Oneida Business Committee (2023)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Conference Room - 2nd Floor Norbert Hill Center

January 4, 2023

9:00 a.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. December 21, 2022 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Drug and Alcohol Free Workplace Law Amendments (pg. 4)

2. Emergency Management Law Amendments (pg. 31)

IV.

New Submissions

1. Elder Abuse Code (pg. 47)

Additions

VI.

Administrative Updates

VII.

Executive Session

VIII. Recess/Adjourn

A good mind. A good heart. A strong fire.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

r'\

mooao

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center

December 21, 2022

9:00 a.m.

Present: David P. Jordan, Marie Cornelius, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King

Others Present: Clorissa N. Leeman, Carolyn Salutz, Grace Elliott, Brooke Doxtator, Nancy

Barton, Ray Skenandore, Keith Doxtator, Joy Salzwedel (Microsoft Teams), Carl Artman

(Microsoft Teams), Rhiannon Metoxen (Microsoft Teams), Kristal Hill (Microsoft Teams), Peggy

Van Gheem (Microsoft Teams), Michelle Tipple (Microsoft Teams), Shannon Davis (Microsoft

Teams), Tina Jorgenson (Microsoft Teams), Todd VandenHeuvel (Microsoft Teams), Kaylynn

Gresham (Microsoft Teams), Eric Boulanger (Microsoft Teams)

Call to Order and Approval of the Agenda

David P. Jordan called the December 21, 2022, Legislative Operating Committee meeting

to order at 9:00 a.m.

Motion by Marie Cornelius to adopt the agenda as is; seconded by Jennifer Webster.

Motion carried unanimously.

II.

Minutes to be Approved

1. December 7, 2022 LOC Meeting Minutes

Motion by Marie Cornelius to approve the December 7, 2022, LOC meeting minutes and

forward to the Oneida Business Committee; seconded by Kirby Metoxen. Motion carried

unanimously.

III.

Current Business

1. Drug and Alcohol Free Workplace Law Amendments

Motion by Jennifer Webster to approve the legislative analysis of the Drug and Alcohol

Free Workplace law amendments; seconded by Daniel Guzman King. Motion carried

unanimously.

2. Election Law Emergency Amendments

Motion by Marie Cornelius to approve the Election law emergency amendments adoption

packet and forward to the Oneida Business Committee for consideration; seconded by

Jennifer Webster. Motion carried unanimously.

A good mind. A good heart. A strong fire.

Legislative Operating Committee Meeting Minutes of December 21, 2022

Page 1 of 2

ONEIDA

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IV.

New Submissions

1. Two Spirit Inclusion Law

Motion by Marie Cornelius to add the Two Spirit Inclusion law to the Active Files List

with Jennifer Webster as the sponsor; seconded by Kirby Metoxen. Motion carried

unanimously.

Additions

VI.

Administrative Items

VII.

Executive Session

VIII. Adjourn

Motion by Daniel Guzman King to adjourn at 9:40 a.m.; seconded by Marie Cornelius.

Motion carried unanimously.

Legislative Operating Committee Meeting Minutes of December 21, 2022

Page 2 of 2

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

=DODDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

Legislative Operating Committee

January 4, 2023

Drug and Alcohol Free Workplace Law

Amendments

Submission Date: 9/7/22

LOC Sponsor: Kirby Metoxen

Public Meeting: N/A

Emergency Enacted: N/A

Summary: On August 30, 2022, the Legislative Operating Committee received a request from the

Human Resources Department to add the Drug and Alcohol Free Workplace law amendments to its Active

Files List. It is the policy of the Nation to establish a drug and alcohol-free workplace program that

balances respect for individuals with the need to maintain an alcohol and drug-free environment. HRD

indicated that with the Benton – Pre-Employment Drug Testing petition currently pending – which

requests to remove or lower THC from the pre-employment drug testing requirements - they were directed

by the Oneida Business Committee to work with the Oneida Law Office on potential proposed language

to address this petition. HRD is requesting that the LOC now add this legislative item to the Active Files

List so that the HRD can collaborate with the LOC on the consideration of potential amendments moving

forward. The Legislative Operating Committee added this item to its Active Files List on September 7,

2022.

9/7/22 LOC:

Motion by Marie Summers to add the Drug and Alcohol Free Workplace law amendments to

the Active Files List with Kirby Metoxen as the sponsor; seconded by Kirby Metoxen. Motion

carried unanimously.

10/31/22:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Clorissa N. Leeman, Carolyn Salutz,

Grace Elliott, Carl Artman, Peggy Van Gheem, Todd Vandenheuvel, Matt Denny, Nic

Reynolds, Josh Cottrell, Wendy Alvarez, Louise Cornelius, Lucy Neville, Brenda MendollaBuckley, Fawn Rasmussen, Kristal Hill, Rhiannon Metoxen. The purpose of this work

meeting is to begin the consideration of potential amendments to the Drug and Alcohol Free

Workplace law by reviewing and discussing the options for amendments provided by the

Oneida Law Office.

