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Section Four: Standards of Conduct

4.1     Standards of Conduct

4.1.1   Policy
All persons employed by the Town hold a position of public trust and as a result, Town employees must present themselves in a professional and appropriate manner.  Employees shall avoid any action which might create the impression of using public office for private gain, giving preferential treatment to any person, or losing impartiality in conducting town business.  Employees are expected to adhere to conduct established by state law.  All employees may be subject to disciplinary action for acting in a manner that is not consistent with the standards of conduct.

4.2     Smoking Policy

No smoking is allowed in municipal buildings.

4.3     Political Activity Policy

Participation in political activities is to be carried on outside of the normal working hours.  No political activities or solicitations will be conducted on Town-owned property by an employee, during work hours or in work areas.  Use of Town-owned assets in support of political activities or solicitations is prohibited.

4.4     Conflict of Interest

4.4.1   Outside Business and Financial Interests  
In so far as this section is consistent with provisions of General Law, chapter 268A, no employee shall maintain an outside business or financial interest, or engage in any outside business or financial activity which interferes with their ability to fully perform job responsibilities.  Conduct of an employee shall be in accordance with the laws of the Commonwealth.

4.4.2   Concurrent Service  
No person employed by a department/office of the Town shall, at the same time, serve as a member, paid or unpaid, of the board governing said department/office.

4.5     Gratuities
In so far as this section is consistent with the provisions of General Law, chapter 268A, no individual employee of the Town may accept any form of gifts, gratuities, special favors or preferential treatment.

4.6     Telephone Policy
Personal out-going or in-coming personal telephone calls shall be limited to an absolute minimum.

4.7     Attendance/Office Closure
Any employee whose illness or disability would result in the temporary closure of a Town office shall immediately report such illness or disability to the Office of the Board of Selectmen.

4.8     Safety Policy
Employees shall be required to wear and use safety equipment at all times while undertaking the work for which the equipment is furnished.  In the case of Town-owned motor vehicle operation or employee motor vehicle operation for work purposes, seat belts shall be worn by all vehicle occupants at all times.  There shall be no exceptions.  

Department heads and supervisors shall:  assume full responsibility for the safety of working areas; recommend correction of deficiencies noted in work procedures, facilities, safety clothing or equipment or attitudes of employees; insure the availability and utilization of appropriate protective clothing and equipment; observe working conditions and field procedures to prevent possible safety hazards; and investigate and report all accidents promptly.

Each employee shall:  observe all safety rules, operating procedures and safety practices; use personal protective equipment; report unsafe areas, conditions, or other safety problems; and report all accidents promptly to the appropriate supervisor.

Employees, including supervisors, violating safety rules, practices and policies may be subject to disciplinary action.

4.9     Examples of Prohibited Activities
Disciplinary action may be initiated for failure of an employee to fulfill responsibilities as an employee including the standards set forth above and outlined below.  The protocol for handling disciplinary action may be prescribed in existing or future collective bargaining agreements but circumstances warranting disciplinary action are not protected by such agreements.

Some examples of circumstances which are to be considered sufficient cause for disciplinary action shall include, but are not limited to the following:
a.      Incompetence or inefficiency in performing assigned duties;
b.      Refusal to perform a reasonable amount of work, violation of any reasonable official order, or failure to carry out any lawful and reasonable directions made by a proper supervisor;
c.      Habitual tardiness or absence from duty;
d.      Falsification of time sheets;
e.      Use or possession of illegal substances or alcohol while on duty;
f.      Misuse or unauthorized use of town property;
g.      Fraud in securing appointment;
h.      Disclosure of confidential information;
i.      Abuse of sick leave or absence without leave as specified by these Rules & Regulations;
j.      Violation of safety rules, practices and policies;
k.      Engaging in sexual or other harassment;
l.      Violation of these personnel rules and regulations;
m.      Any situation or instance of such seriousness that disciplinary action is warranted;
n.      Carrying an unauthorized weapon;
o.      Fighting or other physical abuse;
p.      Flagrantly discourteous service;
q.      Stealing and other criminal and civil violations of the law.

