This Departmental Manual Release, 370 DM 792, 9 and 10, provides minor changes to the Department's Drug-Free Workplace Program approved by the Department of Health and Human Services on April 27, 1988. The program provides for counseling education, training and urine testing of selected employees as a means of assuring the Drug-Free Workplace by Executive Order 12564, dated September 15, 1986. Thechanges primarily affect the roles of the Drug Program Manager and the Medical Review Official, reasonable suspicion testing, post-accident testing, drug testing procedures, random testing and records retention schedule.
Office of Personnel
This Departmental Manual Release, 370 DM 792, 9 and 10, provides minor changes to the Department's Drug-Free Workplace Program approved by the Department of Health and Human Services on April 27, 1988. The program provides for counseling, education, training and urine testing of selected employees as a means of assuring the Drug Free Workplace by Executive Order 12564, dated September 15, 1986. The changes primarily effect the role of the Drug Program Manager, the Medical Review Official, reasonable suspicion testing and post-accident testing.
Subchapter 9 Drug Free Workplace
9.1 Introduction 9.2 Policy 9.3 Authorities 9.4 Scope 9.5 Definitions 9.6 Responsibilities 9.7 Advance Notification 9.8 Administrative Review of Designation
Subchapter 10 Drug Testing Procedures
10.1 General 10.2 Technical Guidelines 10.3 Privacy Assured 10.4 Failure to Appear 10.5 Opportunity to Justify a Positive Test Result 10.6 Exemption from Testing 10.7 Savings Provision 10.8 Random Testing 10.9 Reasonable Suspicion Testing 10.10 Applicant Testing 10.11 Other Types of Testing 10.12 Finding of Drug Use and Consequences 10.13 Records
Subchapter 9. Drug Free Workplace.
9.1 Introduction. On September 15, 1986, the President signed Executive Order 12564, Drug-Free Federal Workplace, establishing a policy against the use of illegal drugs by Federal employees, whether on duty or off duty.
A. On July 11, 1987, Congress passed legislation effecting implementation of the Executive Order under Section 503 of the Supplemental Appropriations Act of 1987, Pub. L. 100-71, 101 Stat. 391, 468-471, codified at 5 U.S.C. 7301 note (1987), (hereafter, "the Act"), in an attempt to establish uniformity among Federal agency drug testing plans, reliable and accurate drug testing, employee access to drug testing records, confidentiality of drug test results, and centralized oversight of the Federal Government's drug testing program.
B. The Executive Order recognized that illegal drug use is having serious adverse effects upon a significant proportion of the national work force and results in billions of dollars of lost productivity each year. The Federal Government, as the largest employer in the Nation, has a compelling proprietary interest in establishing reasonable conditions of employment including a plan designed to offer drug users a helping hand and, at the same time, demonstrating to drug users and dealers that illegal drugs will not be tolerated in the Federal workplace.
C. The use of illegal drugs by Federal employees, on or off duty, cannot be tolerated. Employees who use illegal drugs, on or off duty, are less productive, have more on-the-job accidents, and a higher absenteeism rate than employees who do not use drugs and, thus, impair the Department's function to serve as an able custodian of the Nation's natural resources.
D. Drug usage could result in loss of life, injury, and damage or destruction of property. Emergency personnel must perform duties instantly and independently during times of crises with minimal supervision. For example, law enforcement officers and firefighters must be alert and ready to respond to emergency situations instantaneously.
E. Drug-using employees who interact with private industry could market for personal gain: (1) proprietary commercial and financial information of private entities in connection with mineral exploration and development; (2) advance notice of Departmental initiatives concerning leasing activities on Federal lands; (3) advance notice on planned Departmental land acquisition activities; and (4) proprietary data, including bid prices, in connection with procurements by the Department of goods and services. Further, drug usage could lead to intentional or unintentional law enforcement omissions or regulatory determinations benefiting particular entities, or intentional misfeasance in the expectation of kickbacks or other pecuniary benefits.