11/15/22:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Jennifer Webster, Clorissa N.

Leeman, Carolyn Salutz, Grace Elliott, Carl Artman, Peggy Van Gheem, Todd Vandenheuvel,

Matt Denny, Nic Reynolds, Josh Cottrell, Wendy Alvarez, Lucy Neville, Lorna Skenandore,

Chad Fuss, Fawn Rasmussen, Mary Cornelissen, Kristal Hill. The purpose of this work

meeting was to continue the consideration of potential amendments to the Drug and Alcohol

Free Workplace law by deciding on an option for amendments provided by the Oneida Law

Office.

12/1/22:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Marie Cornelius, Daniel Guzman

King, Clorissa N. Leeman, Grace Elliott, Carolyn Salutz, Kristal Hill. This was a work

meeting held through Microsoft Teams. The purpose of this work meeting was to review the

updated proposed language for the amendments, as well as the Waiver of Exemption of

Positive THC Test Results for Pre-Employment Drug Testing resolution.

Page 1 of 2

A good mind. A good heart. A strong fire.

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12/7/2 LOC:

Motion by Jennifer Webster to approve the draft of the Drug and Alcohol Free Workplace law

amendments and direct that a legislative analysis be completed; seconded by Daniel Guzman

King. Motion carried unanimously.

12/21/22 LOC: Motion by Jennifer Webster to approve the legislative analysis of the Drug and Alcohol Free

Workplace law amendments; seconded by Daniel Guzman King. Motion carried unanimously.

Next Steps:

 Approve the public meeting packet for the proposed amendments to the Drug and Alcohol

Free Workplace law and schedule a public meeting to be held on February 15, 2022.

A good mind. A good heart. A strong fire.

Page 2 of 2

ONEIDA

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ONEIDA NATION PUBLIC MEETING NOTICE

WEDNESDAY, FEBRUARY 15, 2023

Find Public Meeting Materials at

Oneida-nsn.gov/government/register/public meetings

Send Public Comments to

LOC@oneidanation.org

12:15 pm

Ask Questions here

Norbert Hill Center-Business Committee Conference Room

N7210 Seminary Rd., Oneida, Wisconsin

LOC@oneidanation.org

920-869-4417

DRUG AND ALCOHOL FREE WORKPLACE LAW AMENDMENTS

The purpose of the Drug and Alcohol Free Workplace law is to establish a drug and alcohol-free workplace

program that balances respect for individuals with the need to maintain an alcohol and drug-free environment.

Amendments to this law are being proposed to provide that an external applicant’s confirmed positive THC

test result shall be exempted from the requirement of a negative drug test result for pre-employment eligibility

in certain circumstances.

Individuals may attend the public meeting for the proposed amendments to the Drug and Alcohol Free Workplace law in person at the Norbert Hill Center, or virtually through Microsoft Teams. If you wish to attend the

public meeting through Microsoft Teams please contact LOC@oneidanation.org.

If the Norbert Hill Center’s Administrative Offices guidelines prohibits a public meeting from being held in

person on February 15, 2023, based on the COVID-19 Community levels in Brown and Outagamie Counties,

then the public meeting will be held solely on Microsoft Teams.

PUBLIC COMMENT PERIOD CLOSES WEDNESDAY, FEBRUARY 22, 2023

During the public comment period, anyone may submit written comments, questions

or input. Comments may be submitted to the Oneida Nation Secretary’s Office or the

Legislative Reference Office in person, by U.S. mail, interoffice mail, or e-mail.

For more information on the proposed amendments to the Drug and Alcohol Free

Workplace law please review the public meeting packet at oneida-nsn.gov/government/register/public meetings.

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DRUG AND ALCOHOL FREE WORKPLACE

LAW AMENDMENTS

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

Intent of the

Proposed Amendments

Purpose

Affected Entities

Public Meeting

Fiscal Impact

Analysis by the Legislative Reference Office

 Provide that an external applicant’s confirmed positive THC test result

shall be exempted from the requirement of a negative drug test result for

pre-employment eligibility in certain circumstances. [2 O.C. 202.8-4(a)].

 For Gaming positions, an external applicant receiving a confirmed

positive test result for THC may qualify for employment if the

position mandates a background check in accordance with 5 O.C.

501.10; the position mandates licensing in accordance with 5 O.C.

501.11; and the position does not require a commercial driver’s

license or job-related driving. [2 O.C. 202.8-4(a)(1)].

 For Non-Gaming positions, an external applicant receiving a

confirmed positive test result for THC may qualify for employment

if the position has not been identified as an employee position which

waived the exemption for positive THC test results. [2 O.C. 202.84(a)(2)].

 Require the Oneida Business Committee to adopt through resolution a list

of all the non-gaming employment positions that waive the exemption for

positive THC test results. [2 O.C. 202.8-4(a)(2)(A)].

