Personnel 370 DM Addition to FPM
Chapter 792 Drug Free Workplace 370 DM 792,9.6K(d)
(a) Nature and severity of the problem;
(b) Location of the treatment;
(c) Cost of the treatment;
(d) Intensity of the treatment environment;
(e) Availability of inpatient/outpatient care;
(f) Other special needs, such as transportation and child care; and
(g) Other special circumstances of the employee.
L. Site Coordinator. The Site Coordinator (SC) is a DOI employee designated by the Bureau DPC or other appropriate management official, at all DOI locations where testing is scheduled to be conducted. The SC responsibilities include coordinating the scheduling of employees selected for random testing with the appropriate supervisor, as necessary assisting in the collection duties, completing and forwarding employee collection records to the DPM and assisting with any required logistical arrangements.
M. General Program Provisions. Bureau heads shall develop implementation procedures to enable field offices to implement all aspects of this order, taking into
account the unique geographical, personnel, budgetary and other relevant factors of the bureau. With approval of the Drug Program Manager, testing may proceed under this order as soon as any field office or operating site is prepared to commence with testing. Such procedures shall also encourage cooperation and coordination among components, to conserve resources and efficiently implement this plan.
9.7 Advance Notification.
A. General Notice. A general notice from the Secretary announcing the testing program, as required by Section 4(a) of Executive Order 12564, will be provided to all employees at least sixty (60) days prior to the implementation date of the plan. The notice shall be provided immediately upon completion of the congressional certification procedures pursuant to Section 503 of the Act and shall explain:
(1) The purpose of the Drug-Free Workplace Plan;
(2) That the plan will include both voluntary and mandatory testing;
(3) That those who hold positions selected for random testing will also receive an individual notice, prior to the commencement of testing, indicating that their position has been designated a testing designated position;
(4) The availability and procedures necessary to obtain counseling and rehabilitation through the EAP;
(5) The circumstances under which testing may occur;
(6) That opportunity will be afforded to submit medical documentation of lawful use of an otherwise illegal drug;
(7) That the laboratory assessment is a series of tests which are highly accurate and reliable, and that, as an added safeguard, laboratory results are reviewed by the MRO;
(8) That positive test results verified by the MRO may only be disclosed to the employee, the appropriate EAP administrator, the appropriate management officials necessary to process an adverse action against the employee, or a court of law or administrative tribunal reviewing an adverse personnel action; and
(9) That all medical and rehabilitation records in an EAP will be deemed confidential patient records and may not be disclosed without the prior written consent of the patient.
B. Individual Notice. In addition to the general notice, an individual notice will be distributed to all employees in testing designated positions explaining, in addition to the information provided above:
(1) That the employee's position has been designated a "testing designated position;"
(2) That the employee will have the opportunity to voluntarily identify himself/herself as a user of illegal drugs and to receive counseling or rehabilitation, in which case disciplinary action is not required; and
(3) That the employee's position will be subject to random testing no sooner than thirty days thereafter.
The individual notice will also include a statement to be signed by each employee that the employee has received and read the notice which states that the employee's position has been designated for random drug testing; and that refusal to submit to testing will result in initiation of disciplinary action, up to and including dismissal.
C. If the employee refuses to sign the acknowledgement, the employee's supervisor or other appropriate official shall note on the acknowledgement form that the employee received the notice. This acknowledgement shall be centrally collected for easy retrieval by the DPC. An employee's failure to sign the notice shall not preclude testing that employee, or otherwise affect the implementation of this plan, since the general sixty-day notice will previously have notified all agency employees of the requirement to be drug-free.
9.8 Review of Designation. If an employee believes his/her position has been wrongly designated as a testing designated position (TDP), the avenue of appeal depends upon whether or not the employee is covered by a collective bargaining agreement.
A. Employees in a Bargaining Unit Covered by a Collective Bargaining Agreement. The right of an employee covered by a collective bargaining agreement to appeal the designation of his/her position as a TDP is subject to the provisions of the Federal Service Labor Management Relations Statute. Unless the negotiated grievance
procedure provides otherwise, it is the sole and exclusive procedure available for the appeal.