4.10    Americans with Disabilities Act
It is the policy of the Town to comply with requirements of the regulations contained in the U.S. Americans with Disabilities Act of 1990. This policy applies to all employees of the Town.

The Town will not discriminate against people with disabilities in any employment practices or in terms, conditions or privileges of employment, including, but not limited to: application, testing, hiring, assignment, evaluation, disciplinary action, training, promotion, medical examination, layoff/recall, termination, compensation, leaves or benefits.

The Town has and will continue to establish occupational qualifications for each position, including the education, skills, and work experience required, and the physical, mental and environmental standards necessary for job performance, health, and safety. Such standards are job-related and consistent with business necessity.

The Town will provide reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee unless such accommodation will impose undue hardship on the Town. The Town will provide reasonable accommodation:

·       To ensure equal employment opportunity in the application process
·       To enable a qualified individual with a disability to perform the essential functions of the job
·       To enable an employee with a disability to enjoy equal benefits and privileges of employment.
·       The Town need not provide reasonable accommodation for an individual who is otherwise not qualified for a position.
·       The duty to provide reasonable accommodation is on-going, and may arise any time an employee’s job changes.
·       It is the obligation of the individual with the disability to request the accommodation.
·       If the cost of providing the accommodation is determined to meet the criteria of undue hardship on the Town, the affected individual will be offered the opportunity to provide the accommodation or partial accommodation him or herself.

Some examples of reasonable accommodation include, but are not limited to, the following:

·       Making facilities readily accessible and usable;
·       Restructuring a job by reallocating or distributing marginal job functions;
·       Altering when or how an essential job function is performed;
·       Creating part-time or flexible schedules;
·       Obtaining or modifying equipment or devices;
·       Providing qualified readers or interpreters;
·       Permitting the use of accrued or unpaid leave for treatment; and,
·       Providing reserved parking.

When attempting to identify what is a reasonable accommodation, appointing authorities and department managers should do the following:

a.      Examine the particular job involved, determining its purpose and its essential functions.
b.      Consult with the individual with the disability to find out is or her specific physical or mental abilities and limitations.
c.      In consultation with the individual, identify potential accommodations and assess how effective each would be.
d.      If an individual requests an accommodation which the appointing authority or department head considers to be unnecessary, the department head may ask for written documentation from a physician or other professional with knowledge of the individual’s functional limitations.
e.      The determination that any reasonable accommodation represents an undue hardship will be made by the Personnel Board or its designee.

No pre-employment inquiries may be made about an applicant’s disability. This prohibition does not prevent an employer from obtaining necessary information regarding an applicant’s qualifications, including medical information necessary to assess such qualifications and to ensure health and safety on the job. Before making a job offer, the Town may ask questions about an applicant’s ability to perform specific job functions and may make a job offer that is conditioned on satisfactory results of a post-offer medical examination or inquiry. The Town may not make inquiries about specific disabilities. Questions which may not be asked during a pre-employment interview include (but are not limited to):

·       Have you ever had, or been treated for any of the following conditions?
·       Please list any conditions or diseases for which you have been treated in the past three years.
·       Have you ever been hospitalized? If so, for what conditions?
·       Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
·       Have you ever been treated for any mental condition?
·       How many days were you absent from work because of illness last year?
·       Do you have any disabilities or impairments which may affect your performance in the position?
·       Are you taking any prescription drugs?
·       Have you ever been treated for drug addiction or alcoholism?
·       Have you ever filed a workers’ compensation claim?

In addition, these questions may not be asked of a previous employer or other reference provider for an applicant during reference checks. In addition, the hiring manager may not ask the reference provider about the applicant’s:

·       Disability;
·       Illness; or,
·       Workers’ compensation history.

Even if the applicant is qualified to perform the job, the Town may deny employment if such employment would pose a direct threat to the health and safety of the individual or others, if such threat cannot be eliminated through reasonable accommodation. Such determination must be made by the Personnel Board or its designee after careful review of the circumstances.

