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Thursday, October 12, 2017

New Officer-Involved Shooting Drug/Alcohol Testing Law

A recent amendment to the Illinois Police and Community Relations Act is drawing attention from municipalities and police unions alike.  Effective August 25, 2017, the new law provides that every law enforcement agency must adopt and follow a written policy regarding drug and alcohol testing for police officers involved in officer-involved shootings.  As defined by the statute, an “officer-involved shooting” encompasses any case in which “a law enforcement officer discharges his or her firearm, causing injury or death to a person or persons, during the performance of his or her official duties or in the line of duty.”  The amended legislation requires every police department to prepare and enforce a written drug testing policy for instances of officer-involved shootings. Additionally, the amended statute provides that “drug and alcohol testing must be completed as soon as practicable after the officer-involved shooting but no later than the end of the involved officer’s shift or tour of duty.”

The good news is that, other than adopting a policy that states that every officer involved in an officer-involved shooting is to be tested for drugs and alcohol and that such testing must be completed no later than the end of the officer’s shift, there are no other requirements for the policy. Police departments with current drug and alcohol testing policies should add post-shooting situations to the list of events that trigger additional testing. 

Municipalities without police unions can adopt these policies unilaterally.  However, if your municipality has a union, the union may be sending you a request to bargain over the new policy language.  The Illinois Public Labor Relations Act requires employers to bargain with respect to “wages, hours, and other conditions of employment.”  This duty would usually preclude unilateral action by an employer with respect to mandatory subjects of bargaining, including drug and alcohol testing.  Since the new law requires the adoption of a drug and alcohol testing policy to apply to cases of officer-involved shootings, no police union can prevent an employer from adopting an officer-involved shooting policy, or incorporating that component into an existing policy. However, it may be beneficial to have a meeting with the police union to discuss this even though union demands cannot interfere with compliance of the law.

On the other hand, municipalities have the obligation to bargain over the effects or impact of this legislation. As our clients may know, this limits their bargaining obligation to simply the effects of the requirement to create the policy. Some effects or impact issues that police unions will likely raise are the categories and level of drug presence in a sample that is considered to be a positive result (the legislation is silent as to these issues); what kind of test is performed; what to do if the officer is unable due to injury of his own medical condition to report for testing before the end of his or her shift; disciplinary action resulting from positive results; and release of those test results to a defendant, the state, an investigatory agency or board, or the press.  

If you already have a drug and alcohol testing policy, this new law may require you to change it.  If you are unsure whether you need additional language or whether your current language is sufficient, contact us. 

Law enforcement agencies can best minimize any possible adverse consequences of this new law by enforcing its existing general drug and alcohol testing policy strictly and vigorously.  Because an on-duty officer under the influence of illegal (or even legal) drugs or alcohol is a liability risk, lax enforcement of the policy or disciplinary rules relating to the policy cannot be tolerated.  We are able to assist in ensuring that both the general and officer-involved shooting testing policies are as thorough and sound as possible.  The new statute virtually mandates that law enforcement agencies take a new look at their policies, even policies that have created no problems in the past, to be sure that they are adequate to deal with this new challenge.

Also, check out Ancel Glink's labor & employment blog, the Workplace Report where you can read an FAQ about this new law.  New Officer-Involved Shooting Drug and Alcohol Testing Statute Raises More Questions Than It Answers

Post Authored by Don Anderson & Margaret Kostopulos, Ancel Glink


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