F. Further, drug usage by certain employees could result in impairment of judgment, skills or vigilance, leading to defeat or improper compromise in enforcement, collection activities and litigation (e.g., in the surface mining and fish and wildlife areas). Defeat or improper compromise would allow continued illegal activities, depletion of the nation's natural resources (including migratory birds and endangered species), and thwart the recompense to the public (in the form of civil and criminal penalties) for statutory violations of natural resources laws.
G. Drug usage by certain administrative, technical, and fiscal employees has the potential for exceptionally grave impact involving functions of major importance to the agency's mission with major program responsibilities affecting the efficiency of the service. Drug use has the potential for misuse of computer and communications technology for criminal purposes. There is also the potential for major errors which could result in improper payments, unnecessary purchases or other improper actions.
9.2 Policy. It is the policy of the Department that the use of illegal drugs, on or off duty, will not be tolerated. It is the responsibility of every employee to comply with this policy. The Department will promote this policy through its Drug-Free Workplace Plan. The plan shall complement the alcohol and troubled employee program described in 370 DM 792,5. The overall plan will consist of:
A. Education and Training. Consistent with 370 DM 412,4.9, training will be provided for supervisors to assist in identifying and addressing illegal drug use by employees. Training may be accomplished through various means, including contracting out to private organizations, HHS courses, in-house training courses, and employee assistance program training in cooperation with designated Employee Assistance Program (EAP) Administrators, or other designated individuals(s). Training will include information regarding referral of employees to the EAP, procedures and requirements for drug testing and signs of possible drug use. Such training will also include information to make supervisors more sensitive to employee drug behavior and help supervisors recognize and document facts that give rise to a reasonable suspicion that an employee may be using illegal drugs.
B. Counseling. Counseling referral will be available to employees who either request counseling or are referred by a supervisor. The referral may or may not be as a result of a positive drug test.
C. Drugs To Be Tested For. At a minimum, employees will be tested for marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). Additional categories of drugs may be included at the discretion of the Medical Review Official in accordance with HHS guidelines.
D. Labor Organizations. The active participation and support of labor organizations can contribute to the success of this program. Management will seek ways in which recognized bargaining unit representatives might assist in program implementation, such as in acquainting employees with rehabilitation facilities and by enhancing employee confidence in the program. Management will continue to observe agreements already reached, will include union representatives in general orientation and training programs, and will continue to meet its obligations under Title VII of the Civil Service Reform Act of 1978.
9.3 Authorities.
A. Executive Order 12564, Drug-Free Federal Workplace;
B. Executive Order 10450, Security Requirements for Government Employment;
E. Standards for Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies, Alcohol, (ADAMHA), (HHS), as amended;
F. Civil Service Reform Act of 1978, P. L. 95-454;
G. 42 CFR Part 2, establishing requirements for assuring the confidentiality of alcohol and drug-abuse patient treatment records;
H. The Privacy Act of 1974 (5 U.S.C. Section 552a), prescribing requirements governing the maintenance of records by agencies pertaining to the individuals and access to these records by the individual(s) to whom they pertain;
I. 43 CFR Part 2, implementing the Privacy Act of 1974 within the Department;
J. Federal Employees Substance Abuse Education and Treatment Act of 1986, P. L. 99-570 (5 U.S.C. 7361, et. seq.)
9.4 Scope.
A. Incumbents of testing designated positions shall be subject to drug testing by appropriate methods. The Secretary or his/her designee may determine that positions are appropriate for designation as "sensitive" at a later date.
B. Nature, Frequency, and Type of Drug Testing to Be Implemented.
(1) The Department's program includes the following types of drug tests: (1) voluntary testing; (2) random testing of employees in testing designated
positions; (3) reasonable suspicion testing; (4) applicant testing; (5) accident or unsafe practice testing and (6) testing as part of or as a follow-up to counseling or rehabilitation.
(2) An employee may be found to use illegal drugs on the basis of any appropriate evidence, including but not limited to direct observation, evidence obtained from an arrest or a criminal conviction, a verified positive test result, or an employee's voluntary admission.
