New
Mexico Register / Volume XXXVI, Issue 1 / January 14, 2025
TITLE 1 GENERAL GOVERNMENT
ADMINISTRATION
CHAPTER 7 STATE PERSONNEL ADMINISTRATION
PART 8 DRUG
AND ALCOHOL ABUSE
1.7.8.1 ISSUING AGENCY: State
Personnel Board.
[1.7.8.1 NMAC - Rp,
1.7.8.1 NMAC, 1/14/2025]
1.7.8.2 SCOPE: All
state agencies in the classified service.
[1.7.8.2 NMAC - Rp,
1.7.8.2 NMAC, 1/14/2025]
1.7.8.3 STATUTORY AUTHORITY:
Subsection A of Section 10-9-10 NMSA 1978.
[1.7.8.3 NMAC - Rp, 1.7.8.3 NMAC, 1/14/2025]
1.7.8.4 DURATION: Permanent.
[1.7.8.4 NMAC - Rp,
1.7.8.4 NMAC, 1/14/2025]
1.7.8.5 EFFECTIVE DATE: January 14, 2025, unless a later date is cited at the end of
a section.
[1.7.8.5 NMAC - Rp,
1.7.8.5 NMAC, 1/14/2025]
1.7.8.6 OBJECTIVE: The
objective of Part 8 of Chapter 7 is: to require every state agency to provide
its employees with information on the effects
of drug and alcohol abuse; to require drug, alcohol testing or both; and
to establish required collection, screening, rehabilitative and sanction
parameters.
[1.7.8.6 NMAC - Rp,
1.7.8.6 NMAC, 1/14/2025]
1.7.8.7 DEFINITIONS:
A. “Alcohol” means all consumable
non-prescription substances which contain alcohol, specifically including,
without limitation, spirits, wine, malt beverages, and intoxicating liquors.
B. “Aliquot” means a portion of a urine
specimen used for testing.
C. “Chain of custody” refers to procedures
to account for the integrity of each specimen by tracking its handling and
storage from point of specimen collection to final disposition of the specimen.
In any dispute regarding chain of custody, the identity and integrity of the
sample at issue may be established by a preponderance of the evidence.
D. “Confirmatory test” means a second
analytical procedure to identify the presence of a specific drug or metabolite
in a urine specimen by gas chromatography/mass spectrometry (GC/MS).
E. “Drug” means marijuana, cocaine,
opiates, phencyclidine (PCP), and amphetamines; a metabolite of those drugs; or
any non-prescription substance containing those drugs.
F. “Initial test” means an immunoassay
screen which meets the requirements of the food and drug administration to
eliminate negative specimens from further consideration.
G. “Medical review officer” means a New
Mexico based and licensed physician knowledgeable in the medical use of prescription
drugs and alcohol and the pharmacology and toxicology of illicit drugs and
alcohol.
H. “Non-prescription” refers to all
substances other than a substance prescribed by a doctor or licensed health
professional to the employee or particular candidate.
I. “On duty” means any time during an
employee's regular workday or other period during which the employee is
required or permitted to work by the employer, including overtime, lunch and
other breaks, and anytime while operating or riding in a state vehicle.
J. “Possession” means to knowingly have,
own, or have on oneself the drug, the alcohol or both.
K. “Random selection
basis” means a system for selecting employees or groups of employees for
drug testing in a statistically random system based on a neutral criterion,
such as employment or position numbers, without individualized suspicion that a
particular employee is using drugs.
L. “Reasonable suspicion” means a belief
drawn from specific objective and articulable facts and the reasonable
inferences drawn from those facts.
M. “Safety-sensitive position” is a
position in which performance by a person under the influence of drugs or
alcohol would constitute an immediate or direct threat of injury or death to
that person or another, or as otherwise provided by state or federal law.
[1.7.8.7 NMAC - Rp,
1.7.8.7 NMAC, 1/14/2025]
1.7.8.8 OMNIBUS TRANSPORTATION
EMPLOYEE TESTING ACT OF 1991:
A. Employees in safety-sensitive positions within the meaning of the Omnibus
Transportation Employee Testing Act of 1991 ("Omnibus Act" (49 U.S.C. Subtitle VI Part B § 31306) are
exempt from and are not covered by the provisions of 1.7.8.7 NMAC and 1.7.8.9 NMAC through 1.7.8.20 NMAC.
B. Agencies with employees covered by the Omnibus Act shall develop and
submit to the State Personnel Office (SPO) director a policy for implementing
drug and alcohol tests.
