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Knocking out drugs in the workplace.


AS PART OF THE WAR ON ILlegal drug use and the concern for employee and public safety, the federal government is requiring its contractors to establish and maintain drug-free work-place environments. These requirements have been mandated by the Department of Defense's Drug-Free Work Force Rules, the Drug-Free Workplace Act of 1988, and the Department of Transportation's Procedures for Workplace Drug Testing Programs.

The following article was presented at a one-day seminar, "Drug-Testing 1989: How to Meet the Federal Requirements." The seminar was sponsored by Employee Testing & the Law, a national newsletter that reports technical, legal, and policy developments in the field of employee testing. The article explains the provisions of these requirements and discusses some potential problems they may pose to companies that conduct business with the federal government.

Department Of Defense

The Department of Defense (DoD) published an interim rule (53 Federal Register 37763) requiring defense contractors to establish and maintain a program for a drug-free work force. Effective October 31, 1988, the interim rule amended DoD's acquisition regulation to require contracting officers to include a contract clause outlining the steps and criteria the employer will follow to meet DoD's drug-free work force objective.

This regulation applies to all solicitations and contracts - regardless of dollar value - to be performed within the United States that

* involve access to classified information,

* are determined by the contracting officer to require inclusion of the clause for national security reasons, or

* may endanger the health and safety of those who perform the contract or who are affected by the product of the contract. Contracts for commercial goods and contracts performed outside the United States, its territories, or possessions are not covered by the rule.

The requirements specified by DoD are designed to encourage a flexible approach to dealing with the problem of drugs in the work force. Thus, the rule prescribes certain elements the covered contrator's drug-free program must contain, but it does not specify the details or criteria for its implementation.

The regulations provide that a covered contractor's program must include the following elements or appropriate alternatives for a drug-free work force:

* an employee assistance program (EAP)

* training of supervisors to identify and address illegal drug use

* a provision for self-and supervisory referrals for treatment

* a program for employee testing for illegal drug use

The drug-testing requirement applies to employees with access to classified information or those in positions the contractor determines involves national security, health, safety, or other functions involving a higher degree of trust and confidence.

No provision has been set as to when or how often these employees must be tested or which employees have positions that are considered sensitive. These determinations are left to the contractor to make based on the

* nature of the work performed under the contract,

* employees' duties,

* efficient use of the contractor's various resources, and

* attendant risks to public health and safety and national security that could result from a failure of the employee to carry out his or her job duties adequately.

The rules further authorize contractors to test an employee regardless of the sensitivity of his or her position when

* a reasonable suspicion exists that the employee uses illegal drugs,

* the employee has been involved in an accident or unsafe practice,

* the testing is performed as part of a follow-up to counseling or rehabilitation for illegal drug use, or

* the employee volunteers to be tested. Preemployment drug testing is also authorized.

According to DoD, though not specified in the interim rule, there must be some random drug testing based solely on an employee's position or access to classified information. Recently DoD stated that testing job applicants for illegal drug use does not replace the requirement for later random testing. Again, while contractors must include random testing in their programs, the extent and criteria of the random drug testing are the contractors' responsibility.

Contractors also must adopt appropriate personnel procedures to deal with employees who test positive for illegal drug use. The regulations specifically forbid an employee who tests positive from performing in a sensitive position until the contractor, in accordance with personnel procedures established by it, determines that the employee may perform in such a position.

The drug-testing requirements do not apply if they are inconsistent with state or local law or if they conflict with an existing collective bargaining agreement. In the latter case, however, the contractor must certify that drug testing will be a subject for negotiation at the next collective bargaining session.

DoD has indicated that the costs of contractors drug-testing programs may be charged to DoD contracts in accordance with the Federal Acquisition Regulation (FAR) and DoD Federal Acquisition Regulation Supplement (FARS). A final rule is due to be published this spring. No doubt it will contain revisions conforming to DoD's perception of the requirements of the Supreme Court's decisions in National Treasury Employees Union v. Von Raab and Skinner v. Railways Labor Executives' Association. DoD probably will provide contracting officers with more objective criteria on which to base their decisions to apply the drug-testing requirement.

Finally, according to the former DoD general counsel, DoD may modify the regulation to preempt state and local laws that conflict with DoD regulations instead of deferring to them as is now provided by the interim rule.

Federal Contractors

Congress enacted the Drug-Free Workplace Act of 1988, which requires federal government contractors and employers that receive federal grants to maintain drug-free workplaces. The act was signed into law by former President Reagan on November 18, 1988, and went into effect on March 18, 1989.

An interim FAR was issued on January 31, 1989, implementing the provisions of the act. It requires federal contractors who receive procurement contracts including purchase orders of $25,000 or more to maintain drug-free workplaces by meeting certain requirements.