B. Appeal Rights of Other Employees. If the appeal is not subject to a negotiated grievance procedure, the employee may file an administrative appeal to the Assistant Secretary - Policy, Management and Budget. The appeal must be submitted by the employee, in writing, to the bureau head within 15 days of notification, setting forth all relevant information. Bureau heads are delegated authority to deny appeals found to lack merit but refer those with merit along with recommendations to the Assistant Secretary - Policy, Management and Budget for a decision. The Assistant Secretary - Policy, Management and Budget shall review the forwarded appeal and render a decision. The decision is final and is not subject to further administrative review.
Appendix A
Relationship to Other Programs
I. Employee Assistance Program (EAP)
A. Function. The Department's EAP plays an important role in preventing and resolving employee drug use by: demonstrating the commitment to eliminating illegal drug use; providing employees an opportunity, with appropriate assistance, to discontinue their drug use; providing educational materials to supervisors and employees on drug use issues; assisting supervisors in confronting employees who have performance and/or conduct problems and making referrals to appropriate treatment and rehabilitative facilities; and follow-up with individuals during the rehabilitation period to track their progress and encourage successful completion of the program. The EAP, however shall not be involved in the collection of urine samples or the reporting of test results. Further details of EAP operations are found in 370 DM 792.5. Specifically, the EAP shall:
(1) Provide counseling and assistance to employees who self-refer for treatment or whose drug tests have been confirmed positive, and monitor the employees' progress through treatment and rehabilitation;
(2) Provide needed education and training to all levels of the Department on types and effects of drugs, symptoms of drug use and its impact on performance and conduct, relationship of the EAP with the drug testing program, and related treatment, rehabilitation, and confidentiality issues; and
(3) Ensure that confidentiality of test results and related medical treatment and rehabilitation records are maintained.
B. Referral and Availability.
(1) Any employee found to be using illegal drugs shall be referred to the EAP. The EAP shall be administered separately from the testing program, and shall be available to all employees without regard to a finding of drug use. The EAP shall provide counseling or rehabilitation for all referrals, as well as education and training regarding illegal drug use. The EAP is available not only to employees, but, when feasible, to the families of employees with drug problems, and to employees with family members who have drug problems. The EAP Administrator shall be responsible for oversight and implementation of the EAP, and will provide, with the support of the Director of Program Services, high level direction and promotion of the EAP.
(2) In the event the employee is not satisfied with the program of treatment or rehabilitation, such employee may seek review of the EAP Counselor's referral by notifying the EAP Administrator prior to completion of the program. The decision of the EAP Administrator shall be final and shall not be subject to further administrative review. Regardless of the treatment program chosen, the employee remains responsible for successful completion of the treatment, and assertions that the counselor failed to consider factors in making a referral shall not constitute either an excuse for continuing to use illegal drugs or a defense to disciplinary action if the employee does not complete treatment.
C. Leave Allowance. Employees shall be allowed up to one hour (or more as necessitated by travel time) of excused absence for each counseling session, up to a maximum of six sessions, during the assessment/referral phase of rehabilitation. Absences during duty hours for rehabilitation or treatment must be charged to the appropriate leave category in accordance with law and leave regulations.
D. Records of Confidentiality. All EAP operations shall be confidential in accordance with provisions of this plan relating to records and confidentiality.
E. Structure. The EAP Administrator shall be responsible for oversight and implementation of the EAP, and will provide, with the support of the Director of Program Services, high level direction and promotion of the EAP.
II. Supervisory Training
A. Objectives. Since supervisors have a key role in establishing and monitoring a drug-free workplace, bureaus shall provide training to assist supervisors and managers in recognizing and addressing illegal drug use by agency employees. The purpose of supervisory training is to understand:
(1) Departmental policies relevant to work performance problems, drug use, and the EAP;
(2) The responsibilities of offering EAP services;
(3) How employee performance and behavioral changes should be recognized and documented;
(4) The roles of the medical staff, supervisors, personnel, and EAP personnel;
(5) The ways to use EAP;
(6) How the EAP is linked to the performance appraisal and the disciplinary processes; and
(7) The process of reintegrating employees into the workforce.
B. Implementation. The bureau head shall be responsible for imple-
menting supervisory training, and shall develop a training package to ensure that all employees and supervisors are fully informed of the Drug-Free Workplace Plan. Copies of the training packages are to be sent to the Director of Program Services.