C. The policy shall contain at the least the:
(1) covered positions;
(2) testing requirements for drugs and alcohol;
(3) collection of specimen;
(4) reporting and explanation of test results;
(5) confidentiality;
(6) training;
(7) rehabilitation and sanctions;
(8) record retention;
(9) rehabilitative and sanction
parameters of drug and alcohol abuse; and
(10) reasonable
suspicion.
D. Agencies shall
advise the board annually of those positions covered by the Omnibus Act.
[1.7.8.8 NMAC - Rp,
1.7.8.8 NMAC, 1/14/2025]
1.7.8.9 SUBSTANCE ABUSE COORDINATOR:
A. Each agency shall appoint a substance abuse coordinator who shall be
responsible for the agency's drug and alcohol abuse program.
B. The substance abuse coordinator shall provide drug and alcohol abuse
awareness information to employees including but not limited to the:
(1) dangers of drug and alcohol abuse;
(2) availability of counseling, rehabilitation, and employee assistance
programs; and
(3) sanctions that may be imposed upon employees as provided in 1.7.8.19 NMAC.
C. The drug abuse coordinator shall ensure that the agency has contracted
or made arrangements with a medical review officer to perform the duties
required by 1.7.8
NMAC.
[1.7.8.9 NMAC – Rp
& Rn., 1.7.8.10 NMAC, 1/14/2025]
1.7.8.10 AUTHORIZED
DRUG AND ALCOHOL TESTING:
A. The SPO director shall maintain a
list of positions designated by the agencies as being safety-sensitive.
B. All candidates for safety-sensitive positions are required to submit to
drug testing after an offer of employment is made and prior to final selection.
C. Agencies that require employees in safety-sensitive positions to
undergo regular physical examinations shall require such employees to undergo
drug testing as part of those physical examinations.
D. Agencies
shall require employees to undergo drug, alcohol testing or both if the agency
has a reasonable suspicion that the employee has committed drug or alcohol
abuse based on, but not limited to:
(1) direct observation of the physical symptoms or manifestations of being
under the influence of a drug or alcohol while on duty; such symptoms may
include, but are not limited to liquor on breath, slurred speech, unsteady
walk, or impaired coordination; or
(2) direct observation of the use or possession of drugs or drug
paraphernalia, or the use of alcohol while on duty.
E. An employee shall submit to a reasonable suspicion drug
or alcohol test provided the requesting supervisor has secured the next level
supervisor’s approval, unless the requesting supervisor is the agency head. The
requesting supervisor shall prepare a contemporaneous memorandum outlining the
details leading up to the reasonable suspicion drug or alcohol test. The
memorandum shall be submitted to the substance abuse coordinator within 24
hours of the request for testing.
F At
least ten percent of employees in safety-sensitive positions in each agency
shall be required to undergo drug testing on a yearly basis.
(1) The SPO director shall identify the safety-sensitive positions on a
random selection basis.
(2) At the discretion of the agency head or substance abuse coordinator,
employees may be excused from random drug testing if:
(a) they have previously requested referral in accordance with the
provisions of Subsection
B of
1.7.8.19 NMAC;
(b) the selection for random drug testing is made during the first 30
calendar days following the request for referral; or
(c) they
are on an authorized absence for 30 calendar days or more.
(3) The
agency head or substance abuse coordinator shall inform the SPO director of any
employee excused from random drug testing within 10 working days of receipt of
the notice of safety sensitive testing.
G. The SPO director may authorize an agency to conduct more
than ten percent (10%) random drug testing on employees in safety sensitive
positions upon receipt of an agency’s written request that would include
justification of how the additional testing is related to the conditions of
employment and the use of equipment that could pose a risk to public health or
safety.
[1.7.8.10 NMAC – Rp
& Rn., 1.7.8.11 NMAC, 1/14/2025]
1.7.8.11 COLLECTION
OF SPECIMENS:
A. Unless
otherwise specified in 1.7.8 NMAC, urine specimens for drug testing shall be collected by
a laboratory meeting state licensure requirements and certified by the
substance abuse and mental health services administration or the college of
American pathologists in forensic urine drug testing.
B. Breath specimens may be collected by a certified person, a medical or a
laboratory facility. Should the medical
or laboratory facility not be available or should the equipment fail, the
substance abuse coordinator or designee shall designate another testing
facility and report this referral to the SPO director within ten working days
of taking the breath specimen.
[1.7.8.11 NMAC – Rp
& Rn., 1.7.8.12 NMAC, 1/14/2025]
1.7.8.12 DRUG
TESTS:
A. The
initial and confirmatory drug tests shall be performed by a state licensed
laboratory in accordance with the substance abuse and mental health services
administration or the college of American pathologists in forensic urine drug
testing. The laboratory shall have the capability of performing initial and
confirmatory tests for each drug or metabolite for which service is offered.