The purpose of this law is to establish a drug and alcohol-free workplace

program that balances respect for individuals with the need to maintain an

alcohol and drug-free environment. [2 O.C. 202.1-2].

Human Resources Department, Oneida Nation employees.

A public meeting has not yet been held.

A fiscal impact statement has not yet been requested.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. Background. The Drug and Alcohol Free Workplace law was adopted by the Oneida Business

Committee in 1994 through resolution BC-10-25-95-A and then amended through resolutions BC-1020-99-A, BC-12-05-07-B, BC-12-11-13-F, and BC-04-12-17-C. The purpose of the Drug and Alcohol

Free Workplace law is to establish a drug and alcohol-free workplace program that balances respect for

individuals with the need to maintain an alcohol and drug-free environment. [2 O.C. 202.1-2].

B. Request for Amendments. On August 30, 2022, the Legislative Operating Committee received a

request from the Human Resources Department to add the Drug and Alcohol Free Workplace law

amendments to its Active Files List. The Human Resources Department indicated that with the Benton

– Pre-Employment Drug Testing petition currently pending – which requests to remove THC from the

pre-employment drug testing requirements, they were directed by the Oneida Business Committee to

work with the Oneida Law Office on potential proposed language to address this petition. The

Legislative Operating Committee added this item to its Active Files List on September 7, 2022.

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SECTION 3. CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities participated in the development of the

amendments to the Law and this legislative analysis:

 Oneida Law Office;

 Human Resources Department;

 Gaming; and

 Employee Health Nursing.

B. The following laws were reviewed in the drafting of this analysis:

 Drug and Alcohol Free Workplace law;

 Oneida Personnel Policies and Procedures.

SECTION 4. PROCESS

SECTION 5. CONTENTS OF THE LEGISLATION

A. The development of the proposed amendments to the Drug and Alcohol Free Workplace law complies

with the process set forth in the Legislative Procedures Act (LPA).

 On September 7, 2022, the Legislative Operating Committee added the Law to its Active Files

List.

 On December 7, 2022, the Legislative Operating Committee approved the draft of the proposed

amendments to the Law and directed that a legislative analysis be developed.

 On December 21, 2022, the Legislative Operating Committee approved the legislative analysis.

B. At the time this legislative analysis was developed the following work meetings had been held

regarding the development of the amendments to this Law:

 October 31, 2022: LOC work meeting with the Oneida Law Office, Human Resources

Department, and Gaming.

 November 15, 2022: LOC work meeting with the Oneida Law Office, Human Resources

Department, and Gaming.

 December 1, 2022: LOC work session.

A. Pre-Employment Drug Testing. Currently, the Law provides that each employee, as a condition of

employment, shall participate in pre-employment, reasonable suspicion, and follow-up testing upon the

request of an appropriate authority, and that a negative test result is required for employment eligibility.

The proposed amendments focus specifically on pre-employment drug testing and how positive THC

test results are address by the Nation. The proposed amendments to the Law require that all external

applicants participate in pre-employment drug testing, and that a negative drug test result shall be

required for employment eligibility. [2 O.C. 202.8-4]. The Law then further provides that an external

applicant’s confirmed positive THC test result shall be exempted from the requirement of a negative

drug test result for employment eligibility in certain circumstances. [2 O.C. 202.8-4(a)]. For Gaming

positions, an external applicant receiving a confirmed positive test result for THC may qualify for

employment if the position mandates a background check in accordance with 5 O.C. 501.10; the

position mandates licensing in accordance with 5 O.C. 501.11; and the position does not require a

commercial driver’s license or job-related driving. [2 O.C. 202.8-4(a)(1)]. For Non-Gaming positions,

an external applicant receiving a confirmed positive test result for THC may qualify for employment if

the position has not been identified as an employee position which waived the exemption for positive

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THC test results. [2 O.C. 202.8-4(a)(2)]. The Law then requires the Oneida Business Committee to

adopt through resolution a list of all the non-gaming employment positions that waive the exemption

for positive THC test results. [2 O.C. 202.8-4(a)(2)(A)]. The Law then maintains the requirement that

each employee shall participate in reasonable suspicion and follow-up testing upon the request of an

appropriate authority, and that a negative test result is required for unimpeded employment eligibility.

[2 O.C. 202.8-5].

 Effect. The proposed amendments to the Law allow an individual who is seeking employment with

the Nation to still be eligible to be hired if the individual tests positive for THC in most situations,

unless the position the individual is seeking is in an area that has waived this exemption for positive

THC test results.

SECTION 6. EXISTING LEGISLATION

A. Related Legislation. The following laws of the Nation are related to the proposed amendments to the

Law:

 Oneida Personnel Policies and Procedures. The purpose of the Oneida Personnel Policies and

Procedures is to provide for the Nation’s employee related policies and procedures including

recruitment, selection, compensation and benefits, employee relations, safety and health, program

and enterprise rules and regulations, and record keeping.