C. Training Package. Supervisory training shall be required of all supervisors and may be presented as a separate course, or included as part of an ongoing supervisory training program. Training shall be provided as soon as possible after a person assumes supervisory responsibility. Training courses should include:
(1) Overall Departmental policy;
(2) The prevalence of various employee problems with respect to drugs and alcohol;
(3) The EAP approach to handling problems;
(4) How to recognize employees with possible problems;
(5) Documentation of employee performance or behavior, including referral for drug testing based on reasonable suspicion pursuant to 370 DM 792, 10.9;
(6) How to approach the employee;
(7) How to use the EAP;
(8) Disciplinary actions, and removals from sensitive positions as required by Section 5(c) of the Executive Order;
(9) Reintegration of employees into the workforce; and
(10) Written materials which the supervisor can use at the work site.
Failure to receive such training shall not invalidate otherwise proper reasonable suspicion testing.
III. Employee Education
A. Objectives. The EAP Administrator shall offer drug education to all employees. Drug education should include education and training to all levels of the bureau on:
(1) Types and effects of drugs;
(2) Symptoms of drug use, and the effects on performance and conduct;
(3) The relationship of the EAP to the drug testing program; and
(4) Other relevant treatment, rehabilitation, and confidentiality issues.
B. Means of Education. Drug education activities may include:
(1) Distribution of written materials;
(2) Videotapes;
(3) Lunchtime employee forums; and
(4) Employee drug awareness days.
Chapter 792 Drug Testing Procedures 370 DM 792,10.1
Subchapter 10. Drug Testing Procedures.
10.1 General. Individuals may be selected for testing in one or more of the categories listed below. For the protection of the individual and the Department in certain cases the individual may be required to provide a second specimen for testing. For example, if a specimen is collected and determined not to be testable, i.e., shipped to wrong laboratory, lost in shipping, urine leaked out, no chain of custody form, etc., a new specimen will be recollected from the donor. The recollection requirement does not apply to specimens determined by the laboratory to be adulterated (see section 10.12E). Also, if a specimen is received by the laboratory with omitted information on the chain of custody which could question the forensic validity of the specimen result, a second specimen may be collected. However, if the omitted information can be collected then a second specimen will not be necessary. The omitted information must be collected before the specimen is analyzed by the laboratory.
A. Random Testing. All employees in testing designated positions (TDPs) are subject to selection for random drug testing.
B. Voluntary Testing. Employees may volunteer for unannounced testing by notifying the servicing personnel office of their desire to do so.
C. Reasonable Suspicion Testing. Reasonable suspicion testing may be based upon, among other things, the criteria described under 370 DM 792, 10.9A.
D. Accident or Unsafe Practice Testing. Accident or unsafe practice testing may be based upon, among other things, the criteria described under 370 DM 792,10.11A.
E. Follow-up Testing. All employees who undergo counseling or rehabilitation programs for illegal drug use will be subject to unannounced testing, both during and after such a program.
F. Applicant Testing. Drug testing is required for all individuals who are tentatively selected for employment in testing designated positions. Individuals tentatively placed in a testing designated position may also be subjected to testing.
10.2 Technical Guidelines. The Department shall adhere to all scientific and technical guidelines for drug testing programs promulgated by HHS, consistent with the authority granted by Executive Order 12564 and to the requirements of Section 503 of the Act. The Department's drug testing program shall have professionally trained collection personnel, a laboratory certification program, rigorous analytical standards and quality assurance requirements for urinalysis procedures and strict confidentiality requirements.
10.3 Privacy Assured. Any individual subject to testing under the Order shall be permitted to provide urine specimens in private and in a rest room stall or similar enclosure so that the employee is not observed while providing the sample. Collection site personnel of the same gender, however, may observe the individual provide the urine specimen when such personnel have been notified by management that there is reason to believe the individual may alter or substitute the specimen to be provided. This would occur when:
A. Facts and circumstances suggest that the individual has altered or tampered with a urine specimen, such as when the temperature of the specimen is outside the acceptable range established in the mandatory guidelines;
B. Facts and circumstances suggest that the individual has equipment or implements capable of tampering or altering urine samples; or
C. The individual has previously tampered with a sample.
10.4 Failure to Appear. Failure to appear for testing without a deferral will be considered refusal to participate in testing, and will subject an employee to the
full range of disciplinary actions, including dismissal, and the cancellation of an offer of employment. If an individual fails to appear at the collection site at the assigned time, the collector shall contact the DPC to obtain guidance on action to be taken.