(3) This program is intended to achieve a drug-free workplace, while at the same time offering rehabilitative assistance to employees who use illegal drugs. The severity of the disciplinary action taken against an employee found using illegal drugs will depend on the facts and circumstances of the case and will be consistent with the Executive Order. These include the full range of disciplinary actions up to and including removal.
(4) The annual frequency of random testing of the testing designated positions will be a reasonable percentage but generally estimated to be in the range of 15 percent Departmentwide. The Secretary or his/her designee may increase or decrease the frequency of testing based on the Department's mission, need, availability of resources, and experience in the program, consistent with the duty to achieve a drug-free workplace under the Executive Order.
9.5 Definitions.
A. "Applicant" means any individual tentatively selected for employment and includes any individual who has been tentatively identified for placement in a testing designated position and who has not, immediately prior to the placement, been subject to random testing. Employees currently occupying testing designated positions (TDPs) who apply and are tentatively selected for another TDP, are considered to be applicants and therefore subject to applicant testing. In cases of directed management assignment into TDPs, where for the "good of the service" an individual is placed into a TDP, the individual is not considered to be an applicant for purposes of applicant testing.
B. "Drug Program Coordinator (DPC)" means an official in each bureau headquarters assigned to carry out the purposes of this plan by the bureau head.
C. "Employee Assistance Program (EAP)" means the Department's counseling program that offers assessment, short-term counseling, and referral services to employees for a wide range of drug, alcohol, and mental health problems, and monitors the progress of employees while in treatment.
D. "Employee Assistance Program Administrator" means the individual responsible for ensuring the development, implementation and review of the Department EAP.
E. "Employee Assistance Program Coordinator" means the bureau official (designated by the bureau head) responsible for implementing and operating the EAP within the bureau component assigned to the coordinator, by providing counseling, treatment, and education services to employees and supervisors.
F. "Medical Review Official (MRO)" means the official who is responsible for receiving laboratory results and who is a licensed physician with knowledge of substance abuse disorders and the appropriate medical training to interpret and evaluate all positive test results together with an individual's medical history and any other relevant biomedical information.
G. "Illegal Drugs" means a controlled substance included in Schedule I or II, as defined by section 802(6) of Title 21 of the United States Code, the possession of which is unlawful under Chapter 14 of that Title. The term "illegal drugs" does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by law.
H. "Management Official" means an employee required or authorized by the Department to formulate, determine, or influence the policies of the Department (5 U.S.C. 7103(a)(11)).
I. "Random Testing" means a system of drug testing imposed without individualized suspicion that a particular individual is using illegal drugs. Random testing may either be uniform-unannounced testing of employees occupying a specified area, element or position, or may be a statistically random sampling of such employees based on a neutral criterion, such as social security numbers.
J. "Employees in Sensitive Positions" means:
(1) Employees in positions designated by the Secretary or his/her designee as Special Sensitive, Critical Sensitive, or Noncritical-Sensitive under Chapter 731 of the Federal Personnel Manual; employees in positions designated by the Secretary or his/her designee as sensitive in accordance with Executive Order No. 10450, as amended;
(2) Employees granted access to classified information or who may be granted access to classified information pursuant to a determination of trustworthiness under Section 4 of Executive Order No. 12356;
(3) Individuals serving under Presidential appointments;
(4) Law enforcement officers as defined in 5 U.S.C. 8331(20) and 8401(17); or
(5) Other positions that the Secretary or his/her designee determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.
K. "Supervisor" means an employee having authority to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove other employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature, but requires the consistent exercise of independent judgement (5 U.S.C. 7103(a)(10)).
L. "Testing Designated Positions" means employee positions which have been designated for random testing.
M. "Verified Positive Test Result" means a test result that has been screened positive by an FDA-approved immunoassay test, confirmed by a Gas Chromatography/ Mass Spectrometry assay, (or other confirmatory test approved by HHS), evaluated by the Medical Review Official and determined by him/her that there is no justification under 370 DM 792, 10.5.