B. The cutoff concentrations set forth in Section 40.85 of Part 40
of 49 C.F.R. shall be used when
screening specimens on the initial and confirmatory urine drug tests.
C. The laboratory shall report as negative all
specimens that are negative on the initial test or negative on the confirmatory
test. Only specimens reported as positive on the confirmatory test shall be
reported positive for a specific drug.
D. The
laboratory shall retain and place those specimens confirmed positive in
properly secured long-term frozen storage for at least 365 calendar days. An
agency may request the laboratory to retain the specimen for an additional
period of time. If the laboratory does not receive a request to retain the
specimen during the initial 365 calendar day period, the specimen may be
discarded.
[1.7.8.12 NMAC – Rp
& Rn., 1.7.8.13 NMAC, 1/14/2025]
1.7.8.13 ALCOHOL
TESTS:
A. A
test for alcohol shall be administered by a legally recognized and approved
method.
B. A
test by a legally recognized or approved method with results of blood alcohol
content (BAC) level of .04 or more shall be deemed positive for alcohol.
C. For
employees who have undergone alcohol rehabilitation, pursuant to Paragraph (1) of
Subsection D of 1.7.8.19 NMAC, a positive test result during the 30 to 180
calendar days following the first positive test shall subject an employee to
disciplinary action. Such a test may be
performed by urinalysis.
[1.7.8.13 NMAC - Rp,
1.7.8.14 NMAC, 1/14/2025]
1.7.8.14 REPORTING
OF TEST RESULTS:
A. Drug
and alcohol test results shall be reported only to the substance abuse
coordinator or designee.
B. The
test report shall contain the specimen number assigned by the agency, the
laboratory accession number and results of the tests. All specimens negative on
the initial test or negative on the confirmatory test shall be reported as
negative. Only specimens confirmed positive shall be reported positive. Results
may be transmitted to the substance abuse coordinator by various means
including certified mail with return receipt requested, courier service, or
electronic mail in a secure area (e.g., facsimile or computer). Certified
copies of all analytical results and chain-of-custody forms shall be available
from the laboratory when requested by the SPO director, the agency head, or
substance abuse coordinator or designee.
C. The
substance abuse coordinator or designee shall advise candidates and employees
in writing of positive test results.
D. All
records pertaining to a given urine specimen shall be retained by the
laboratory for a minimum of two years.
E. Only
those members of management who need to know shall be made aware of the test
results. Breach of confidentiality may be grounds for disciplinary action.
[1.7.8.14 NMAC – Rp
& Rn., 1.7.8.15 NMAC, 1/14/2025]
1.7.8.15 EXPLANATION
OF POSITIVE TEST RESULTS:
A. Candidates
for a safety sensitive position who test positive for drugs, alcohol or both may,
within two workdays of being advised of the test results, submit a written
request to the agency's substance abuse coordinator for a review of the test
results by the medical review officer. The test results of all employees who
test positive for drugs, alcohol or both shall be referred by the agency's
substance abuse coordinator or designee to the medical review officer.
(1) If the candidate does not request a review of the test results within
two workdays, the candidate waives review by the medical review officer and any
retesting of the sample and consents to rejection for selection.
(2) The medical review officer shall examine any proffered or possible explanations
concerning the validity of the confirmed positive test results. This action may
include conducting a medical interview, review of the medical history, review
of the chain of custody, and discussions with the collection or laboratory
personnel. The medical review officer shall review all medical records made
available by the individual when a positive test could have resulted from
legally prescribed medications for medical or dental treatment. The medical
review officer shall also review the results of any retest done according to
the provisions of 1.7.8.17 NMAC.
(a) Should any questions arise as to the accuracy or validity of a
confirmed positive test result, only the medical review officer is authorized
on behalf of the state to order a reanalysis of the original sample and such
retests are authorized to be performed only at a laboratory that meets
applicable provisions of any state licensure requirements and is certified by
the substance abuse and mental health services administration or the college of
American pathologists in forensic urine drug testing.
(b) Prior to making a final decision to verify a positive test result, the
medical review officer shall give the candidate or employee an opportunity to
discuss the test results. The discussion between the medical review officer and
the candidate or employee may be in person or by telephone.