An employee who is an alcoholic is considered to be a person with a disability under the terms of the ADA. However, the Town may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that he or she is “not qualified” for the position.

Persons addicted to drugs, but who are no longer using drugs illegally and who are receiving treatment for drug addiction, or who have been rehabilitated successfully, are protected from discrimination by the ADA. However, the Town will discharge or deny employment to current illegal users of drugs, in accordance with policies established herein. The Town may ask questions regarding the use of alcohol or illegal use of drugs. However, the employer may not ask whether the applicant is a drug addict or alcoholic, or whether he/she has ever been in a drug or alcohol rehabilitation program.

Violation of this policy will  lead to appropriate disciplinary action up to and including termination from Town Service.

4.11    Commercial Driver’s License (CDL) Alcohol and Drug Testing Policy
The following is the policy of the Town regarding testing associated with alcohol misuse and drug use by those employees operating motor vehicles which require a Commercial Drivers’ License. The terms alcohol misuse, drug use, and substance abuse are used interchangeably herein. Definitions for specific terms used within this policy can be found in the definitions section under General Provisions.

This policy applies to all employees subject to the regulations of the Federal Highway Administration, Department of Transportation Alcohol and Drug ruling that includes every person who operates a commercial motor vehicle in interstate or intrastate commerce, and is subject to the commercial driver’s license requirements of Part 383.

        4.11.1  Safety-Sensitive Functions
Regulations are based on the delineation of safety-sensitive functions that are defined as including any of the following circumstances and or activities:

a.      At a carrier or shipper plant, terminal or facility, or other property, or on any public property, waiting to be dispatched, unless the driver is relieved from duty by the employer;
b.      Inspecting service brakes, including trailer brake connections, parking (hand) brakes, steering mechanism, lighting devices and reflectors, tires, horn, windshield wipers, rear vision mirrors, coupling devices, fire extinguishers, spare fuses, or warning devices for stooped vehicles;
c.      Inspecting, servicing, or conditioning any CMV in operation;
d.      At the driving controls of a CMV in operation;
e.      While in or upon an CMV, except when resting in a sleeper berth;
f.      Supervising or assisting in loading or unloading a vehicle;
g.      Attending a vehicle being loaded or unloaded;
h.      While in readiness to operate the vehicle;
i.      When giving or receiving receipts for shipments loaded or unloaded;
j.      Performing the driver requirements of sections 392.40 and 392.41 of Part 392, Driving Motor Vehicles, relating to accidents;
k.      Repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.

4.11.2  Alcohol Prohibitions
The following prohibitions are established by the DOT relative to alcohol use for performance of safety-sensitive functions:

1.      A driver may not report for duty or stay on duty:
a.      With a blood alcohol concentration of 0.02 or greater
b.      If in possession of alcohol, unless it is being transported as cargo (this includes any product, medication, or food containing alcohol regardless of the alcohol content)
c.      If using alcohol
d.      Within four hours of using alcohol
2.      A driver who has an accident may not use alcohol until post-accident testing is done or for a period of eight hours, whichever comes first
3.      Drivers cannot refuse to submit to alcohol testing
4.      Employers who know about any of the above acts cannot permit the driver to perform a safety-sensitive function.

4.11.3  Drug Prohibitions
The following prohibitions are established by the DOT relative to drug use for performance of safety-sensitive functions:

1.      The Federal Highway Administration bans the use of controlled substances by drivers.
2.      Drivers may not report for duty or stay on safety-sensitive duty while using any controlled substance. There may be an exception to this ruling if a physician has prescribed a substance and has advised you that it does not interfere with your ability to operate a vehicle in a safe manner.
3.      Drivers may not report for duty or stay on duty if they have tested positive for a controlled substance.
4.      Employers who know about either of the above acts cannot permit the driver to perform a safety-sensitive function.
5.      Employers may require drivers to report the use of any therapeutic drugs.

