# Oneida Business Committee (2024) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A5b07483fcb33a895 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 1 of 94 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 3, 2024 9:00 a.m. I. Call to Order and Approval of the Agenda II. Minutes to be Approved 1. December 20, 2023 LOC Meeting Minutes (pg. 2) III. Current Business 1. Drug and Alcohol Free Workplace Law Amendments (pg. 4) 2. Clean Air Policy Amendments (pg. 60) IV. New Submissions V. Additions VI. Administrative Updates VII. Executive Session VIII. Recess/Adjourn A good mind. A good heart. A strong fire. 2 of 94 Oneida Nation "' Oneida Business Committee Legislative Operating Committee OODDDD= PO Box 365 • Oneida, WI 54155‐0365 ONEIDA Oneida‐nsn.gov LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center December 20, 2023 9:00 a.m. Present: Jameson Wilson, Marlon Skenandore, Jennifer Webster, Kirby Metoxen, Jonas Hill Others Present: Clorissa N. Leeman, Grace Elliott, Keith Doxtator, Brooke Doxtator, Maureen Perkins, Kristal Hill, Fawn Cottrell Others Present on Microsoft Teams: Michelle Tipple, Rhiannon Metoxen, Jo Anne House, Matt Denny, Peggy Helm-Quest, Todd Vandenheuvel, Janice Decorah, Rae Skenandore, Connor Kestell, Tony Doxtator, Linda Dallas, Diane Hill, Eric Boulanger, Justin Nishimoto, Tracey Smith, Michelle Tipple, David P. Jordan, James Poels, Fawn Billie, Kristine Hill, Tawny Danforth, Bonnie Pigman, Terri Schiltz I. Call to Order and Approval of the Agenda Jameson Wilson called the December 20, 2023, Legislative Operating Committee meeting to order at 9:00 a.m. Motion by Jennifer Webster approve the agenda; seconded by Jonas Hill. Motion carried unanimously. II. Minutes to be Approved 1. December 6, 2023 LOC Meeting Minutes Motion by Jennifer Webster to approve the December 6, 2023, LOC meeting minutes; seconded by Marlon Skenandore. Motion carried unanimously. III. Current Business 1. Drug and Alcohol Free Workplace Law Amendments Motion by Jennifer Webster to accept the public comments and the public comment review memorandum and defer to a work meeting for further consideration; seconded by Marlon Skenandore. Motion carried unanimously. 2. Onʌyoteʔaꞏká niʔi Commission Bylaws Motion by Jennifer Webster to remove the Onʌyoteʔaꞏká niʔi Commission Bylaws from the Active Files List; seconded by Marlon Skenandore. Kirby Metoxen and Jonas Hill opposed. Motion carried. A good mind. A good heart. A strong fire. Legislative Operating Committee Meeting Minutes of December 20, 2023 Page 1 of 2 ~ ONEIDA 3 of 94 Motion by Jennifer Webster to direct the Legislative Reference Office/Legislative Operating Committee to report out at the next semi-annual GTC meeting regarding development of standing committee for the Onʌyoteʔaꞏká niʔi Project Plan; seconded by Marlon Skenandore. Motion carried unanimously. IV. New Submissions 1. SEOTS Bylaws Amendments Motion by Jennifer Webster to add the SEOTS Bylaws Amendments to the Active Files List with Jonas Hill as the sponsor; seconded by Kirby Metoxen. Motion carried unanimously. V. Additions VI. Administrative Items VII. Executive Session VIII. Adjourn Motion by Jennifer Webster to adjourn at 9:32 a.m.; seconded by Marlon Skenandore. Motion carried unanimously. Legislative Operating Committee Meeting Minutes of December 20, 2023 Page 2 of 2 4 of 94 Oneida Nation "' Oneida Business Committee Legislative Operating Committee =DODDOO PO Box 365 • Oneida, WI 54155-0365 ONEIDA Oneida-nsn.gov Legislative Operating Committee January 3, 2024 Drug and Alcohol Free Workplace Law Amendments Submission Date: 9/7/22 LOC Sponsor: Kirby Metoxen and Jonas Hill Public Meeting: 2/15/23 Emergency Enacted: N/A Summary: This item was carried over from last term. 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 originally 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 Page 1 of 3 A good mind. A good heart. A strong fire. 5 of 94 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. 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. 1/4/23 LOC: Motion by Jennifer Webster to 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; seconded by Kirby Metoxen. Motion carried unanimously. 1/26/23: Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Cornelius, Daniel Guzman King, Clorissa N. Leeman, Mary Cornelissen, Lucy Neville, Fawn Rasmussen, Grace Elliott, Kristal Hill, Peggy Van Gheem, Matt Denny, Whitney Wheelock, Carl Artman, Wendy Alvarez, Lorna Skenandore, Nic Reynolds, Mark Powless, Todd Vanden Heuvel, Carolyn Salutz. This was a work meeting held on Microsoft Teams. The purpose of this work meeting was to review the resolution regarding which employee positions should waive the proposed exemption for positive THC test results in pre-employment drug testing. 2/15/23: Public Meeting Held. Present: Jennifer Webster, Kirby Metoxen, Clorissa N. Leeman, Grace Elliott, Brooke Doxtator, Nancy Barton, Linda Dallas, Cathy L. Metoxen, Carol Silva, Dana Thyssen, Jessica Vandekamp, Joy Salzwedel, Kristal Hill, Lucy Neville, Mark Powless, Mary Graves, Mike Debraska, Monica Doxtator, Peggy Van Gheem, Robert Sundquist, Sidney White, Carrie Lindsay, Kristen Jorgenson-Dann, Rachel Fitzpatrick, Stefanie Reinke, Sherrole Benton. This public meeting was held in person in the Norbert Hill Center’s Business Committee Conference Room as well as on Microsoft Teams. Six (6) individuals provided oral comments during this public meeting. 2/22/23: Public Comment Period Closed. Four (4) individuals provided written comments during the public comment period. 10/4/23 LOC: Motion by Jennifer Webster to add the Drug and Alcohol Free Workplace Law Amendments to the Active Files List with Kirby Metoxen and Jonas Hill as the sponsors; seconded by Jonas Hill. Motion carried unanimously. 12/6/23: Work Meeting. Present: Jameson Wilson, Jennifer Webster, Kirby Metoxen, Marlon Skenandore, Jonas Hill, Clorissa Leeman, Grace Elliott, Maureen Perkins, Fawn Cottrell, Kristal Hill. The purpose of this work meeting was to review the proposed amendments to the Drug and Alcohol Free Workplace law that went to public meeting. 12/20/23 LOC: Motion by Jennifer Webster to accept the public comments and the public comment review memorandum and defer to a work meeting for further consideration; seconded by Marlon Skenandore. Motion carried unanimously. 12/20/23: Work Meeting. Present. Jameson Wilson, Kirby Metoxen, Jennifer Webster, Jonas Hill, Marlon Skenandore, Clorissa Leeman, Brandon Yellowbird Stevens, Grace Elliott, Maureen Perkins, Kristal Hill, Fawn Cottrell. The purpose of this work meeting was to review and consider the public comments received. A good mind. A good heart. A strong fire. Page 2 of 3 ~ ONEIDA 6 of 94 Next Steps:  Approve the updated public comment review memorandum, draft, and legislative analysis.  Approve the fiscal impact statement request memorandum and forward to the Finance Department directing that a fiscal impact statement be prepared and submitted to the LOC by January 17, 2024. A good mind. A good heart. A strong fire. Page 3 of 3 ~ ONEIDA 7 of 94 Oneida Nation Legislative Operating Committee Legislative Reference Office PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov TO: FROM: DATE: RE: "' =DODDOO ONEIDA Legislative Operating Committee (LOC) Clorissa N. Leeman, Legislative Reference Office, Senior Staff Attorney January 3, 2024 Drug and Alcohol Free Workplace Law Amendments: Public Comment Review with LOC Consideration On February 15, 2023, a public meeting was held regarding the proposed amendments to the Drug and Alcohol Free Workplace law (“the Law”). The public comment period was then held open until February 22, 2023. The Legislative Operating Committee reviewed and considered the public comments received on December 20, 2023. This memorandum is submitted as a review of the comments received within the public meeting and public comment period. Comments 1 through 13 – Concern with Exemption for Positive THC Test Results: 202.4. Application 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. 202.8. Drug and Alcohol Testing 202.8-4. All external applicants shall participate in pre-employment drug testing. 