(c) The medical review officer shall advise the appropriate substance abuse
coordinator of his or her medical conclusions from the review of the test
results. If there are conflicting factual statements, the medical review
officer shall not attempt to resolve that factual conflict, but shall report it
along with his or her medical conclusions to the agency substance abuse
coordinator. Similarly, the medical review officer shall not attempt to
ascertain the factual correctness of any claim by the candidate or employee of
involuntary ingestion of drugs or alcohol or both, but shall simply report such
claims to the agency substance abuse coordinator with his or her medical
opinion as to the possibility that such occurrence could have affected the test
results.
B. Based
upon the medical review officer's report and such other inquiries or facts as
the agency may consider, the agency shall determine whether the explanations or
challenges of the confirmed positive test results are satisfactory.
(1) If the explanations or challenges of the positive test results are
unsatisfactory the agency:
(a) shall
provide a written explanation to the candidate or employee as to why the
explanation is unsatisfactory, along with the test results, within 11 calendar
days of the agency's determination; and
(b) shall
retain such records as confidential for one year.
(2) If the explanations or challenges of the positive test results are
satisfactory the agency:
(a) shall notify the candidate or employee in writing within 11 calendar
days of the agency's determination; and
(b) shall
retain such records as confidential for one year.
[1.7.8.15 NMAC – Rp
& Rn., 1.7.8.16 NMAC, 1/14/2025]
1.7.8.16 RETESTING: Candidates
who have sought review of their positive drug or alcohol urine tests by the
medical review officer and all employees who tested positive for drugs or
alcohol urine tests may elect to have, at their expense, an aliquot of the
original urine specimen retested by another laboratory that meets applicable
provisions of any state licensure requirements and is certified in forensic
urine drug testing by either the substance abuse and mental health services
administration or the college of American pathologists. The drug testing laboratory shall arrange for
the shipment of the aliquot to the laboratory of the candidates’ or employees'
choosing. The agency shall pay for the
retest if the retest is negative.
[1.7.8.16 NMAC – Rp
& Rn., 1.7.8.17 NMAC, 1/14/2025]
1.7.8.17 CONFIDENTIALITY: No
laboratory reports or test results shall appear in the employee's personnel file unless he or she is subject of
a disciplinary action taken in accordance with the provisions of 1.7.8 NMAC. Laboratory reports or test results shall be
placed in a special locked file maintained by the substance abuse
coordinator. Files relating to
laboratory reports or test results maintained by the substance abuse
coordinator are confidential within the meaning of 1.7.1.12 NMAC.
[1.7.8.17 NMAC – Rp
& Rn., 1.7.8.18 NMAC, 1/14/2025]
1.7.8.18 REHABILITATION
AND SANCTIONS:
A. Candidates for employment:
(1) A candidate for employment in a safety-sensitive position shall be
rejected for selection when he tests positive for drugs and does not seek
review by the medical review officer or cannot satisfactorily explain the
positive test results.
(2) An employee for transfer or promotion to a safety-sensitive position
who tests positive for drugs and is unable to satisfactorily explain the
positive test results shall be subject to disciplinary action including
dismissal if the employee occupies a safety-sensitive position. If the employee is not in a safety-sensitive
position, the employee shall be treated in accordance with the provisions of Subsection D of
1.7.8.19
NMAC.
B. Voluntary self-identification by
employees:
(1) Any employee who requests referral to an EAP, counseling or a drug or
alcohol rehabilitation program, prior to selection for drug and alcohol testing
shall be referred by the substance abuse counselor. Any costs for counseling or rehabilitation
shall be borne by the employee.
(2) The agency may grant administrative leave to an employee to participate
in an employee assistance program, counseling, or a drug or alcohol
rehabilitation program for up to 240 hours for the initial voluntary
self-identification only.
(3) Employees in safety-sensitive positions, who have requested referral
shall be assigned to non safety-sensitive duties until successful completion of
the approved substance abuse program or treatment plan and release by the
substance abuse program provider.
(4) Employees are subject to drug, alcohol testing or both at the
discretion of the substance abuse coordinator at any time between 30 and 180
calendar days of requesting referral.
(a) Employees in safety-sensitive positions who test positive during this
time period or fail to successfully complete such program are subject to
disciplinary action including dismissal.
(b) Employees in non safety-sensitive positions who test positive during
this time period or fail to successfully complete such program may be subject
to disciplinary action including dismissal.
The agency may allow the employee to use annual leave, sick leave, or
leave without pay for additional counseling or rehabilitation by the agency
after considering all factors relevant to the employee's condition and job
performance history.
(5) For employees who have been required to undergo an alcohol
rehabilitation program, any indication of alcohol at any level during the 30 to
180 calendar day period following the referral shall be considered a positive
test result.