 Section V.D.3 of the Oneida Personnel Policies and Procedures provides that the Drug

and Alcohol Free Workplace Policy shall govern disciplinary actions warranting

termination for drug and alcohol related violations.

SECTION 7. OTHER CONSIDERATIONS

A. Waiver of Exemption of Positive THC Test Results for Pre-Employment Drug Testing. The proposed

amendments to the Law require the Oneida Business Committee to adopt through resolution a list of

all the non-gaming employment positions that waive the exemption for positive THC test results. [2

O.C. 202.8-4(a)(2)(A)]. The Legislative Operating Committee has begun collaborating on the

development of this resolution with the Human Resources Department and the Oneida Law Office.

Thus far, the language included in the proposed resolution provides that the following non-gaming

employment positions waive the exemption for positive THC test results: any position which requires

a commercial driver’s license or where driving is a primary function or responsibility of the employee

position; any position within Oneida Comprehensive Health Division; any position within the Oneida

Police Department; and any position which requires regular contact with or control over children. This

means that the above-mentioned positions do not allow a positive THC test result for pre-employment

eligibility.

 Conclusion. The Legislative Operating Committee will need to prepare this resolution to be

presented to the Oneida Business Committee for consideration of adoption when the proposed

amendments are presented to the Oneida Business Committee.

B. Fiscal Impact. Under the Legislative Procedures Act, a fiscal impact statement is required for all

legislation except emergency legislation [1 O.C. 109.6-1]. Oneida Business Committee resolution BC10-28-20-A titled, “Further Interpretation of ‘Fiscal Impact Statement’ in the Legislative Procedures

Act,” provides further clarification on who the Legislative Operating Committee may direct complete

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a fiscal impact statement at various stages of the legislative process, as well as timeframes for

completing the fiscal impact statement.

 Conclusion. The Legislative Operating Committee has not yet directed that a fiscal impact

statement be completed.

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Title 2. Employment – Chapter 202

DRUG AND ALCOHOL FREE WORKPLACE

202.1. Purpose and Policy

202.2. Adoption, Amendment, Repeal

202.3. Definitions

202.4. Application

202.5. Shared Responsibility

202.6. Prohibited Behavior

202.7. Reasonable Suspicion

202.8. Drug and Alcohol Testing

202.9. Refusal to Test

202.10. Reasonable Suspicion Testing Waiting Period

202.11. Consequences for Prohibited Behavior

202.12. Re-hire

202.13. Other Potential Consequences

202.14. Confidentiality

202.15. Communication

202.1. Purpose and Policy

202.1-1. Purpose. The Nation is committed to protecting the safety, health and well-being of all

employees, and other individuals in the workplace. The Nation recognizes that alcohol abuse and

drug use pose a significant health and safety threat to our customers and other employees. The Nation

also recognizes that alcohol and drug abuse and addiction are treatable illnesses. The Nation realizes

that early intervention and support may improve the success of rehabilitation.

202.1-2. Policy. It is the policy of the Nation to establish a drug and alcohol-free workplace program

that balances respect for individuals with the need to maintain an alcohol and drug-free environment.

The Nation encourages employees to voluntarily seek help for their personal drug and alcoholrelated problems.

202.2. Adoption, Amendment, Repeal

202.2-1. This law was adopted by the Oneida Business Committee by resolution BC-10-25-95-A

and amended by resolutions BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F and, BC-04-12-17C., and BC-__-__-__-__.

202.2-2. This law may be amended or repealed by the Oneida Business Committee and/or the

Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.

202.2-3. Should a provision of this law or the application thereof to any person or circumstances be

held as invalid, such invalidity shall not affect other provisions of this law which are considered to

have legal force without the invalid portions.

202.2-4. In the event of a conflict between a provision of this law and a provision of another law,

the provisions of this law shall control.

202.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

202.3. Definitions

202.3-1. This section shall govern the definitions of words or phrases as used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Appropriate authority” means the Human Resources Department hiring representative,

immediate supervisor, EHN, MRO, and/or ONEAP who requests the drug and/or alcohol

testing for reasons of pre-employment, reasonable suspicion, and/or follow-up testing.

(b) “Business day” means Monday through Friday from 8:00am-4:30pm, excluding holidays

recognized by the Nation.

MRO that exceeds the cut-off levels established by this law (levels established by the United

States Department of Health and Human Services), confirmed saliva testing, confirmed

evidential breath alcohol test results of 0.02 or greater; and/or refusal to test.

2 O.C. 202 – Page 1

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(d) “EHN” means the Oneida Employee Health Nursing Department.