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 (C) the position does not require a commercial driver’s license or jobrelated 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. Page 1 of 19 A good mind. A good heart. A strong fire. 8 of 94 Nancy Barton (oral): I wanted to participate today in the Drug and Alcohol Free Workplace law amendments. I haven't participated recently in the LOC. I go back as far as ten (10) years when Doug McIntyre worked in the LOC office and the issues at that time were we were part, people were participating in the public hearing and in the written comments. And at that time it was a common. I guess the dialogue that the Community members are general tribal Council members felt like they're participation wasn't being taken seriously and so that was one of the reasons why I discontinued my participation in the in the LOC process, specifically speaking about this law. You know, I did question how many active files were on the LOC list, and I'm concerned about this coming forward. There today I received a notice that on the quality of life agenda there was a request to pursue developing a detox and treatment center. After reading this law, there was no fiscal impact included, and I'm concerned about that because all of this would include liability and what is the risk of our employees coming to work under the influence of THC? I believe that each and every person has the right to do things that they wanna do in their own personal life. But when you are an employee. Being an employee is a privilege and we have a reputation. We have integrity. And the entities that are, I'm afraid that it will protect it would not protect would be retail gaming. Those people who operate vehicles and are heavy equipment. Nancy Barton (oral): You know, try to talk to my grandchildren and my children, you know about the use of drugs and about being clean and about having a sober environment and home and lifestyle. And so this was very concerning to me that we would be wasting time at the LOC. It seemed like a very selfish. Umm. Law to come forward because you know, I don't think that it's common that people would agree to having this law come forward. There's, you know, two people here today. So those were the reasons why I decided to come here today and offer my my public comments. So thank you. Mike Debraska (oral): Thank you, Michael Debraska an all nighter roll 10 number 10738. I have a number of reasons for wanting to comment on this particular amendment to the drug and alcohol policy changes. First off, I don't believe that there should be any changes made to this current drug and alcohol policy. Instead of eliminating the testing for marijuana, I believe we should be having more people subjected to it and having it done specifically for the casino, I think. Poses of a real detriment to the nation. What happens if somebody comes in high? And something happens. It's, as Nancy said, it's not only a liability issue. They are subjecting our money, making revenue stream to all kinds of issues. And I just don't believe this is a very good idea at all. Mike Debraska (oral): Additionally, there were some comments at lines 58 and 59 on page four of the analysis. Hold on and that states. But the law required the law, then requires the unite of Business committee to adopt, through a resolution, a resolution, a list of all non gaming employment positions that waive the exemption for positive THC results. The law then maintains that 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 to unimpeded is an impediment employment eligibility. So I just, I don't know, I I look at this and I say I think we're treading on some real real dangerous ground here. And I think this is going to be a very slippery slope for the tribe if they were to go ahead with us. So Umm, but as I said I'm, I'm just I'm not in favor of this. If anything, we should be expanding that list, not trying to do away with it. And as I understand, and again, I don't know. I know there's a labor shortage, but to lower A good mind. A good heart. A strong fire. Page 2 of 19 ~ ONEIDA 9 of 94 the standards to this, I think especially for our money making operation I think is truly dangerous. So and I have submitted my my questions via online in a Microsoft Word document that I sent them to the LOC e-mail address. Thank you. Mary Graves (oral): Mary Graves: I'm Mary graves. Hi. I just have a I don't know if I have a comment or if I have a question, but I am not in support of taking THC off of. Umm, the pre employment drug screening and the proposed amendment has some listings for gaming as far as if the position mandates a background check or licensing and doesn't require a commercial driver's license. But for the external or not the non gaming positions, none of those things are required and I don't know how those things being required have anything to do with. A drug test because if you are smoking pot, that's not gonna show up on a background check unless you've been arrested, it's not gonna show up in the licensing application, and you probably already have your CDL, so it won't show up on that. So I don't know how putting those provisions in there addresses anything, and I'm concerned about the. Umm. You can buy weed now. Whether you're smoke it regular or you get it in a cartridge and vape it. Or you can put it under your tongue in a tincture. There's 100 different ways. That's an exaggeration that you can ingest THC. And there's just as many ways that you can. Counter act. The effects and be the drug test. So. I don't want to open the door to potentially employees using a tincture or. Vaping on their break and opening that door to it's OK. I passed my employment and as long as I don't act suspicious, nothing will happen to me and I don't know a lot about the drug itself. But I do have a friend that uses and when that person uses they are more focused than they were prior to, so a supervisor wouldn't necessarily know that they were higher than a kite. So those are my concerns and thank you. Mark Powless (oral): Mark Powless: Thank you for the opportunity to speak. Mark Powless, general manager. I just want to state for the record that the areas that report to the general manager and I'll I'll run through those quickly, Big Bear Media, Comprehensive Health Division, Comprehensive Housing division, digital technology services, education and Training branch office, environmental, health, safety, land and Agriculture division, Governmental Services Division, Division of Public Works and. Tribal action plan we all met collectively to talk on this topic. All areas unanimously are opposed to allowing the hiring of individuals that test positive for THC. There are a number of of health factors and safety factors in our workplaces where we do not want to take the risk of having an individual under the influence of THC. Working in our workspaces, so again the areas reporting to the general manager unanimously are opposed to hiring any individuals that test positive for THC. Also, one additional note from a social aspect, there is a challenge with sending a message to our community that it is OK to use marijuana, particularly for our youth. Who can be negatively impacted in their physical and emotional development through the use of early marijuana use? It is very challenging for us to send that message to the Community that it's OK to use marijuana regardless of whether or not marijuana is approved in the state or not approved in the state. There are particular health factors for our youth when it comes to using. Marijuana. Thank you. Mike Debraska (written): I do not believe there should be any changes made to the current Drug & Alcohol Policy of the Oneida Nation with respect to the usage and testing for marijuana until the following comments and questions are answered properly. The comments and questions are as follows: A good mind. A good heart. A strong fire. Page 3 of 19 ~ ONEIDA 10 of 94 1. Currently, recreational use of marijuana is illegal in the State of Wisconsin. While medical, in certain instances is allowable for specific diseases, it will have a detrimental affect on the employment base and cause more dissention among employees, fund units, and departments as to who will be tested and when; and Mike Debraska (written): 3. If the tribe no longer wishes to test or