9.6 Responsibilities.
A. Secretary or Designee. The Secretary or his/her designee shall be responsible for approving positions to be subject to drug testing and for assuring that resources are provided for the program. As necessary provide approval for discretionary funding of demand reduction activities.
B. Director of Program Services. The Director of Program Services shall oversee the administration of this program in achieving the objective of a drug-free workplace with due consideration of the rights of the Government, the employee, and the general public.
C. Drug Program Manager. The Drug Program Manager (DPM) will provide technical management and guidance to the Director of Program Services and bureau heads. The DPM coordinates with bureau Drug Program Coordinators, Medical Review Official and the Employee Assistance Program Administrator, regarding their duties and responsi-bilities under the plan. Additionally, the DPM will initiate disciplinary action advising appropriate bureau heads in writing of all verified positive test results. The DPM will inform bureau Drug Program Coordinators of the results of all drug testing. The DPM will coordinate all drug testing activities in field offices and Headquarters and with the assistance of the EAP Administrator, publicize and disseminate drug program educational materials. The DPM will act as the Contracting Officer's Technical Representative (COTR) for collection and laboratory testing contracts and ensure that contractors are performing all functions in accordance with HHS technical and scientific guidelines. The Drug Program Manager is in the chain of review of disciplinary actions, once they are initiated.
D. Bureau/Office Heads. Each bureau/office head shall:
(1) Provide Employee Assistance Programs (EAP) emphasizing high level direction, education, counseling, referral to rehabilitation, and
coordination with available community resources;
(2) Arrange supervisory training to assist in identifying and addressing illegal drug use by agency employees;
(3) Provide for self-referrals as well as supervisory referrals to treatment services with maximum respect for individual confidentiality, consistent with safety and security issues;
(4) Provide for testing pursuant to this plan;
(5) Designate appropriate personnel to serve as Drug Program Coordinators and EAP staff;
(6) Ensure compliance with all confidentiality requirements;
(7) Provide test results to the employee's supervisor for the initiation of discipline; and
(8) Ensure compliance with the requirements of the Privacy Act of 1974 for Employee Assistance Program records maintained on individuals (see Part 383 DM).
E. Servicing Personnel Officers shall assure that each employee receives a copy of the procedure and shall provide such oversight as is necessary to assure that the chain of custody procedures are followed.
F. Medical Review Official. The Medical Review Official shall, among other duties:
(1) Receive from the laboratory the original chain of custody forms for each specimen collected. Assure that an individual for whom a confirmed positive test has been reported is afforded an opportunity to justify the test results. In reviewing the laboratory results, the MRO may conduct a medical interview with the individual, review the individual's medical history, or review other relevant biomedical factors. Individuals are not entitled to present evidence in a trial type administrative proceeding. The MRO must review all medical records that the tested individual submits when a confirmed positive test could have resulted from legally prescribed medication.
(2) If any question arises as to accuracy and validity of a confirmed positive test result the MRO should, in collaboration with the laboratory director and consultants, review the laboratory records to determine whether the required procedures were followed.
(3) If there is no reasonable medical reason (e.g., legitimate
verified positive and will be disclosed to the Drug Program Manager and EAP Administrator, as required by the Agency Plan. Any medical information provided by the individual that is not specifically related to use of illegal drugs, will be treated as confidential and will not be disclosed to the EAP Administrator or DPM.
(4) If it is determined with reasonable certainty that there is a legitimate medical explanation or other reason to account for the confirmed positive laboratory findings, the test will be deemed to be negative and no information identifying the specific employee will be disclosed. Any medical information provided by the individual will be treated as confidential.
(5) All results, both positives and negatives, will be reported to the Drug Program Manager. Further, in cases of positives the MRO will also report same to the Departmental Employee Assistance Program Administrator.
(6) To ensure adequate documentation, a screening report on all positive drug tests as reported by the laboratory, will be prepared and maintained by the MRO. In cases where the MRO determines the positive is medically justified every effort will be made to obtain written documentation (prescriptions, letters from physicians, etc.) to support the decision. However, the final decision on documentation requirements rests with the MRO.