(e) “Employee” means any individual who is employed by the Nation and is subject to the

direction and control of the Nation with respect to the material details of the work performed,

or who has the status of an employee under the usual common law rules applicable to

determining the employer-employee relationship. “Employee” includes, but is not limited

to; an individual employed by any program or enterprise of the Nation, but does not include

elected or appointed officials, or individuals employed by a Tribally Chartered Corporation.

For purposes of this law, individuals employed under an employment contract as a limited

term employee are employees of the Nation, not consultants.

(f) “External applicant” means a person who is applying for a position and not currently

employed by the Nation.

(g) “HRD” means the Human Resources Department and/or representatives performing

Human Resources functions applicable to this law.

(h) “Internal applicant” means a person who is applying for a position who is currently

employed by the Nation, this includes those employed under a temporary status.

(i) “MRO” means Medical Review Officer who is a licensed physician who is responsible

for receiving and reviewing laboratory test results generated by an employer’s drug testing

program and evaluating medical explanations for certain drug test results.

(j) “Nation” means the Oneida Nation.

(k) “NHTSA” means the National Highway Traffic Safety Administration.

(l) “ONEAP” means the Oneida Nation Employee Assistance Program which is a

professional counseling program staffed by clinical social workers licensed by the State of

Wisconsin which offers services to the Nation’s employees and family members.

(m) “Prohibited drug(s)” means marijuana, cocaine, opiates, amphetamines, phencyclidine

(PCP), hallucinogens, methaqualone, barbiturates, narcotics, and any other substance

included in Schedules I through V, as defined by Section 812 of Title 21 of the United States

Code. This also includes prescription medication or over-the-counter medicine used in an

unauthorized or unlawful manner.

(n) “Return-to-Work Agreement” means an agreement, developed by an ONEAP counselor

and signed by the employee and the ONEAP counselor, and the referring supervisor, which

sets out the actions the employee needs to complete in order to return to work and remain

employed.

(o) “SAMHSA” means the United States Department of Health and Human Services,

Substance Abuse and Mental Health Services Administration.

(p) “Supervisor” means the immediate supervisor, or person who has taken on the role of

supervisor due to an absence that is responsible for performance review, corrective action,

and day-to-day assignments of duties.

(q) “Work-related accident” means an unexpected event involving an employee that occurs

in the employee’s working environment or during an activity related to work, that:

(1) results in an injury to the employee or another person that may require medical

intervention by a police officer or emergency medical technician, or treatment at a

medical facility,

(2) results in death of the employee or another person, or

(3) involves any property damage.

2 O.C. 202 – Page 2

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202.4. Application

202.4-1. This law applies to all applicants for employment, whether external or internal, and all

employees during working hours, when on-call, and when operating a vehicle owned by the Nation

or a vehicle rented by the Nation.

202.4-2. An employee is prohibited from the use of prohibited drugs and alcohol during working

hours, when on-call, and when operating a vehicle owned by the Nation or a vehicle rented by the

Nation.

202.4-3. An employee is prohibited from the use of intoxicants while on official business travel

while the conference or meeting is in session.

202.4-4. An employee is not exempted from this law if they travel to another state, territory or

country where the use of certain drugs is legal.

202.5. Shared Responsibility

202.5-1. A safe and productive drug and alcohol free workplace is achieved through cooperation

and shared responsibility between the employer and an employee.

202.5-2. Employee. It is the employee’s responsibility to:

(a) Be free from the effects of prohibited drugs, and/or alcohol during working hours, and/or

when scheduled to be on-call.

(b) Refrain from the unlawful manufacture, distribution, dispensation or possession of any

prohibited drugs while working.

appropriate authority.

(d) Confidentially report suspicious behavior of an employee immediately to the supervisor

of the employee in question.

(e) Cooperate with the requests made by EHN and the MRO. The employee shall return the

call of the MRO within twenty-four (24) hours of the call being made to the employee. An

employee who fails to cooperate and does not contact the MRO within twenty-four (24) hours

of receiving contact shall not receive back pay for any time between the date the MRO placed

the call until the time the employee does return the call of the MRO.

(f) Sign a consent form to be tested for alcohol and drugs when requested by an appropriate

authority.

(g) Provide the appropriate information to EHN in the event a medical condition prevents

the employee from properly completing drug and alcohol testing so alternative drug and

alcohol testing measures can be taken by EHN.

202.5-3. Supervisor. It is the supervisor’s responsibility to:

(a) Be familiar with this law and any related policies and procedures.

(b) Investigate reported suspicious behaviors while maintaining the confidentiality of the

person who reported the suspicious behavior.

prohibited drugs and/or alcohol.

(d) Monitor the employee under the influence of prescription and/or over-the-counter

medications that could compromise the safety of the employee, fellow employees, or the

public.

(e) Send the employee through the contracted transportation service for reasonable suspicion

drug and alcohol testing.

2 O.C. 202 – Page 3

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(f) Take appropriate action as outlined by this law.

(g) Sign the Return-to-Work Agreement along with the employee and ONEAP counselor

that was developed by ONEAP.