screen for the recreational use of marijuana of those who seek current and future employment with the tribe, could it affect the Gaming Compact with the State of Wisconsin? and Mike Debraska (written): 4. Will the tribe attempting to change the current Drug & Alcohol policy affect current and future grant monies should the state be notified of this possible change? and Mike Debraska (written): 5. Which departments and/or fund units will no longer have the testing/screening for possible marijuana use? and Mike Debraska (written): 6. If police, first responders, and medical staff---this law will not apply to them or they are exempt, If specific employees, fund units, or departments could potentially be exempt from the testing, then isn’t the tribe causing dissention amongst the employees, fund units and departments; and Mike Debraska (written): 9. How will this potential change in testing to the current Drug & Alcohol Policy affect gaming if their employees are allowed to come into work high and potentially risk the damage of the reputation to our money making revenue source of the nation? When the current questions and comments above are answered satisfactorily, then I may consider changing my view. Until then, if the LOC and BC seriously consider this change, it will all be brought forward by way of petition to be in front of GTC for their input along with the original requestor’s name being used and the BC members who supported this idea. Page 1 – Lines 17-18 Line 24 Page 2 – Lines 15-24 Sec. 3 Consolidation and Outreach Page 4 – Lines 58-59 Sec. 7 – Other Considerations Lines 89-92 Julie Barton (written): I respectfully request that these comments would be seriously considered in the decision making for the above law. I do not have a computer and also have arthritis in my hands. When I first heard that a petition was submitted to “exempt” applicants/potential employees from positive THC test results, which I understand that this positive result would not prevent one from employment. I was immediately concerned that the Oneida Nation would be taking steps backwards in the already difficult job of fighting drugs. A good mind. A good heart. A strong fire. Page 4 of 19 ~ ONEIDA 11 of 94 Many people have been extremely concerned about drug use and how it has progressed from THC to consuming our people which has led to the “hard stuff.” The efforts to combat drug use began many years ago. Alcohol being the worst enemy than and now. Our community has drugs more dangerous and impairing of the body and mind, results being that drugs, including THC have been just the beginning of the worst, fentanyl etc. Now someone wants to remove protections in place to weaken the goals of a “Drug Free: Community. Why would we need to change those efforts now when the law before us is only one significant part of the entire fight to combat what is dangerous to everyone. These comments come from my many years (83) of experience working elsewhere and with the growth of our Oneida Nation. Also, I asked many people I know; family, friends, and professionals; mothers who have lost loved ones. THC seemed to be the introduction to the worst drugs. There is nothing that the THC adds anything to our quality of life or sovereignty to the Oneida Nation. The drug lords (sellers) persuade the innocent that is OK to acquire a better “high” and the sadness begins in other words we as a Nation have lost those with addiction. The Nation Chiefs and traditionalists say drug use is not native, there is no association to any tribal ceremonies. It is a mind changer and impairs judgement; experts who have done testing also found that by observation THC affects performance, slow reactions and ineffective in decision making. During my experience and education I observed these behaviors for which we should all be informed about so we don’t have issues beginning with THC, and observing those who may be under the influence. We can’t stand by while THC and other drugs take away our resources, our Oneida people. Are we promoting drug use or impairment on the job. Is it now ok to be affected and serve our customers, taking care of babies. Under the influence pertains to almost every job. (2,000+) THC as used as “recreational” has effects lasting 28 days. If the petition passes the employee can “light up” just before work. I support the efforts of the medical and scientific research as a valuable medical treatment, lawful and legal and well regulated. If all good intentions are used we can let the expert forces do their job. Also CBD and hemp have nothing to with THC if done right. What about Risk Management. Hopefully we can get their opinion? How do impaired employees affect risks overall. Is it Ok to be impaired while responsible for our valuable resources? We are experiencing/expressing Sovereignty by having the Drug and Alcohol Workplace Law. Many people have tried and succeeded the difficult task of working toward the “Drug Free Environment.” This effort sounds impossible at times since we know we have it all around us. We’re losing future leaders and talents of promising youth, whom we count on to be our future leaders. A good mind. A good heart. A strong fire. Page 5 of 19 ~ ONEIDA 12 of 94 If the petition request is passed it will be a major “step backward” to having the “Good Mind, Body, and Spirit.” Please consider that over 2,000 employees are entrusted with the care of assets that flow through our enterprises daily, our well-being, our babies, elders, our future. Where and when will a decision be made? I hope ASAP? A No Vote can be done/upheld by strong leadership of the LOC BC and/or GTC. I also support random drug testing although not specific to the petition, it is part of the overall fight against the fight. This effort was tried in the 90’s but didn’t sit well enough to continue the effort, due to supposed legal issues. Drug testing (for many other drugs) is not considered to violate anyone’s rights, only to protect the tribe and employees as well as customers who may be served by impaired individuals. If this petition passes and we are trying to fight the overall fight on drugs then what are we doing to all the efforts done now and in the future for a drug free Oneida? We will have defeated the purpose. Much work is ahead in those efforts! Why give up or change now? We cannot go backward! I respectfully submit my comments for you as decision makers. I lived in Chicago for 14 years, found a husband, had kids, but always wanted to go home. Then convinced my family and home Oneida would be good for us, and it is. Many years of experience/employment in Chicago and Oneida have therefore I feel that is the basis for my comments the above allows me the background to share with you the LOC, also please consider that I gather much information from family, friends and professionals, especially focused on those who experienced the effects of those they loved and sometimes lost. THC was always just the beginning as loved ones advanced to the “hard stuff.” We must find the sellers as an important part of the fight the most dangerous. If you need me to decipher the above, I will help as needed. The utmost Thank you for your decision making authority to do the best for Oneida. 920-869-2294 Response The commenters express a variety of concerns regarding potential implications of the proposed amendments to the Drug and Alcohol Free Workplace law, as well as general opposition to the Nation providing an exemption for positive THC test results in certain circumstances. The proposed amendments to the Drug and Alcohol Free Workplace law focus on pre-employment drug testing. All external applicants are required to participate in pre-employment drug testing. [2 O.C. 202.8-4]. An external applicant is a person who is applying for a position and not currently A good mind. A good heart. A strong fire. Page 6 of 19 ~ ONEIDA 13 of 94 employed by the Nation. [2 O.C. 202.3-1(f)]. A negative drug test result is required for employment eligibility. Id. The proposed amendments then provide an exemption for positive THC test results in certain circumstances. This means 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 the specific circumstances. [2 O.C. 202.8-4(a)]. An external applicant for a position in Gaming, who receives a confirmed positive test result for THC may still 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)]. An external applicant for a non-Gaming position who receives a confirmed positive test result for THC may still 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. 