10.5 Opportunity to Justify a Positive Test Result. When a confirmed positive result has been returned by the laboratory, the MRO shall perform the duties set forth in the HHS Guidelines. For example, the MRO may choose to conduct employee medical interviews, review employee medical history, or review any other relevant biomedical factors. The MRO must review all medical records made available by the tested employee when a confirmed positive test could have resulted from legally prescribed medication. Evidence to justify a positive result may include, but is not limited to:
A. A valid prescription; or
B. A certification from the individual's physician verifying a valid prescription.
Chapter 792 Drug Testing Procedures 370 DM 792,10.5B
Individuals are not entitled, however, to present evidence to the MRO in a trial type
administrative proceeding, although the MRO has the discretion to accept evidence in any manner the MRO deems most efficient or necessary.
If the MRO determines there is no justification for the positive result, such result will then be considered a verified positive test result. The MRO or the staff of the MRO shall
immediately contact the EAP Administrator and Drug Program Manager, upon obtaining a verified positive test result.
10.6 Exemption from Testing. While participating in a counseling or rehabilitation program, and at the request of the program administrator, the employee may be exempted from the random testing designated position pool for a period not to exceed sixty days, or for a time period specified in an abeyance agreement or rehabilitation plan approved by the bureau head or his/her designee. Upon completion of the program, the employee shall be immediately subject to follow-up testing pursuant to 370 DM 792, 10.11C.
10.7 Savings Provision. To the extent that any of the procedures specified in this section are inconsistent with any of those specified in the Scientific and Technical Guidelines promulgated by the Department of Health and Human Services, or any subsequent amendment thereto, such HHS Guidelines or amendment shall supersede the procedures specified in this section, but only to the extent of the inconsistency.
10.8 Random Testing
A. Employees in Testing Designated Positions. The Executive Order requires random testing for employees in sensitive positions that have been designated as testing designated positions. The Department has determined that certain positions are testing designated positions for random testing.
B. Determining the Testing Designated Position. Among the factors considered in determining a testing designated position, are:
(1) the extent to which the Department:
(a) Considers its mission inconsistent with illegal drug use;
(b) Is engaged in law enforcement;
(c) Must foster public trust by preserving employee reputation for integrity, honesty and responsibility;
(d) Has national security responsibilities;
(e) Has drug interdiction responsibilities; or
(2) the extent to which the position considered -
(a) Authorizes employees to carry firearms;
(b) Gives employees access to sensitive information;
(c) Authorizes employees to engage in law enforcement;
(d) Requires employees, as a condition of employment, to obtain a security clearance; or
(e) Requires employees to engage in activities affecting public health or safety.
These positions are characterized by critical safety or security responsibilities as related to the mission of the Department. The job functions associated with these positions directly and immediately relate to public health and safety, the protection of life and property, law enforcement, or national security. These positions are singled out for random testing because they require the highest degree of trust and confidence.
The Secretary reserves the right to add or delete positions determined to be testing designated positions pursuant to the criteria established in the Executive Order and this plan. Moreover, pursuant to 42 U.S.C. 290ee-1(b)(2), and the pertinent provisions of the Federal Personnel Manual, the Secretary has determined that all positions which have been or will be designated as testing designated positions under this plan are "sensitive positions," and are therefore exempt from coverage under 42 U.S.C. 290ee-1(b)(1), which provides that no person may be denied or deprived of Federal civilian employment or a Federal professional or other license or right solely on the basis of prior drug abuse.
C. Implementing Random Testing. An organizational element other than the Drug Program Coordination Staff will be responsible for the random selection of employees for random testing. The names of employees selected will be provided to the Drug Program Manager for testing purposes. In implementing the program of random testing the Drug Program Manager (DPM) shall:
(1) Ensure that the means of random selection remains confidential; and
(2) Evaluate periodically whether the numbers of employees tested and the frequency with which those tests will be administered satisfy the duty to achieve a drug-free work force.