(h) Send a copy of the consent to submit to drug and alcohol testing form signed by the

employee to EHN.

202.5-4. Supervisor and Employee. A supervisor or an employee that fails to adhere to the

responsibilities of the supervisor or employee under this law may be subject to disciplinary action

or other consequences as explained in section 202.13.

202.5-5. Off-duty Use of Prohibited Drugs or Alcohol. Off-duty use of prohibited drugs or alcohol

may result in continued impairment during on-duty hours, which shall then constitute a violation of

this law. It is the employee’s responsibility to understand the consequences of off-duty use, and take

steps to avoid the possibility of on-duty impairment. An employee who is called in for emergency

or unplanned work, excluding those on-call, and has been using prohibited drugs or drinking

alcoholic beverages prior to such a call, shall inform the employee’s supervisor they cannot report,

and shall continue to decline to report until the effects of the prohibited drugs or alcohol have left

the employee’s system. Such refusal to report shall not be viewed as improper, and disciplinary

action shall not arise from such refusal.

202.5-6. Use of Controlled Substances That May Affect Safety or Performance. An employee who

is taking or is under the influence of any controlled substances during working hours, including

prescription medication or over the counter medication, which may affect the employee’s job

performance or safety of the employee, fellow employees, public, or assets of the Nation have the

following obligations:

(a) The employee shall notify the employee’s immediate supervisor about the use of the

substance and possible work-related effects prior to commencing work.

(b) Upon request, the employee may be required to obtain a written statement of any work

restrictions or impact on performance or safety relating to the legal substances from the

employee’s physician or pharmacist.

person, and shall not take medications that are prescribed to another person.

(d) It may be necessary for the employee’s supervisor, area manager or EHN to consult with

the employee’s personal physician, pharmacist or an MRO, with the employee’s approval

or written authorization, to determine if the medication might impact the employee’s

ability to perform the employee’s job, or pose a hazard to other employees or to the

general public.

(e) The employee’s duties may be temporarily modified for up to one hundred eighty (180)

days. Any modification of duties shall result in the appropriate modification of pay as

established by the Human Resources Department.

202.6. Prohibited Behavior

202.6-1. An applicant or employee of the Nation is in violation of this law if he or she:

(a) Uses, possesses, and/or sells prohibited drugs, or is under the influence of prohibited

drugs or alcohol while on duty. Notwithstanding section 202.11, any employee who is

caught using, possessing or selling prohibited drugs shall be immediately terminated from

employment with the Nation.

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(b) Fails to inform his or her supervisor of being under the influence of prescription

medication and/or over-the-counter medication(s) which may affect the employee’s job

performance or safety of the employee, fellow employees, public, or assets of the Nation.

medications.

(d) Refuses to test.

(e) Has a confirmed positive test result after completing a drug and/or alcohol test through

EHN or a medical facility, or has a confirmatory test come back as positive.

202.7. Reasonable Suspicion

202.7-1. Establishing reasonable suspicion begins when the supervisor becomes aware either by

personal observation and/or secondary reported observation that an employee may be under the

influence of drugs and/or alcohol: this may include seeing or receiving a report that the employee

has taken or possess prohibited drugs or prescription medication that is not specifically prescribed

to that employee. In order to make a reasonable suspicion determination, the supervisor shall

evaluate the following:

(a) Specific observations concerning appearance, behavior, speech, or body odors of the

employee consistent with possible drug use or alcohol misuse.

(b) The observations may include indications of the chronic and withdrawal effects of

prohibited drugs or alcohol.

202.7-2. The supervisor shall document his or her observations and discuss the matter with the

employee. During this discussion, the supervisor may ask the employee for proof of a prescription.

The employee shall comply with this request. If after a discussion with the employee, the supervisor

continues to suspect the employee may currently still be under the influence or reasonable suspicion

is otherwise established, the supervisor shall refer the employee for reasonable suspicion drug and

alcohol testing.

202.7-3. A supervisor’s decision made in regard to the reasonable suspicion drug and alcohol testing

of an employee is final. An employee shall not appeal or challenge a supervisor’s determination for

reasonable suspicion drug and alcohol testing.

202.8. Drug and Alcohol Testing

202.8-1. Drug and alcohol tests are forensic in nature, meaning they are performed to formalize

conditions of employment as described in this law. To ensure the accuracy and fairness of this law,

all drug and alcohol testing shall be conducted according to SAMHSA guidelines for Federal

Workplace Drug Testing Programs.

202.8-2. EHN or its designee shall use Federal Drug Administration approved urine tests and

NHTSA certified evidential breath testing devices or NHTSA certified saliva-screening devices,

operated by technicians whose training terminology, procedures, methods, equipment, forms, and

quality assurance comply with best practices.

(a) Confirmation drug testing done on urine specimens shall be conducted by a laboratory

which is certified by the U.S. Department of Health and Human Services using its

confirmation methods and established cut-off levels. Laboratory-confirmed results shall

undergo the verification process by a MRO.