202.8-4(a)(2)]. The Oneida Business Committee is delegated the responsibility 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)]. To clarify, the exemption for positive THC test results applies only to external applicants during pre-employment drug testing. Once an individual is hired by the Nation, the 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. [2 O.C. 202.4-2]. All employees of the Nation are required to participate in reasonable suspicion and follow-up testing upon the request of an appropriate authority. [2 O.C. 202.8-5]. A negative test result is required for unimpeded employment eligibility. Id. The Legislative Operating Committee had great discussion regarding the fact that an external applicant’s positive THC test result is not indicative of an individual’s intent to continue the use of marijuana once they are hired as an employee of the Nation and the use of drugs is prohibited. The Legislative Operating Committee understands that external applicants may come from, or may have visited, states where the use of marijuana has been legalized. As of April 24, 2023, thirtyeight (38) states, three (3) territories and the District of Columbia allow the medical use of cannabis products; while as of November 8, 2023, twenty-four (24) states, two (2) territories and the District of Columbia have enacted measures to regulate cannabis for non-medical adult recreational use.1 Allowing an exemption for the pre-employment drug testing of external applicants is a policy decision for the Legislative Operating Committee to make. There are no recommend revisions to the proposed amendments to the Drug and Alcohol Free Workplace law, but it is within the purview of the Legislative Operating Committee to reconsider this policy decision. LOC Consideration The Legislative Operating Committee had great discussion on the fact that there appears to be a great misconception on the intent of these proposed amendments to the Drug and Alcohol Free Workplace law – many people believe that the proposed amendments will allow employees of the Nation to engage in the use of drugs without consequence. The Legislative Operating Committee believes that the response provides the clarification that the exemption for positive THC test results 1 Information found on the Nation Conference of State Legislatures website at https://www.ncsl.org/health/statemedical-cannabis-laws#:~:text=Non%2DMedical%2FAdult%2DUse,medical%20adult%20(recreational)%20use. A good mind. A good heart. A strong fire. Page 7 of 19 ~ ONEIDA 14 of 94 applies only to external applicants during pre-employment drug testing. Once an individual is hired by the Nation, the Nation’s policy on drug use for employees remains exactly the same as it is now, and the 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. [2 O.C. 202.4-2]. All employees of the Nation are required to participate in reasonable suspicion and follow-up testing upon the request of an appropriate authority, and a negative test result is required to unimpeded employment eligibility. [2 O.C. 202.8-5]. The proposed amendments to the Drug and Alcohol Free Workplace law were developed by the Legislative Operating Committee elected for the 2020-2023 legislative term. Now that we are in the 2023-2026 legislative term with a new Legislative Operating Committee, the Legislative Operating Committee had further discussion on exemption provided for positive THC test results. The Legislative Operating Committee discussed that allowing non-gaming positions to waive the exemption for positive THC test results for certain positions that have been provided for in a resolution adopted by the Oneida Business Committee may provide for inconsistent and subjective application across the Nation. The Legislative Operating Committee determined that a consistent application of the exemption for positive THC test results would be more beneficial for the Nation, and therefore determined the following revision should be made to the proposed amendments to the Drug and Alcohol Free Workplace law: 202.8. Drug and Alcohol Testing 202.8-4. All external and internal applicants shall participate in pre-employment drug testing. 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 unless prohibited by an external licensing or grant requirement. Comments 14 through 15 – Application to Elected Officials: 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. (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. 202.4. Application 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. A good mind. A good heart. A strong fire. Page 8 of 19 ~ ONEIDA 15 of 94 Nancy Barton (oral): I also have with me a application for elected positions and one of the questions on Page 3 at the bottom #7 is they ask you specifically. If within the last five years you've used illegal drugs and THC is included in that in the state of Wisconsin marijuana, anything that taste test positive for THC is still illegal. So for the business committee to allow this to come forward was very concerning to me that the business committee or the LOC would allow something that's illegal. And I don't know if you're endorsing it or how this got here. My understanding was that it was a negotiation for a petition that was submitted to go to GTC. But going back to the application for elected boards and ask you specifically if you've used controlled substances and it says, for example, marijuana, cocaine, crack cocaine, hash, narcotics and it asks you to answer yes or no to that question. So I I was very concerned about when. I saw this law coming forward, I. Cathy Metoxen (oral): Cathy Metoxen: Cathy L. Metoxen. I remember being here years ago and I'm going to raise the same questions I raised back then again and one of the things that I look at is, is it gonna be across the board? Is it gonna be fair and equal? I'd like to know is there something specific in here about government officials and administration? You know, the administration, you know, top management, you know, because I've been in situations in this room where I've observed, you know, BC members staggering. And I hear, you know, the, the, the word is out there rumors and when people smell of alcohol the day after partying or something. I mean that all coincides together. And it's the same for. Marijuana, or THC or whatever it is you're looking at. And then I got a question too, is that? It's OK to use it if if that's my understanding of what you're. Creating this new amendment for is, does that include the doctors and the specialists and the nurses and everybody? It's gonna be OK for everybody across the board. And if I have a suspicion in this room in the middle of a meeting, can I stop the meeting and request that an individual sitting here at these tables here go to Saint Mary's and get tested just like an employees treated? How do we go about acting in a situation such as that? And is that being looked at and included? Because there is a lot. Lot of things I I've. Oh, it doesn't sound like it. Umm, I've had a situations where I was with somebody and we dropped somebody off at a place where they go get tested and there was a guy walking funny. And I go what's wrong with him? And they said Ohh, he's probably got fake, you know, something on him for his test, you know, so there's all kinds of ways that people look to beat the system, so to speak. So I'm wondering how is that going to be looked at and included in this document for all of the above, including each and every business committee member and their assistance. Because people laugh about it. Of course it's funny, you know. But but people are more willing to sit behind closed doors and gossip and laugh about it than to actually deal with it because nobody wants to deal with family and friends. So that's a situation that I think needs to be included in here and I wanna be able to next time I see somebody who's acting suspicious. And according to this document, it says maybe under the influence of drugs