D. Notification of Selection. An individual selected for random testing, and the individual's first-line supervisor, shall be notified the same day the test is scheduled, preferably, within two hours of the scheduled testing. The supervisor shall explain to the employee that the employee is under no suspicion of taking drugs and that the employee's name was selected randomly.
E. Deferral of Testing. The time from random selection to actual testing should not exceed 14 calendar days. Individuals not available for testing within the 14-day period, i.e., on leave, travel, etc., will be exempted from testing and placed back in the random pool. The supervisor will be required to document in writing why the employee was not available for testing and report same in writing to the Director of Program Services.
10.9 Reasonable Suspicion Testing
A. Grounds.
(1) For employees in testing designated positions, testing may be required where there is reasonable suspicion of drug use based on, among other things:
(a) Observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;
(b) A pattern of abnormal conduct or erratic behavior;
(c) Arrest or conviction for a drug related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking;
(d) Information provided either by reliable and credible sources or independently corroborated; or
(e) Newly discovered evidence that the employee has tampered with a previous drug test.
(2) For employees not occupying testing designated positions, testing may be required only based on reasonable suspicion of on-duty drug use or drug related impairment. For these employees, such testing may be based on:
(a) Observable phenomena of on-duty drug use or impairment, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;
(b) A pattern of abnormal conduct or erratic behavior while on duty; or
(c) Information of on-duty drug use or impairment provided either by reliable and credible sources or independently corroborated.
(3) Although reasonable suspicion testing does not require certainty, mere "hunches" are insufficient to justify mandatory testing.
Finally, visual observation for all reasonable suspicion tests, regardless of the circumstances, 370 DM 792, 10.3 is not required.
B. Procedures. If an employee is suspected of using illegal drugs, the appropriate supervisor will gather all information, facts, and circumstances leading to and supporting this suspicion. The first line supervisor will present this information to the second line supervisor. If the second level supervisor agrees, he/she will present the facts to the servicing personnel officer. The servicing personnel officer shall contact the bureau Drug Program Coordinator (DPC) who will in turn contact the Department's Drug Program Coordination Staff Manager. The Drug Program Manager, in consultation with the bureau DPC and Solicitor's Office, will provide a recommendation to the bureau head or designee as to whether or not a reasonable suspicion test is warranted. If the test is warranted, the Drug Program Manager will coordinate the actual collection of the specimen with the servicing personnel officer.
When reasonable suspicion has been established, the appropriate supervisor will promptly detail, for the record and in writing, the circumstances which formed the basis to warrant the testing. A written report will be prepared by the supervisor to include, at a minimum, the appropriate dates and times of reported drug related incidents, reliable/credible sources of information that lead to the determination to order the test, findings of the test, and the action taken.
C. Obtaining the Sample. The employee may be asked to provide the urine sample under observation in accordance with the criteria set forth in 370 DM 792, 10.3.
10.10 Applicant Testing
A. Objectives. To maintain the high professional standards of the
Department's workforce, it is imperative that individuals who use illegal drugs
be screened out during the initial employment process before they are placed on the rolls. This procedure will have a positive effect on reducing instances of illegal drug use by employees working within the Department, and will provide for a safer work environment.
B. Extent of Testing. Drug testing shall be required of all individuals tentatively selected for employment in a testing designated position.
C. Vacancy Announcements. Every vacancy announcement for positions designated for applicant testing shall state:
"All applicants tentatively selected for this position will be required to submit to urinalysis to screen for illegal drug use prior to appointment."
In addition, each individual tentatively selected for a position will be notified that appointment to the position will be contingent upon a negative drug test result. Failure of the vacancy announcement to contain this statement notice will not preclude applicant testing if advance written notice is provided applicants in some other manner.
D. Procedures. The DPC shall direct applicants to an appropriate collection facility. The drug test must be undertaken as soon after notification as possible, and no later than 48 hours after notice to the applicant. Where appropriate, applicants may be reimbursed for necessary travel expenses.
Applicants will be advised of the opportunity to submit medical documentation that may support a legitimate use for a specific drug. They will be informed that such information will be reviewed only by the MRO or his/her designee to determine whether the individual is licitly using an otherwise illegal drug. The MRO will present his findings to the Drug Program Manager, who will contact the Drug Program Coordinator. The DPC will notify the servicing personnel officer, who will provide with a final determination.