(b) Confirmation breath alcohol testing shall be performed using an NHTSA certified

evidential breath testing device.

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certified saliva test.

202.8-3. If an employee is involved in a work-related accident, he or she shall immediately inform

his or her supervisor of the accident.

202.8-4. Each employee, as a condition of employment,All external applicants shall participate in

pre-employment, reasonable suspicion, and follow-up drug testing upon the request of an appropriate

authority.. A negative drug test result shall be required for employment eligibility.

(a) Exemption for Positive THC Test Result. An external applicant’s confirmed positive THC

test result shall be exempted from the requirement of a negative drug test result for

employment eligibility in the following circumstances:

(1) External Applicants for Gaming Positions. An external applicant receiving a

confirmed positive test result for THC may qualify for employment if:

(A) the position mandates a background check in accordance with 5 O.C.

501.10;

(B) the position mandates licensing in accordance with 5 O.C. 501.11; and

driving.

(2) External Applicants for Non-Gaming Positions. An external applicant receiving

a confirmed positive test result for THC may qualify for employment if the position

has not been identified as an employee position which waived the exemption for

positive THC test results.

(A) The Oneida Business Committee shall adopt through resolution a list of

all the non-gaming employment positions that waive the exemption for

positive THC test results.

202.8-5. Each employee shall participate in reasonable suspicion and follow-up testing upon the

request of an appropriate authority. A negative test result is required for unimpeded employment

eligibility.

202.8-6. Dilution of Test Results. In cases where a drug test result is diluted, a positive dilute of the

test result requires that the applicant or employee shall be given a confirmed positive test result,

while a negative dilute of the test result requires retesting. EHN shall notify the applicant or

employee of the required retesting.

(a) If the re-test results in a negative-dilute, the applicant or employee shall be given a

negative test result.

(b) If the re-test results in a positive-dilute, then the applicant or employee shall be given a

positive test result.

202.9. Refusal to Test

202.9-1. Refusal to test is prohibited behavior as defined in section 202.6. Refusal to test carries

the same consequences as a confirmed positive test result. Examples of refusal to test include, but

are not limited to:

(a) Substituting, adulterating (falsifying), or diluting the specimen.

(b) Refusal to sign the required forms.

accurate testing and as directed by the collector.

(d) Failing to remain at the testing site until the testing process is complete.

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(e) Providing an insufficient sample of urine or breath.

(f) Failing to test or to re-test.

(g) Failing to appear within two (2) hours after an order or request is made for testing or retesting.

(h) Behaving in a confrontational or discourteous manner that disrupts the collection process.

202.10. Reasonable Suspicion Testing Waiting Period

202.10-1. This section applies only to current employees who meet the reasonable suspicion

standard. It does not apply to applicants of the Nation.

202.10-2 During drug and alcohol testing for reasonable suspicion, an employee shall be

immediately removed from duty without pay at the time of initiation of the reasonable suspicion

drug and alcohol testing and specimen collection until the employer is notified by EHN of negative

results on both the drug and alcohol tests, or MRO-verified negative test results.

202.10-3. When confirmation of test results are made available to the employer, the supervisor shall

notify the employee by telephone and by certified mail using the contact information provided by

the employee. The notice to the employee shall identify a reinstatement date if the test was

confirmed negative, or applicable consequences if the test was confirmed positive. If the employee

is reinstated, back pay shall be provided in accordance with the Back Pay law. However, if the

employee fails to return to work on the assigned reinstatement date as instructed in the notice from

the supervisor, the supervisor shall discipline the employee in accordance with the Nation’s laws,

rules and policies governing employment, unless an extension is granted in writing by the supervisor

along with the reason for the extension. An employee who is ultimately terminated for failure to

return to work on his or her assigned reinstatement date shall not be eligible for employment for one

(1) year after the date of termination.

202.11. Consequences for Prohibited Behavior

202.11-1. Either an internal applicant or an external applicant may decline the position at any time

before being directed to EHN or other designated testing site for the applicant’s drug and alcohol

testing.

202.11-2. External Applicant. If an external applicant fails to show at the testing site within the

time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at

section 202.6 that has been documented, the employment offer shall be withdrawn. An external

applicant shall not be eligible for hiring consideration for one hundred eighty (180) days from the

date of the urine drug screening test.

202.11-3. Internal Applicant. If an internal applicant fails to show at the testing site within the time

allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at section

202.6, the employment offer shall be withdrawn. The applicant shall be removed from duty and

subject to respective consequences of this law. The applicant shall not be eligible for hiring

consideration in a different position for one hundred eighty (180) days from the date of the urine

drug screening test.

202.11-4. Employee. If an employee has engaged in prohibited behavior as listed in section 202.61, and/or fails to cooperate by not responding to contact from the MRO within ten (10) business days

(which shall be deemed thereafter as a definite positive test), the employee shall be removed from

duty and subject to the respective consequences of this law.