and or alcohol. So specific observations concerning appearance, behavior, speech, or body orders well. If you can't even create a law for to protect our elderly cause, my understanding is there is no law specific to elder abuse right now, and I was helping people for 20 years. How are you gonna do a lot like this? That's gonna be fair and easy and simple to do because it's not a simple thing. And I don't, I don't agree with it either. There's not enough conversation about the situation and I'd like to be able to say I remember when so and so staggered down those steps. In the middle of a meeting, what's gonna happen in that situation? It should have been the people sitting next to him that could smell the Reek Ness. Because I heard it reeks up here, sometimes on individuals. And who's gonna actually A good mind. A good heart. A strong fire. Page 9 of 19 ~ ONEIDA 16 of 94 do it and take care of it? Are you just using it to set up certain individuals? That's my question in my mind, through this whole thing, this needs to be more clearly looked at and taken apart, I would say. I guess that's all I have to say for now. Response The commenters question the proposed amendments to the Drug and Alcohol Free Workplace law application to members of the Oneida Business Committee or other elected entities. The Drug and Alcohol Free Workplace law prohibits an employee of the Nation 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. [2 O.C. 202.4-2]. An employee of the Nation is defined as 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. [2 O.C. 202.3-1(e)]. The Drug and Alcohol Free Workplace law further clarifies that an employee does not include elected or appointed officials, or individuals employed by a Tribally Chartered Corporation. Id. Therefore, the Drug and Alcohol Free Workplace law does not apply to elected officials, including members of the Oneida Business Committee. There are no recommended revisions to the proposed amendments to the Drug and Alcohol Free Workplace law based on these comments. LOC Consideration The Legislative Operating Committee agreed that there is no revision to the proposed amendments to the Drug and Alcohol Free Workplace law based on these comments since the Drug and Alcohol Free Workplace law does not apply to elected officials, including members of the Oneida Business Committee. Comments 16 through 19 – Petition S. Benton – Pre-Employment Drug Testing: Mike Debraska (oral): I had a list of questions like 9 or 10 different questions, but I'm just. I'm gonna submit those via e-mail, but there are some things that I I took a look at within the drafts and within this law itself and I noticed one thing in Section 3 under the analysis, to draft one on page 2 at the top from line 16 through 25, it says representatives from the following departments or entities participated in the development of the amendments to the law. And this legislative analysis, including the Oneida Law Office, Human Resources Department, gaming and employee health nursing. So, I mean, they went through a pretty extensive list with within within the tribal structure itself. But the one thing that wasn't included on here was GTC. And again, I know this was done by way a petition, but I haven't seen a copy of the petition that was submitted. I don't know if a petition ever was submitted. It could be something that's just told to us and there's no justification for it. So I I and within my comments, I also state that that I would like to see a copy of that. Umm, particular petition that was turned in for this? A good mind. A good heart. A strong fire. Page 10 of 19 ~ ONEIDA 17 of 94 Sherrole Benton (oral): So in that particular meeting where my where my petition was presented the, the, the, the room was pretty full. There were a lot of people there who were waiting to hear my petition and who I believe would have supported it and passed it. So This is why there was some kind of technicality that the some of the BC members at the time wanted to try out with some new GTC rules. And I agreed to that. So it ended up that my my petition wasn't heard in that particular GTC meeting, you know, like about five or six years ago. So This is why it's now been being developed this way. So I think that even if it, even if my petition were to go to the GTC meeting, I believe it would pass and then the BC and the organization would be doing this work anyways to amend the the the drug law policy. So I'm in support of it and I believe that many, many people are as well because we all know that. Mike Debraska (written): 2. Who authorized the current Oneida Business Committee to negotiate with a petitioner and under what policy, procedure, SOP, by-law or law? I would also like a copy of the petition that was submitted to the BC for proof that a community member submitted one; and Mike Debraska (written): 7. Why is the tribe even considering doing this for one individual brining forward what should have been deemed an illegal petition and denied immediately due to recreational use being illegal in the State of Wisconsin? Response The commenters discuss and/or question the 2016 Petition: Benton - Pre-Employment Drug Testing and how it was handled or relates to the proposed amendments to the Drug and Alcohol Free Workplace law. On November 21, 2016, the Petition: Benton – Pre-Employment Drug Testing was submitted to the Tribal Secretary’s Office and has since been verified by the Trust Enrollments Department. On January 13, 2017, the OBC accepted receipt of the petition and forwarded it for the appropriate analyses, including this legislative analysis. The purpose of the petition is, “to change preemployment drug testing orders and reduce sensitivity to marijuana because tests for THC aren’t effective measurements for potential employee performance, nor habitual drug use; and THC stays in the body longer than opiates, alcohol, and other drugs.” 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, they were directed by the Oneida Business Committee to work with the Oneida Law Office on potential proposed language to address the concerns brought forth through this petition. The Legislative Operating Committee added this item to its Active Files List on September 7, 2022. Although the request from the Human Resources Department mentions the relation between the request for amendments to the Drug and Alcohol Free Workplace law and the Petition: Benton – Pre-Employment Drug Testing, it is important to note that ultimately the development of amendments to the Drug and Alcohol Free Workplace law is a separate legislative effort. A good mind. A good heart. A strong fire. Page 11 of 19 ~ ONEIDA 18 of 94 If the commenters have questions regarding how the Oneida Business Committee Secretary handled the Petition: Benton – Pre-Employment Drug Testing, it is recommended that the commenters reach out directly to the Nation’s Secretary for more information regarding this issue, as this is not information that the Legislative Operating Committee holds. LOC Consideration The Legislative Operating Committee reaffirms that ultimately the development of amendments to the Drug and Alcohol Free Workplace law is a separate legislative effort than the Petition: Benton – Pre-Employment Drug Testing, and the Legislative Operating Committee would be pursuing this issue even without the petition. Comments 20 through 22 – Expression of Support for Amendments: Sherrole Benton (oral): Sherrole Benton: Sherrole Benton. I'm the author of this petition, and when I wrote it. Uh, we. We were looking at the states around us, Umm, legalizing marijuana. And so eventually, the legalization of marijuana will will be well will happen in our state as well. So the reason why I wrote the petition for pre employment testing and and not looking for THC during pre employment. It's so that more, you know, more qualified people could be interviewed and hired for a positions. THC stays in the body in the body, it's stored in the fat cells of the body for up to seven years. So like you know, if a person had had been using, you know, a month ago or a year ago or several years ago, that's possibly gonna show up in a THC test, whereas other drugs and alcohol that are water soluble, those are washed out of the system within 