4.11.4  Alcohol and Drug Testing
Testing to determine the presence of alcohol and/or drugs can and may be performed in any of the following situations:

1.      Pre-Employment: Before a new hire can perform any safety-sensitive duties or when a person transfers into a safety-sensitive function from elsewhere in the municipality (on a case-by-case basis, an applicant may be denied being hired for a Driver’s position who has had a positive drug and/or alcohol test within two years of his or her application).

2.      Post-Accident:  Following an accident where a life was lost or the driver was cited for a moving traffic violation. Post-accident alcohol testing shall be done within two hours of the accident, or not at all. Post-accident drug testing shall be done within 32 hours, or not at all.

3.      Random: Unannounced random testing is required on a certain percentage of drivers each year. The random selection process used shall ensure that each driver has an equal chance of being tested each time selections are made. Drivers are randomly selected from the pool. Random testing for alcohol shall be completed just before, during or immediately after performing safety-sensitive work. Random testing for drugs may be done at any time you are at work. Once notified that you have been selected for random testing, you must proceed immediately to the test site. Random testing is done as follows:
a.      25% of all drivers shall be randomly tested for alcohol during the first year of the testing program. The number to be randomly tested in following years depend on the percentage of positive tests for the entire industry.
b.      50% of drivers shall be randomly tested for controlled substances during each year of the testing program.

4.      Reasonable suspicion:  If your supervisor has reason to believe that your behavior or appearance may indicate alcohol or drug abuse, he or she may require you to be tested. Testing for reasonable suspicion is based on:
a.      The observances of a trained supervisor
b.      Specific, clearly stated observations concerning the driver’s appearance, behavior, speech or body odor.

Observations made for alcohol testing shall be made just before, during or just after the performance of safety-sensitive function. The supervisor who makes the observation and determines that reasonable suspicion testing should be done may not conduct the alcohol test on the driver. Alcohol testing for reasonable suspicion must be done within two hours of the observation. Tests that cannot be done within eight hours of the observation shall not be done. You cannot report for duty or stay on the job while under the influence of alcohol or while impaired by alcohol as shown by behavior, speech or performance that indicates alcohol misuse. You will not be allowed to continue to perform safety-sensitive duties until your alcohol concentration is less than 0.02 or 24 hours have passed from the time of initial observation. Action regarding alcohol misuse cannot be taken against a driver unless an alcohol test was administered or was refused by the driver.

5.      Return to duty and follow-up: Return to duty testing is required for drivers who violate prohibitions and are returning to work. In order to return to work, an alcohol concentration of less than 0.02 or a negative drug test is required. Follow-up testing is required when a driver returns to a safety-sensitive function. A minimum of six tests shall be performed during the first year back in a safety-sensitive position. However, follow-up testing may continue for up to five years.

As part of the alcohol and drug rule and this policy, you must submit to alcohol and drug testing as required. If you refuse to be tested, you cannot continue on the job. Refusal to be tested is considered to be any time you either fail to provide enough breath for alcohol testing or enough urine for controlled substance testing without a valid medical reason after being notified of the testing requirements, or if you clearly obstruct the testing process.

All alcohol testing is done by a certified Breath Alcohol Technician (BAT) in a private setting where no one but you and the BAT can see or hear the test results. An evidential breath testing (EBT) device approved by the NHSA must be used. The BAT will ask for identification. You may ask the BAT for identification as well.  

To complete the test you must blow forcefully into the mouthpiece of the testing device. The BAT must show you the test result on the testing device. A screening test is done first. If the reading is less than 0.02, you will sign the certificate and fill in the date on the form. The test will be reported as negative to the employer.  

If the reading is 0.02 or greater, a confirmation test must be done (after 15 minutes but within 20 minutes of the first test). You will be asked not to eat, drink, belch or put anything in your mouth. These steps prevent the buildup of mouth alcohol which could lead to an artificially high result. If the screening and confirmation test results are not the same, the confirmation test result is used.