All contracts awarded to individuals - regardless of dollar value - are subject to the requirements of the act. Covered employers must include the drug-free workplace requirements in solicitations as a certification requirement and as a contract clause in resulting awards to be eligible for contract awards or grants. The rule applies to contracts issued on or after March 18, 1989, and to existing contracts with major modifications made on or after that date. Hospitals that receive medicare reimbursements and banks that sell US treasury bonds are not covered by the act.

The interim FAR does not require contractors to implement drug-testing programs. Contractors who also are subject to the DoD interim rule on drug-free work forces will be required to institute drug-testing programs for employees in sensitive positions or who have access to classified information.

Under FAR, federal contractors are required to do the following:

* Publish a policy prohibiting the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in the workplace. They also must specify the actions to be taken against employees who violate the policy's provisions. Each employee must be provided with a copy of the policy.

* Establish a drug-free awareness program advising employees about the dangers of drug abuse in the workplace; the company's policy of maintaining a drug-free workplace; any available drug counseling, rehabilitation, and EAPs; and the penalties that may be imposed for drug abuse violations.

* Inform employees they are required as a condition of employment not only to abide by the terms of the policy but also to report any criminal convictions for drug-related offenses in the workplace within five days after such convictions.

* Notify the federal contracting agency of any criminal convictions of employees for drug-related activity in the workplace within 10 days after receiving notice of such convictions.

* Take appropriate action against employees convicted of a drug offense up to and including termination, or require the employees to complete a drug-abuse rehabilitation program satisfactorily within 30 days of notifying the company of conviction.

* Make a good faith effort to maintain a drug-free workplace.

A contractor who fails to comply with the act's requirements may be subject to suspension of contract payments, contract termination, or suspension or debarment from future government awards if it

* makes a false certification,

* fails to comply with the certification, or

* has numerous employee workplace convictions indicating its failure to provide a drug-free workplace.

These sanctions may be waived with respect to a particular contract where the head of the contracting agency determines that the sanctions would severely disrupt the operation of the agency to the detriment of the federal government or the public.

The law does not mandate employee drug testing, and therefore, compliance with the act is not particularly burdensome. Given the potentially significant sanctions for noncompliance, all covered employers should become familiar with the act's requirements and take steps promptly to ensure compliance.

Department of Transportation

Drug testing regulations issued on November 4, 1988, by the Department of Transportation (DOT) require anti-drug programs in the aviation, motor carrier, railroad, maritime, mass transit, and pipeline industries. These industries include nearly 4 million workers whose jobs have safety or security implications. The regulations feature mandatory random testing as well as detailed procedures for sample collection, chain of custody, authorized laboratory services, reporting and confidentiality of test results, and record keeping.

Under DOT rules, employees in safety-sensitive or security-related positions in all sectors of the public and private transportation industries are subject to random drug testing. In the airline industry, covered employees include commercial pilots, flight attendants, aircraft dispatchers, mechanics, and airport security screening personnel. Mass transit employees subject to the rules include drivers of buses carrying more than 15 passengers; drivers of trucks weighing 26,000 pounds or more; drivers of trucks of any size carrying hazardous materials; and bus and subway drivers, vehicle controllers, and maintenance crews of state and local mass transportation agencies.

Owner-operators of trucks also are subject to testing either by a company with which the owner-operator has a contract or a consortium of owner-operators. Also covered are railroad workers such as engineers, conductors, signal maintenance personnel, yard crews, and dispatchers.

In the maritime industry the drug-testing requirements will apply to merchant mariners whose job duties directly affect the safe operation of their vessels and anyone in a safety-sensitive position on a vessel required to be operated by a licensed or documented individual, including state-employed ship pilots and self-employed operators of vessel. Employees performing operation maintenance and emergency-response functions at pipeline and liquified natural gas facilities are subject to the rules also.

DOT regulations provide that employers in regulated industries must collect and test employee urine samples for the presence of the big five - marijuana cocaine, opiates, amphetamines, and phencyclidine. Test for alcohol or other drugs may be performed on the initial employee sample if specifically required or authorized by DOT. Employers wishing to test for additional controlled substances must collect a second, separate urine specimen from each employee and assume responsibility for testing the samples.

Random testing is to be conducted in half the workers eligible for testing in a 12-month period. Where a consortium arrangement exists, the 50 percent testing rate is applied to the entire employee population covered by the consortium.

DOT regulations require employers to develop and maintain clear and well-documented procedures for the collection, handling, transfer, and testing of employee urine samples, including the use of a standard urine control-and-custody form for each sample collected. This form is designed to create a permanent record to provide identifying data on tested employees and information on each phase of the specimen collection, transfer, and testing process. Other required safeguards are

* tamperproof seals on bottles containing urine samples;

* sealable shipping containers to prevent undetected tampering; and

* written collection procedures, instructions, and training.