24 to 72 hours. So people who are using harder drugs, like meth and heroin and other narcotics, they're they're they're passing those pre screening during pre employment testing. And they're the ones who are getting. That jobs, and then once they are in a job, you know, they become unreliable employees and you know a lot of supervisors that I talked with when I wrote this petition were really frustrated about that. And they said. They really wouldn't mind if someone who had tested positive for THC got through the screening process and they could interview them, you know, and then have them on the probationary period for employment. So and and as you can see in in in the in the law, once a person is employed, they would still be subject to in drug testing. You know, if there behavior and performance level are are not up to par. … So I'm in support of it and I believe that many, many people are as well because we all know that. You know a person who is who is using meth or heroin or other narcotics. You know, once they are on the job, they become unreliable. And this is this is affecting our revenue, it's affecting the quality and leadership and development of our employees. And so I think it's important to pass it, you know to to continue working on this and amend the law. Thank you. Lisa Liggins (written): I’d like to share my general support for the proposed amendments to the law. I appreciate the work done by the Oneida Law Office, the Human Resources Department, Gaming, and Employee Health Nursing; I’m confident these proposed amendments will address the concerns raised by Sherrole Benton from her 2016 petition as well as the concerns raised by A good mind. A good heart. A strong fire. Page 12 of 19 ~ ONEIDA 19 of 94 Gaming Management surrounding pre-employment drug screening. Sidney White (written): Greetings, I would like to submit my comments for the DRUG AND ALCOHOL-FREE WORKPLACE LAW AMENDMENTS. I support the ‘exemption for positive THC Test’ in 202.8-4. In my professional role, community members share that THC is an effective alternative to prescription opioids in managing chronic pain. I personally observed the onset of the Opioid Crisis directly affecting our Oneida Nation, and greater northeastern Wisconsin Native, community in the past 15+ years of practice. The proliferation of providers freely providing prescription opioids was a direct contributing factor to the epidemic in our community. There are reasons bills were introduced such as H.R. 2917 (IH) - Opioid Crisis Accountability Act of 2019, S.2680 - Opioid Crisis Response Act of 2018, and the Support for Patients and Communities Act. The onset and cessation of prescription opioid abuse directly correlated with increased methamphetamine and heroin use within the area. This created a subset of people that have effectively recovered from opioid use and methamphetamine/heroin use. In my clinical practice there is a significant amount of community members that suffer from chronic pain syndromes. Many community members have been through the system regarding pain management. Due to their recovery from opioid abuse, they have extreme trepidation and reluctance with prescription narcotics in management of their chronic pain conditions. THC provides these patients the opportunity to effectively manage their chronic pain conditions with avoidance of traditional medicine and low-grade long-term narcotic use. It allows our community members to become more physically active within the community as their pain is self-reported as managed better. The fear of relapse is a very real threat for this population with traditional medicine. The alternative for this subset is THC and managed chronic pain conditions or non-THC and increased pain and dysfunction. Studies have consistently shown that with managing chronic pain, graded activity, and integration back into the work force consistently generates improved patient outcomes and wellbeing. It is my hope that an ‘exemption for positive THC test’ would allow the recovering opioid addict that successfully manages chronic pain with THC use the opportunity to return to the Oneida Nation workforce. Thank you for your time and consideration of my public comments regarding the proposed amendments. Sincerely, Sidney J. White Response The commenters express general support for the proposed amendments to the Drug and Alcohol Free Workplace law. There are no revisions recommended based on these comments. LOC Consideration A good mind. A good heart. A strong fire. Page 13 of 19 ~ ONEIDA 20 of 94 The Legislative Operating Committee appreciates the expression of support for the proposed amendments to the Drug and Alcohol Free Workplace law. Comment 23 – Clarification of Internal Applicant: 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. (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. 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. Lisa Liggins (written): Clarification of the “Internal Applicant” is needed.  The proposed changes to section 202.8-4. would require external applicants comply with pre-employment drug screening,  If the intent of the amendments to 202.8-4. is that pre-employment drug screening is only for external applicants, the term, “internal applicant” could be deleted from the law entirely.  “Internal applicant” is defined in the law, then referenced in the sections regarding the application of the law and the regarding consequences for prohibited behavior.  Line 51 – definition of “internal applicant”  Line 287 – Section 202.11-1. references “internal applicant” declining a position before being directed to a testing site.  However if an “internal applicant” is no longer required to comply with preemployment testing, this language should be revised and/or reference to “internal applicant” should be deleted.  Line 295 – Section 202.11-3. references consequences and “internal applicant” would face if they fail to show at the testing site as provided in the law. A good mind. A good heart. A strong fire. Page 14 of 19 ~ ONEIDA 21 of 94 However if an “internal applicant” is no longer required to comply with preemployment testing, this language should be revised and/or reference to “internal applicant” should be deleted. If the intent of the amendments to 202.8-4. is that pre-employment drug screening is only for external applicants and internal applicants, then language in 202.8-4. should be revised.   Response The commenter asks that the application of the proposed amendments to section 202.8-4 of the Drug and Alcohol Free Workplace law be clarified on regard to pre-employment drug testing of internal applicants. An internal applicant is a person who is applying for a position who is currently employed by the Nation, this includes those employed under a temporary status. [2 O.C. 202.3-1(h)]. The intent of the proposed amendments to section 202.8-4 of the Drug and Alcohol Free Workplace law was not to remove the requirement for internal applicants to participate in pre-employment drug testing when applying for a new position within the organization. It is intended though, that the exemption for positive THC test results for pre-employment drug testing apply only to external applicants. In an effort to clarify this issue the following revision is recommended: 202.8-4. All external and internal applicants shall participate in pre-employment drug testing. 