Drug testing is done by analyzing a urine sample, which is collected in a private location. Urine specimens are divided into two containers by the collection site person in your presence. These two samples, called ‘primary’ and ‘split,’ are sent to a testing laboratory certified by the Department of Health and Human Services (DHHS).  

At the laboratory, a screening test is performed on the primary sample. If this test is positive for drugs, a confirmation test is required. The confirmation test must use a specialized procedure called gas chromatography/mass spectrometry, to ensure that over-the-counter drugs are not reported as positive. If the first test is positive, the Medical Review Officer (MRO) will notify you to find out if there is a medical reason for the drug use. If you can document why the substance is being taken and the MRO finds it is a legitimate medical use, the test may be reported as negative to the employer.

After being notified that the first test was positive, you have 72 hours to request a test of the split specimen. If you make this request, the split specimen is sent to another DHHS-certified lab for the test. If you do not contact the MRO within 72 hours, but can prove to the MRO that you had a legitimate reason for not doing so, the MRO can order the split specimen tested. Removal from safety-sensitive duty as required by the DOT following a positive drug test is not delayed to await the result of the split specimen test.

If the analysis of the split sample does not confirm the presence of a drug, the MRO cancels the test and reports this to the DOT, to the employer, and to you.

        4.11.5  Violation of Policy
Consequences for violating the alcohol or drug prohibitions are as follows:
1.  Alcohol violations
a.      Removal from safety-sensitive functions
b.      Prohibition from return to safety-sensitive duties until an evaluation has been done and any recommended treatment is completed
c.      Employees with an alcohol concentration of 0.02 or greater but less than 0.04 are prohibited from returning to safety-sensitive duties for at least 24 hours.
d.      Other appropriate discipline up to and including termination
2.  Drug violations
a.      Removal from safety-sensitive functions
b.      Prohibition from return to safety-sensitive duties until an evaluation had been done, recommended therapy is completed, and a verified negative drug test is produced.
c.      Other appropriate discipline up to and including termination

The alcohol and drug rule requires that the Town, as the employer, provide you with an opportunity for treatment. The ruling does not, however, require the Town to hold a job open for you or to pay for rehabilitation. If you violate an alcohol or drug prohibition you must be evaluated by a substance abuse professional to determine what help is needed. If you would like further information on alcohol or drug issues, you may do so on a confidential basis through our Employee Assistance Program. The following person should be contacted for assistance with drug and/or alcohol problems:

                The Personnel Officer, Town Hall, (978) 768-6531

4.12    Drug Free Workplace

It is the policy of the Town to provide employees with a working environment that is free of the problems associated with the use and abuse of controlled substances. The use of controlled substances is inconsistent with the behavior expected of employees and subjects the Town to unacceptable risk of workplace accidents or other failures that would undermine the Town’s ability to operate effectively and efficiently

The non-prescriptive use, sale, possession, distribution, dispensation, manufacture, or transfer of controlled substances on Town property, or at any other worksite where employees may be assigned, or elsewhere during work hours, is strictly prohibited.

Further prohibited is the use, sale, possession, distribution, dispensation, manufacture, or transfer of controlled substances on non-working time to the extent that such use impairs an employee’s ability to perform his/her job or where such use, sale, possession, distribution, manufacture or transfer affects the reputation of the Town to the general public or otherwise threatens its integrity.

Employees who are convicted of controlled substance-related violations in the workplace under state or federal law, or who plead guilty or nolo contendere to such charges, must inform their department head or appointing authority within 5 days of such conviction or plea. Department heads or appointing authorities shall notify the Personnel Director immediately.

Employees who are convicted, or who plead guilty or nolo contendere to such drug-related violations may be required to successfully complete a drug abuse or similar program as a condition of continued employment or re-employment.

All employees must sign a statement indicating that they have been informed of the rules and requirements of the Drug Free Workplace Act.