C. Safety-sensitive
positions: Employees in
safety-sensitive positions who have not requested referral to an employee
assistance program, counseling, or a drug or alcohol rehabilitation program and
test positive on a required drug, alcohol test or both shall be subject to
disciplinary action including dismissal if they do not have a satisfactory
explanation for the positive test results.
D. Non safety-sensitive
positions:
(1) Employees in non safety-sensitive positions who test positive on a
reasonable suspicion drug or alcohol test or both required by Subsection D of
1.7.8.11
NMAC and do not have a satisfactory explanation for the positive test
results shall be referred to an employee assistance program, counseling, or a
drug or alcohol rehabilitation program.
Employees are subject to drug or alcohol testing at the discretion of
the substance abuse coordinator at any time between 30 and 180 calendar days of
the first positive test. Any such
employee who tests positive for drugs, alcohol or both between 30 and 180
calendar days of the first positive test without a satisfactory explanation or
who fails to enter and successfully complete a program shall be subject to
disciplinary action including dismissal.
(2) The agency may grant an employee administrative leave to participate in
an employee assistance program, counseling, or a drug or alcohol rehabilitation
program for up to 240 hours for the initial reasonable suspicion referral only.
E. Refusal to cooperate in testing
procedure: Any employee who refuses or fails without good
cause to cooperate in the drug or alcohol testing or both procedure by refusing
or failing to complete the specified forms, by refusing or failing to submit a
urine or breath specimen, or otherwise refuses or fails to cooperate shall be
subject to disciplinary action including dismissal.
F. Possession of drugs or alcohol:
(1) Employees who illegally sell, purchase, or convey from one person or
one place to another drugs or any substance in Schedules I and II of the
Controlled Substances Act, Sections 30-31-1 to 30-31-41 NMSA 1978 (Repl. Pamp. 1994),
while on duty shall be subject to disciplinary action including dismissal and
shall be reported to the local law enforcement agency.
(2) When employees, while on duty consume or have in their possession drugs,
open containers of alcohol or any substance in Schedules I and II of the
Controlled Substances Act, Sections
30-31-1 to 30-31-41 NMSA 1978 (Repl.
Pamp. 1994) without a valid prescription or as otherwise authorized by law,
they shall be subject to disciplinary action including dismissal and shall be
reported to the local law enforcement agency.
[1.7.8.18 NMAC – Rp
& Rn., 1.7.8.19 NMAC, 1/14/2025]
1.7.8.19 PILOT
PROGRAM: The board may authorize a pilot program to
evaluate impairment testing. Such pilot programs may authorize variances from
provisions of 1.7.8
NMAC, including random drug testing for participants in the pilot
program.
[1.7.8.19 NMAC – Rp
& Rn., 1.7.8.20 NMAC, 1/14/2025]
HISTORY OF 1.7.8 NMAC:
Pre-NMAC History:
Material in this
part was derived from that previously filed with the Commission of Public
Records - State Records Center and Archives as:
SPB-14, Drug and
Alcohol Abuse, filed 4/4/1990.
SPB-14, Drug and
Alcohol Abuse, filed 10/17/1990.
SPB-14, Drug and
Alcohol Abuse, filed 12/13/1990.
SPB 11, Drug and
Alcohol Abuse, filed 12/15/1992.
SPB 11, Drug and
Alcohol Abuse, filed 3/18/1994.
SPB 11, Drug and
Alcohol Abuse, filed 12/29/1994.
History of Repealed Material:
1 NMAC 7.8, Drug and Alcohol Abuse (filed 6/13/1997) repealed 7/7/2001.
1.7.8 NMAC, Drug and Alcohol Abuse (filed 6/14/2001) repealed
1/14/2025.
Other History:
SPB 11, Drug and Alcohol Abuse (filed 12/29/1994) was replaced by 1 NMAC
7.10, Drug and Alcohol Abuse, effective 1/31/1996.
1 NMAC 7.10, Drug and
Alcohol Abuse (filed 1/12/1996) was
replaced by 1 NMAC 7.10, Drug and Alcohol Abuse, effective 5/15/1996.
1 NMAC 7.10, Drug and
Alcohol Abuse (filed 5/2/1996) was replaced
by 1 NMAC 7.8, Drug and Alcohol
Abuse, effective 7/1/1997.
1 NMAC 7.8, Drug and
Alcohol Abuse (filed 6/13/1997) was replaced by 1.7.8 NMAC, Drug and Alcohol
Abuse, effective 7/7/2001.
1.7.8 NMAC, Drug and
Alcohol Abuse (filed 6/14/2001) was replaced by 1.7.8 NMAC, Drug and Alcohol
Abuse, effective 1/14/2025.