DOT rules provide for specific specimen-collection procedures. For example, employers must establish one or more locations where employees' urine samples will be obtained. Before testing, employees must receive written notice of the requirements of the drug-testing program and the effect of a refusal to submit to a drug test. Employees also are required to fill out drug-testing forms before submitting to the test. Employees are not permitted to take any items into the testing area that could be used to adulterate a urine sample.

DOT regulations prescribe that employers use only those laboratories approved and certified by the US Department of Health and Human Services. Approved labs must

* provide for unannounced inspections by the employer and the DOT agency having jurisdiction over the employer,

* maintain confidentiality of records of employee drug tests,

* provide copies of analyses of drug tests to DOT or the DOT agency with regulating authority over the employer, and

* report the results of drug test to employers within five working days from receipt of the test samples and report all results - both positive and negative - at the same time. (The rationale for batch reporting is to avoid compromising the confidentiality of persons whose screening test is positive but whose confirmation test is considered negative.)

Further, the labs may not communicate any results by telephone or include any identifying information in monthly statistical summaries of urinalysis testing provided to employers.

Under the regulations, employers are required to submit all positive test results to a review by a medical review officer (MRO), who may be an employee of the company or a private physician. The role of the MRO is to determine whether the positive test result could be the result of the use of legally prescribed medication.

In performing this review, the MRO may interview the employee or review medical records provided by the employee. If the MRO determines that the test result could be explained by a legitimate medical reason, the test must be reported as negative. Before reporting a positive result, the MRO must give the employee an opportunity to discuss the test result with him or her. The MRO has the authority to order a reanalysis of the employee's original sample, either on his or her own motion or on the timely request of the employee. Finally, the MRO may determine that a test result is scientifically insufficient for further action and declare the test specimen negative.

DOT regulations provide that records pertaining to a given urine sample as well as documentation on all aspects of the testing process must be retained by the testing laboratory for at least two years. Documents pertaining to any specimen under legal challenge must be maintained indefinitely.

Regulations also require any specimen that tests positive on the initial screen to be subject to confirmatory testing using gas chromatography/mass spectrometry (GC/MS). On written request, employers are required to provide tested employees with access to test records.

Test collection procedures set forth in DOT regulations require employees be allowed to provide a urine specimen in the privacy of a stall or a secured, partitioned area that allows for privacy. If, however, there is reason to believe an employee has altered or substituted a specimen, the employee can be required to provide a second sample under the direct observation of an authorized person of the same gender with approval by a designated employer representative or high-level supervisor.

Employees may be required to sign a consent-and-release form authorizing the collection and analysis of a urine sample and the release of results to the employer. Employees may not be required to sign a waiver of liability for negligence in the collection, handling, or analysis of a specimen.

The following issues are the focus of criticism of DOT regulations:

* Laboratory restrictions. Requiring the use of laboratories that have been approved and certified by the US Department of Health and Human Services limits the pool of available labs to approximately 20. Critics' argue that noncertified labs or on-site screening tests ought to be allowed.

* Drug detection limits. The drug detection limits specified will allow some employees who use drugs to avoid detection.

* Blind specimens. Requiring employers to submit blind samples to the testing lab is unnecessary and expensive since the laboratory has already passed several quality control tests to acquire certification.

* MROs. Requiring MROs to review every positive test result is unnecessary in cases where no possible legitimate medical record exists to explain a positive result.

* Results reporting. Requiring that both positive and negative results be reported at the same time injects unnecessary delay into the process. Negative results, which do not have to be confirmed by GC/MS, are available sooner than the results of specimens that screen positive. Allowing the negative results to be reported immediately would allow the majority of employees to get on with their business sooner than if they had to wait for the positive test results to be confirmed.

Since DOT regulations were promulgated, more than 20 lawsuits have been filed to forestall their enforcement, yet only one court has issued a decision. On December 30, 1988, a US District Court judge in California issued a preliminary injunction against the Federal Highway Administration's ability to enforce DOT regulations requiring random and postaccident drug testing of commercial vehicle operations. The court ruled that postaccident testing is permitted only where there is reasonable suspicion that a driver was under the influence of controlled substances while operating a commercial vehicle. The injunction does not prevent a motor carrier from implementing random and postaccident testing, but it does restrict the highway administration's enforcement powers.

Bruce S. Harrison and Gary L. Simpler are attorneys in the law firm of Shawe & Rosenthal in Baltimore, MD. Both have extensive experience in counseling union and nonunion businesses in establishing drug and alcohol testing policies.
COPYRIGHT 1989 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1989 Gale, Cengage Learning. All rights reserved.

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Author:Harrison, Bruce S.; Simpler, Gary L.
Publication:Security Management
Date:Nov 1, 1989
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