The Town recognizes that drug dependency is an illness and a major health problem. The Town’s objective is to prevent conviction for drug related offenses prior to their occurrence. Employees who wish to obtain help in dealing with such problems are encouraged to contact the Personnel Director, Public Health Nurse, or their health insurance provider for assistance. Conscientious efforts to seek such help will not jeopardize an employee’s job, and will not be noted in any personnel record.

        Violations of any and all provisions of this policy may result in disciplinary action.

4.13    ‘Whistleblower’ Policy
This policy is adopted pursuant to and in accordance with the Massachusetts Whistleblower Protection Act, 1992, Massachusetts General Laws, Chapter 149 (the “Act”) and is designed specifically to protect such conduct and provide such remedies as are set forth in the Act.

It is the policy of the Town:
a.      To encourage the reporting by its employees of improper governmental action taken by Town officers or employees; and
b.      To protect Town employees who have reported improper government actions in accordance with this policy.

The Town encourages the reporting of improper governmental action taken by any Town officers or employees, and the reporting of retaliatory actions for such reporting. The Town encourages initial reporting to the Town to allow for expeditious resolution of all such matters and to minimize any adverse impacts of the improper action. This policy states the city’s/town’s procedures for reporting improper governmental action and for protecting employees against retaliatory actions.

Town employees who obtain knowledge of facts demonstrating improper governmental actions should raise the issue first with their supervisor, the Town Administrator/designee, or the appropriate governmental agency responsible for investigating such improper action. If requested by the supervisor, the Town Administrator/designee, the employee shall submit a written report to the town stating in detail the basis for the employee’s belief that an improper governmental action has occurred.

In the case of an emergency, the employee may report the improper governmental action directly to a person or entity who is not the person’s supervisor, the Town Administrator/designee, or other government agency. In all other cases, the employee must first follow the reporting procedure outlined above.

An employee is not required to comply with the above procedure if he/she:
a.      is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer and the situation is emergency in nature;
b.      reasonably fears physical harm as a result of the disclosure provided; or
c.      makes the disclosure to a public body for the purpose of providing evidence of what the employee reasonably believes to be a crime.

Town employees who fail to make a good-faith attempt to follow this policy in reporting improper governmental action shall not receive the protections provided under this policy or the Act. Employees who make false reports may be subject to the disciplinary procedures in the town personnel code.

The supervisor or the Town Administrator/designee, as the case may be, shall take prompt action to assist the town in properly investigating the report of improper governmental action. Town officers, administrators, supervisors, and employees involved in the investigation shall keep the identity of reporting employees confidential to the extent possible under the law, unless the employee authorizes the disclosure of his or her identity in writing. After an investigation has been completed, the employee reporting the improper governmental action shall be advised of the summary of the results of the investigation, except personnel actions taken as a result of the investigation may be kept confidential.

Town officials, administrators, supervisors and employees are prohibited from taking retaliatory action against the town employee because he or she has in good faith reported an improper governmental action in accordance with this policy.

Employees who believe that they have been retaliated against for reporting an improper governmental action should advise their supervisor or the Town Administrator/designee. Town officials, administrators and supervisors shall take appropriate action to investigate and address complaints of retaliation. If the supervisor or the Town Administrator/designee, as the case may be, does not satisfactorily resolve an employee’s complaint that he or she has been retaliated against in violation of this policy, the employee, in accordance with the Act, may, within two years, institute a civil action in the superior court. Any party to said action shall be entitled to claim a jury trial. All remedies available in common law tort actions shall be made available to prevailing plaintiffs. These remedies are in addition to any legal or equitable relief provided herein.

The Town Administrator/designee is responsible for implementing the town’s policies and procedures: (1) for reporting improper governmental actions, and (2) for protecting employees against retaliatory actions. This includes insuring that this policy is permanently posted where all employees will have reasonable access to it and that this policy is made available to any employee upon request. The town will, to the extent it considers practical, provide training and education on the whistleblower policy. Town Administrators and supervisors are responsible for insuring that this policy is fully implemented within their areas of responsibility. Violations of this policy may result in appropriate disciplinary action, up to and including dismissal.

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