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 (C) the position does not require a commercial driver’s license or jobrelated 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. LOC Consideration The Legislative Operating Committee supports the following recommended revision to section 202.8-4 of the proposed amendments to the Drug and Alcohol Free Workplace law: A good mind. A good heart. A strong fire. Page 15 of 19 ~ ONEIDA 22 of 94 202.8-4. All external and internal applicants shall participate in pre-employment drug testing. A negative drug test result shall be required for employment eligibility. Comment 24 – General Tribal Council Involvement in Legislative Process: Mike Debraska (written): 8. When will the requested changes be brought forward to General Tribal Council for their input and consideration, if at all, since many other departments and members of management were consulted? and; Response The commenter questions if the proposed amendments to the Drug and Alcohol Free Workplace law will be brought before the General Tribal Council for consideration. No, the proposed amendments to the Drug and Alcohol Free Workplace law will not be brought forward to the General Tribal Council for consideration. The Legislative Operating Committee follows the process and procedures set forth by the Legislative Procedures Act, in which the proper time for an individual to provide input is during the public meeting and public comment period. [1 O.C. 109]. The General Tribal Council adopted the Legislative Procedures Act in 2013 to set forth the process for the development and adoption of laws of the Nation by the Oneida Business Committee and General Tribal Council. [1 O.C. 109.1-1]. The Legislative Procedures Act intends to ensure that there is a standard process for developing legislation for the Nation. [1 O.C. 109.1-2]. Although the Legislative Procedures Act is not construed to impede the constitutional right of a member of the Nation under Article III, Section 4 of the Oneida Nation Constitution and Bylaws to petition for a special meeting of the General Tribal Council, the lawmaking requirements provided by the Legislative Procedures Act do apply to all legislation considered by the Oneida Business Committee or the General Tribal Council. [1 O.C. 109.1-3, 109.1-1]. The legislative process begins when any person who is interested in pursuing the development of or amendment to a law of the Nation submits a written request for legislation to the Legislative Reference Office, who then is responsible for placing the request for legislation on the agenda of the next duly called Legislative Operating Committee meeting. [1 O.C. 109.5-1, 109.5-2]. General Tribal Council delegated the Legislative Operating Committee the responsibility for the development of legislation of the Nation. [1 O.C. 109.4-2]. The Legislative Operating Committee is comprised of the five (5) Oneida Business Committee members who do not hold officer positions. [1 O.C. 110.4-1(b)]. Once the Legislative Operating Committee receives a request for legislation, the Legislative Operating Committee then either accepts or denies the request, except that the Legislative Operating Committee is not allowed to deny a request for legislation directed by a General Tribal Council law, resolution, or motion. [1 O.C. 109.5-2(a)-(b)]. Once the Legislative Operating Committee accepts a request for legislation and directs that legislation be developed in accordance with the Legislative Procedures Act, a draft of the legislation is created through research, review of other similar laws, collaboration with affected A good mind. A good heart. A strong fire. Page 16 of 19 ~ ONEIDA 23 of 94 entities, and community engagement efforts. The Legislative Procedures Act provides guidance on how a law should be organized, such as different sections that need to be included in a law and what information needs to be addressed in each section, to ensure there is a consistent format amongst all laws of the Nation. [1 O.C. 109.11]. Once a draft of the proposed legislation is approved by the Legislative Operating Committee, a legislative analysis of the draft legislation is completed. [1 O.C. 109.7-1]. The purpose of the legislative analysis is to describe the important features of the legislation being considered and factual information to enable the Legislative Operating Committee to make informed decisions regarding legislation. [1 O.C. 109.3-1(g)]. A legislative analysis includes a statement of the legislation’s terms and substance; intent of the legislation; a description of the subject(s) involved, including any conflicts with Oneida or other law, key issues, potential impacts of the legislation and policy considerations. Id. Once a draft and legislative analysis are completed for proposed legislation, the Legislative Operating Committee moves forward with obtaining public review of the proposed legislation. The Legislative Operating Committee determines a public meeting date and then a public meeting notice is created that contains the date, time and place of the public meeting, the time period for the public comment period, and the name, address, phone number, and other appropriate information on where to submit comments on the proposed legislation. [1 O.C. 109.8-2]. At least ten (10) business days before the public meeting is held, the public meeting notice is published in the Kalihwisaks, while the public meeting notice, proposed draft of the legislation, legislative analysis, and fiscal impact statement if available, are published on the Oneida Register on the Nation’s webpage found at the following location: https://oneida-nsn.gov/government/register/, and electronically noticed to all managers and directors. [1 O.C. 109.8-2]. The managers and directors who receive the public meeting materials are then required by the Legislative Procedures Act to direct employees of the Nation who have special knowledge or expertise on the proposed legislation to provide public comments. [1 O.C. 109.8-4(a)]. The public meeting on the proposed legislation is required to be presided over by at least one (1) member of the Legislative Operating Committee. [1 O.C. 109.8-3(a)]. The purpose of the public meeting is to solicit oral comments from members of the community on the proposed legislation. [1 O.C. 109.8-3]. After the public meeting concludes, the Legislative Operating Committee holds open a public comment period for at least five (5) business days. [1 O.C. 109.8-1(a)]. During the public comment period individuals may submit written comments including data, views, arguments, or concerns to the Oneida Business Committee Secretary or the Legislative Reference Office in person or through United States mail, interoffice mail, e-mail, or fax. [1 O.C. 109.8-1(c), 109.4-4(b)]. Once the public comment period has concluded, the Legislative Operating Committee is required by the Legislative Procedures Act to fully consider all written comments and oral testimony received during the public comment period and any public meeting on the proposed legislation. [1 O.C. 109.8-4]. The Legislative Operating Committee accomplishes this responsibility through the development of a public comment review memorandum that provides the Legislative Operating A good mind. A good heart. A strong fire. Page 17 of 19 ~ ONEIDA 24 of 94 Committee’s consideration of every comment received, and demonstrates any changes made to the proposed legislation based on the public comments. A fiscal impact statement is also required for all proposed legislation. [1 O.C. 109.6-1]. A fiscal impact statement provides an estimate of the total fiscal year financial effects associated with legislation and includes startup costs, personnel, office, documentation costs, as well as an estimate of the amount of time necessary for an individual or agency to comply with the law after implementation. [1 O.C. 109.3-1(c)]. The Legislative Operating Committee may direct that a fiscal impact statement be submitted by any agency who may receive funding if the legislation is enacted, may administer a program if the legislation is enacted, may have financial information concerning the subject matter of the legislation, or the Finance Department. [1 O.C. 109.6-1]. Oneida Business Committee resolution BC-10-28-20-A, Further Interpretation of ‘Fiscal Impact Statement’ in the Legislative Procedures Act, provides further clarification on the process for directing a fiscal impact statement be completed. This resolution provides that upon final approval of draft legislation by the Legislative Operating Committee, the Legislative Operating Committee may direct the Finance Department or any agency who may receive funding if the legislation is enacted, may administer a program if the legislation is enacted, may have financial information concerning the subject matter of the legislation to provide a neutral and unbiased fiscal impact statement to the LOC within ten (10) business days for inclusion in adoption materials. After all the requirements of the Legislative Procedures Act are met and the Legislative Operating Committee is satisfied with proposed legislation, the