(7) In cases of negative results, a screening report will be prepared and maintained by the MRO when omissions on the chain of custody form could question the forensic validity of the result. A recollection and retesting can be ordered by the MRO.
(8) A quarterly inspection of the MRO's records will be conducted by an independent second physician to verify the accuracy and sufficiency of the MRO's records. A report of the findings will be sent to the Director of Program Services.
G. Supervisors. Supervisors will be trained to recognize and address illegal drug use by employees, and will be provided information regarding referral of employees to the EAP, procedures and requirements for drug testing, and behavioral patterns that give rise to a reasonable suspicion that an employee may be using illegal drugs. Except as modified by the Secretary or his/her designee, to suit specific program responsibilities, first-line supervisors shall:
(1) Attend training sessions on illegal drug use in the workplace;
(2) Initiate a reasonable suspicion test, after first making factual observations and documenting those observations and obtaining approval from a higher level supervisor consistent with 370 DM 792, 10.9;
(3) Refer employees to the EAP for assistance in obtaining counseling and rehabilitation, upon a finding of illegal drug use;
(4) Initiate appropriate disciplinary action upon a finding of illegal drug use by a subordinate; and
(5) In conjunction with personnel specialists, assist higher level supervisors and the EAP Administrator in evaluating employee performance and/or personnel problems that may be related to illegal drug use. Higher level supervisors and the servicing personnel officer shall review and concur in advance, with all reasonable suspicion tests ordered under their supervision.
H. Drug Program Coordinator (DPC). Each bureau shall have a Drug Program Coordinator (DPC) assigned to carry out the purposes of this plan. The DPC shall be responsible for implementing, directing, administering, and managing the drug program within the bureau. The DPC shall serve as the principal contact with the DPM in assuring the effective operation of the collection portion of the program. In carrying out this responsibility, the DPC shall, among other duties:
(1) Arrange for employee notifications and collection arrangements for drug testing authorized under this order;
(2) Ensure that all employees subject to random testing receive individual notice prior to implementation of the program, and that such employees return a signed acknowledgement of receipt;
(3) In coordination with the EAP Administrator, publicize and dissemi-nate drug program educational materials, and oversee training and education sessions regarding drug use and rehabilitation;
(4) Coordinate drug free workplace activities in field offices wherever possible to conserve resources and to efficiently and speedily accomplish reliable and accurate testing objectives; and
(5) The bureau Drug Program Coordinators will inform servicing person-nel officers of the results of applicant testing and will inform other
I. Employee Assistance Program Administrator. The EAP Administrator shall:
(1) Coordinate the development, implementation, and evaluation of the EAP. (See Appendix A);
(2) Supervise and designate the headquarters EAP Coordinator and counselors, and assist them in establishing field office EAP's; and
(3) Advise bureaus on the submission of annual statistical reports, and prepare consolidated reports on the Department's EAP activity.
J. Employee Assistance Program Coordinator. The Employee Assistance Program Coordinator in each bureau shall:
(1) Implement and operate the EAP within the bureau component assigned to the coordinator;
(2) Provide counseling and treatment services to all employees referred to the EAP by their supervisors or on self-referral, and otherwise offer employees the opportunity for counseling and rehabilitation;
(3) Coordinate with the bureau, the MRO and supervisors, as appropriate;
(4) Work with the DPC to provide educational materials and training to managers, supervisors, union representatives, and employees on illegal drugs in the workplace;
(5) Assist supervisors with performance and/or personnel problems that may be related to illegal drug use;
(6) Monitor the progress of referred employees during and after the rehabilitation period;
(7) Ensure that training is provided to assist supervisors in the recognition and documentation of facts and circumstances that support a reasonable suspicion that an employee may be using illegal drugs;
(8) Maintain a list of rehabilitation or treatment organizations
provide counseling and rehabilitative programs, and include the following information on each such organization:
(a) Name, address, and telephone number;
(b) Types of services provided;
(c) Hours of operation, including emergency hours;
(d) The contact person's name and telephone number;
(e) Fee structure, including insurance coverage;
(f) Client specialization; and
(g) Other pertinent information.