202.11-5. Consequences.

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(a) First Violation.

(1) Any employee who engages in prohibited behavior as defined in section 202.6

for the first time shall be removed from duty without pay and shall receive a

mandatory referral to ONEAP for an assessment. The ONEAP shall also determine

if the employee shall be subject to return-to-duty/follow-up testing. If follow-up

testing is required, the testing shall be at the employee’s expense.

(2) The employee shall sign a Return-to-Work Agreement and submit the agreement

to his or her supervisor within ten (10) days or the employee shall be terminated and

ineligible for re-hire for one (1) year.

(A) When the supervisor signs the Return-to-Work Agreement the employee

shall be placed back on the work schedule by the next regularly scheduled

workday.

(3) Failure to comply with the signed Return-to-Work Agreement shall result in the

employee being terminated and ineligible for re-hire for one (1) year.

(b) Second Violation.

(1) Any employee who engages in prohibited behavior as defined in section 202.6 a

second time within his or her lifetime of employment with the Nation shall be

removed from duty without pay and shall receive a mandatory referral to ONEAP for

an assessment.

(2) The employee shall sign a Return-to-Work Agreement and submit it to the

employee’s supervisor for signature within ten (10) days or the employee shall be

terminated and ineligible for re-hire for one (1) year. After a second violation the

employee shall not be placed back on the work schedule until:

(A) The employee receives approval from the ONEAP that they have

demonstrated sufficient progress in a treatment program that would indicate

the employee is drug and alcohol free within thirty (30) days of the employee

being removed from duty; and

(B) The employee completes a return-to-duty drug screening and alcohol test

at a SAMHSA-certified facility at their own expense, which shall be negative

within thirty (30) days of the employee being removed from duty;

to work.

(3) As a condition of continuing employment, the employee shall participate in

follow-up testing with continued negative results as directed by the ONEAP and

listed in the Return-to-Work Agreement. All follow-up testing shall be at the

employee’s expense.

(4) Failure to comply with the Return-to-Work agreement or follow up testing shall

result in the employee being terminated and ineligible for re-hire for one (1) year.

(1) Any employee who engages in prohibited behavior as defined in section 202.6 a

third time in his or her lifetime of employment with the Nation shall be terminated.

The employee shall not be eligible for employment unless he or she receives a

forgiveness pursuant to the Pardon and Forgiveness law. An employee that receives

forgiveness shall not be eligible for re-hire for one (1) year after the date of

termination.

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202.12. Re-hire

202.12-1. A former employee that was terminated due to violations of this law shall provide, along

with the former employee’s application for employment, the following:

(a) Proof of completion of a certified Alcohol and Other Drug Abuse program; and

(b) A negative drug screening and alcohol test at a SAMHSA-certified facility completed

within the last thirty (30) days. This drug screening and alcohol test shall be done at the

former employee’s own expense.

202.13. Other Potential Consequences

202.13-1. The violation of this law may result in consequences to the employee beyond any

discipline or corrective action that may be taken. Other potential consequences include the

following:

(a) Disqualification of Unemployment Benefits. An employee who is terminated as a result

of a violation of this law may be ineligible for unemployment benefits.

(b) Reduction of Workers Compensation Benefits. An employee who incurs an injury in a

work-related accident that occurred while engaged in a violation of this law may have any

workers compensation benefits reduced.

may be referred to appropriate law enforcement for criminal prosecution.

(d) Liability for Accidents. An employee whose conduct in violation of this law causes an

accident may be held personally responsible for losses associated with the accident, and the

employee may be required to pay for those losses.

202.14. Confidentiality

202.14-1. Information related to the application of this law is confidential. Access to this

information is limited to those who have a legitimate “need to know” in compliance with relevant

laws and personnel policies and procedures.

202.14-2. All drug and alcohol testing information shall be maintained at EHN in confidential

records which are separate from the employee’s clinical and personnel files. The employee may

request a copy of the employee’s records. The records may be requested by a third party in

accordance with the Oneida Nation’s laws, rules and policies governing employment.

202.15. Communication

202.15-1. HRD shall communicate this law to all employees to ensure all employees are aware of

their role in supporting this law:

(a) All employees shall be given information on how to access this law.

(b) This law shall be reviewed in new employee orientation and other means, as deemed

appropriate by HRD.

this law, have read and understand it, and agree to follow this law.

End.

See GTC-01-31-94-B

Adopted – BC-08-17-94

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Emergency Amended - BC-04-20-95-C

Adopted - BC-10-25-95-A (repealed previous versions)

Amended - BC-10-20-99-A

Amended - BC-12-05-07-B

Amended - BC-12-11-13-F

Emergency Amended - BC-10-26-16-D

Amended - BC-04-12-17-C

Amended – BC-__-__-__-__

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