminal drug violation relating to the sale, distribution, dispensing, transportation, or manufacture of drugs, whether in the workplace or outside the workplace. A final applicant will not be hired if the final applicant is on probation or parole for a felony conviction related to the sale, distribution, dispensing, transportation, or manufacture of drugs or the possession with the intent to sell, distribute, dispense, transport, or manufacture drugs. An employee will be terminated from the department if it is determined that at the time of hire, the employee was on probation or parole for a felony conviction related to the sale, distribution, dispensing, transportation, or manufacture of drugs or the possession with the intent to sell, distribute, dispense, transport, or manufacture drugs.(b) Suspicious substance. The following procedure will be followed if a substance appearing to be a drug is found in the possession of an employee in the workplace. It will also be followed if an employee is reasonably suspected of selling, distributing, dispensing, transporting, or manufacturing drugs, or conspiring to sell, distribute, dispense, transport, or manufacture drugs, whether in the workplace or outside the workplace. Reasonable suspicion may be based on any circumstance, including direct observation in the workplace or an arrest, charge, or indictment for an offense related to selling, distributing, dispensing, transporting, or manufacturing drugs. (1) The employee's supervisor will immediately place the employee on administrative leave pending investigation by the department.(2) The employee will immediately be provided with a letter that: (A) summarizes the facts on which reasonable suspicion is based;(B) notifies the employee that involvement in selling, distributing, dispensing, transporting, or manufacturing drugs subjects the employee to termination from the department;(C) advises that the employee will have a specified time in which to provide a reasonable explanation to the employee's supervisor or substance control officer; and(D) advises that the employee may be terminated from the department if the employee refuses to offer a reasonable explanation, if the response indicates that the employee sold, distributed, dispensed, transported, or manufactured drugs, or conspired to sell, distribute, dispense, transport, or manufacture drugs, or if the response is insufficient or unacceptable.(3) An employee who is suspected of involvement in selling, distributing, dispensing, transporting, or manufacturing drugs will be terminated from the department if: (A) the employee fails to respond within the specified time or to provide a sufficient and acceptable explanation;(B) the substance control officer confirms the illegal acts; or(C) investigation by law enforcement or other governmental authorities confirms the illegal acts.(4) An employee who used or possessed drugs in the workplace, but did not sell, distribute, dispense, transport, or manufacture drugs, or conspire to sell, distribute, dispense, transport, or manufacture drugs, will be mandatorily referred to the EAP and required to complete treatment if: (A) the employee fails to respond within the specified time or to provide a sufficient and acceptable explanation;(B) the substance control officer confirms the illegal acts; or(C) investigation by law enforcement or other governmental authorities confirms the illegal acts.(5) An employee will be made aware of the EAP if it is determined that the employee used drugs outside the workplace and did not use drugs in the workplace or sell, distribute, dispense, transport, or manufacture drugs.(6) If an employee is reasonably suspected of selling, distributing, dispensing, transporting, or manufacturing drugs, or conspiring to sell, distribute, dispense, transport, or manufacture drugs, the substance control officer shall contact the Compliance Division or the substance abuse program staff of the Human Resources Division immediately, before turning the matter over to law enforcement authorities.(c) Notifications. (1) An employee shall notify the employee's supervisor in writing if the employee is arrested, charged, or indicted for an offense related to selling, distributing, dispensing, transporting, or manufacturing drugs, whether in the workplace or outside the workplace. If the employee fails to make this notification within one day after returning to work following the occurrence, the employee will be suspended three days without pay.(2) An employee shall notify the employee's supervisor in writing if the employee is convicted of an offense related to selling, distributing, dispensing, transporting, or manufacturing drugs, whether in the workplace or outside the workplace. If the employee fails to make this notification within one day after returning to work following the occurrence, the employee will be terminated from the department whenever it is discovered.(3) An employee shall notify the employee's supervisor in writing if the employee is convicted of any violation of any criminal drug statute based on the employee's conduct in the workplace for which notification is not required under paragraph (2) of this subsection. This notification must occur within one work day after the employee returns to work following the conviction if the violation is related to conduct that occurred in the workplace. If the employee fails to make this notification on time, the department will suspend the employee within 30 days after it discovers the conviction. The suspension will be for three days without pay. Under the Drug Free Workplace Act 1988, 41 U.S.C. §§ 701- 707, the department will notify the appropriate federal agency of the conviction within 10 days after receipt of the notice.43 Tex. Admin. Code § 4.34
The provisions of this §4.34 adopted to be effective November 21, 2002, 27 TexReg 10754; amended to be effective January 1, 2009, 33 TexReg 10053; Amended by Texas Register, Volume 42, Number 15, April 14, 2017, TexReg 2008, eff. 4/18/2017