Legislative Operating Committee then forwards an adoption packet comprised of the proposed legislation, legislative analysis, fiscal impact statement, resolution, statement of effect, and an adoption memorandum to the Oneida Business Committee for consideration. [1 O.C. 109.9-1. The Oneida Business Committee then either considers whether to approve or deny the adoption of the legislation or forwards the legislation to the General Tribal Council for consideration of adoption. [1 O.C. 109.9-1(a)-(b)]. A law is adopted, amended, or repealed upon the adoption of a resolution. [1 O.C. 109.9-2]. For those laws considered by the Oneida Business Committee a majority vote is required for the adoption of the law, while amendments and repeals of a law are handled in accordance with the laws governing Oneida Business Committee action. [1 O.C. 109.9-2(a)]. The Oneida Business Committee utilizes Robert’s Rules of Order, current edition, for the procedural rules of its meetings except as specifically modified by the Constitution and Bylaws of the Oneida Nation. [1 O.C. 117.4-1]. For those laws considered by the General Tribal Council, adoption, amendment, and repeal of laws are done in accordance with the laws governing General Tribal Council action. [1 O.C. 109.9-2(b)]. Any action by the General Tribal Council to overrule previous passed motions or resolution requires a two-thirds (2/3) vote. [1 O.C. 113.3-1(a)(3)]. Once legislation is adopted through resolution by either the Oneida Business Committee or the General Tribal Council the law shall become effective ten (10) business days after the date of adoption unless a different effective date is specified. [1 O.C. 109.9-3]. The Legislative Operating Committee is then responsible for publishing the law in the Oneida Code of laws by the effective A good mind. A good heart. A strong fire. Page 18 of 19 ~ ONEIDA 25 of 94 date. [1 O.C. 109.9-4]. The Oneida Code of Laws can be found on the Oneida Register on the Nation’s website at the following location: https://oneida-nsn.gov/government/register/laws/. Any law adopted in substantial compliance with the Legislative Procedures Act is considered valid. [1 O.C. 109.10-1]. No law can be contested based on non-compliance with the procedural requirements of the Legislative Procedures Act after one (1) year from the effective date of the law. [1 O.C. 109.10-2]. LOC Consideration The Legislative Operating reaffirms that the proposed amendments to the Drug and Alcohol Free Workplace law will not be brought forward to the General Tribal Council for consideration, and that the processes and procedures set forth by the Legislative Procedures Act have been followed for the development of these proposed amendments. A good mind. A good heart. A strong fire. Page 19 of 19 ~ ONEIDA 26 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 202.9. 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, BC-04-12-17-C, 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. (c) “Confirmed positive test result” means a lab-confirmed drug test that is verified by the 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 27 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 (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 28 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 202.4. 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. (c) Comply with drug and alcohol testing if directed to do so upon the request of an 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. (c) Promptly intervene with an employee who is believed to be under the influence of 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 29 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 (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. (c) An employee shall not sell or share his or her prescribed medications with any other 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. 2 O.C. 202 – Page 4 30 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 (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. (c) Uses unauthorized prescription drugs or intentionally misuses and/or abuses prescription 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. 2 O.C. 202 – Page 5 31 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 (c) Confirmation drug testing done by saliva testing shall be performed using an NHTSA 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. All external and internal applicants shall participate in pre-employment drug testing. 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:unless prohibited by an external licensing or grant requirement. (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 (C) the position does not require a commercial driver’s license or job-related 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. (c) Refusal to cooperate in the testing process in such a way that prevents completion of accurate testing and as directed by the collector. (d) Failing to remain at the testing site until the testing process is complete. 2 O.C. 202 – Page 6 32 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 (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. 2 O.C. 202 – Page 7 33 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 (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; (C) The ONEAP notifies the supervisor of the employee’s eligibility to return 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. (c) Third Violation. (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. 2 O.C. 202 – Page 8 34 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 202.12. 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. (c) Criminal Penalties. An employee whose conduct violates state or federal criminal laws 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. (c) All employees shall sign an acknowledgment form stating they have received a copy of 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 2 O.C. 202 – Page 9 35 of 94 Draft 2 (Redline to PM Draft) 2024 01 03 398 399 400 401 402 403 404 405 406 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-__-__-__-__ 2 O.C. 202 – Page 10 36 of 94 Draft 2 (Redline to Current) 2024 01 03 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 202.9. 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. (c) “Confirmed positive test result” means a lab-confirmed drug test that is verified by the 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 37 of 94 Draft 2 (Redline to Current) 2024 01 03 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 (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 38 of 94 Draft 2 (Redline to Current) 2024 01 03 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 202.4. 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. (c) Comply with drug and alcohol testing if directed to do so upon the request of an 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. (c) Promptly intervene with an employee who is believed to be under the influence of 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 39 of 94 Draft 2 (Redline to Current) 2024 01 03 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 (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. (c) An employee shall not sell or share his or her prescribed medications with any other 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. 2 O.C. 202 – Page 4 40 of 94 Draft 2 (Redline to Current) 2024 01 03 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 (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. (c) Uses unauthorized prescription drugs or intentionally misuses and/or abuses prescription 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. 2 O.C. 202 – Page 5 41 of 94 Draft 2 (Redline to Current) 2024 01 03 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 (c) Confirmation drug testing done by saliva testing shall be performed using an NHTSA 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 and internal 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 unless prohibited by an external licensing or grant requirement. 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. (c) Refusal to cooperate in the testing process in such a way that prevents completi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A5b07483fcb33a895. Public record. Not legal advice.