(a) Removal from critical duties. A supervisor or substance control officer will immediately remove an employee from critical duties if the employee is suspected of violating this subchapter.
(b) Sufficient documentation. An employee will be tested for cause if a supervisor has a reasonable suspicion that the employee was working under the influence of alcohol or drugs. This determination must be based on observed and documented physical, behavioral, or performance indications.
(c) Insufficient documentation. An employee will be given an opportunity to offer an explanation if a supervisor has a reasonable suspicion that the employee was working under the influence of alcohol or drugs, but does not have sufficient observed and documented indications to justify testing for cause.
(d) Sufficient response. If an employee provides a sufficient and acceptable response under subsection (c) of this section, the employee will remain subject to administrative and disciplinary actions if it is later discovered that the employee has worked under the influence of alcohol or drugs. The supervisor or substance control officer will so advise the employee.
(e) Procedural response.
  (1) The department will follow the procedures established in paragraph (2) of this subsection under either of the following circumstances.
    (A) A supervisor has a reasonable suspicion under subsection (b) of this section that an employee was working under the influence of alcohol or drugs.
    (B) An employee refuses to offer an explanation under subsection (c) of this section, the response indicates that the employee violated this subchapter, or the response is insufficient or unacceptable.
  (2) Under any of the circumstances listed in paragraph (1) of this subsection, the department will follow the following procedures.
    (A) The supervisor or the substance control officer will mandatorily refer the employee to the EAP and require the employee to complete treatment.
    (B) The department may take disciplinary action.
    (C) For 24 hours the employee will be prohibited from working and will be required to take sick leave, vacation leave, compensatory time, or leave without pay. The employee will only be required to take leave without pay if the employee has exhausted all accrued leave.
(f) Lawful medications. When an employee is unable to work in a safe and effective manner because of the use of lawfully prescribed or over-the-counter substances, the employee will be reassigned to temporary modified duties or will be required to take sick leave, vacation leave, compensatory time, or leave without pay. The employee will only be required to take leave without pay if the employee has exhausted all accrued leave.
(g) Final applicants. The department will not hire a final applicant if the applicant has engaged in conduct that would justify terminating an employee from the department.

Source Note: The provisions of this §4.35 adopted to be effective November 21, 2002, 27 TexReg 10754