**FACT SHEET ON THE CONSEQUENCES OF A POSITIVE DRUG TEST**

The Secretary has determined that applicants for, and holders of, a DOE
"Q" or "L" access authorization (security clearance) will be in Testing
Designated Positions (TDP) as specified in DOE Order 3792.3, *Drug-Free
Federal Workplace Testing Implementation Program,* for federal
employees, and Title 10 Code of Federal Regulations, Part 707,
*Workplace Substance Abuse Programs at DOE Sites,* for contractor
employees. Accordingly, individuals who are either in, or are selected
for, a TDP are subject to applicant, random, and 'for cause' testing.
The information below summarizes the consequences of a positive test for
drugs for each category of employment.

**I. CONTRACTORS**

**A. Contractor applicant for contractor employment - employment
consequences:**

Section 707.14(a) of DOE's regulations governing workplace substance
abuse programs at DOE sites states: "When an applicant for employment
has been tested and determined to have used an illegal drug, processing
for employment will be terminated and the applicant will be so
notified."

**B. Contractor applicant for DOE access authorization -- security
clearance consequences:**

DOE regulations are being revised as follows:

-   Revise 10 CFR Part 710 Criteria and Procedures for Determining
    Eligibility for Access to Classified Matter or Special Nuclear
    Material to reflect the Secretary's decision of September 14, 2007,
    that requires applicants for security clearances to be drug free for
    a minimum of 12 months prior to being processed for DOE access
    authorization. Self admission of drug usage on the Standard Form 86,
    *Questionnaire for National Security Positions*, (SF-86) or as a
    result of a positive drug test will result in deferral of DOE's
    consideration of the application for clearance. As amended, the new
    rule will be an expansion of current section 710.4, which identifies
    the various conditions that result in DOE suspending the processing
    of an application for access authorization.

-   Revise the Department of Energy Acquisition Regulation Security
    Clause (48 CFR 952.204-2) to reflect the Secretary's decision of
    September 14, 2007, that requires contractors to conduct a drug test
    of individuals to be submitted for a DOE access authorization. The
    current draft of this rule requires the contractor to furnish DOE
    the results of the drug test (as well as the other required
    'pre-employment' checks). The reasonable approach would be for the
    contractor not to request a security clearance for an individual who
    has failed a drug test; however, historically, DOE procurement
    regulations do not dictate to the contractor how to adjudicate the
    results of pre-employment screening.

**C. Incumbent cleared contractor employee who tests positive for
drugs - employment consequences:**

Section 707.14(b)(1) states that when an employee who is in a Testing
Designated Position (TDP) has been tested and determined to have used an
illegal drug for the first time, the employee may be offered a
reasonable opportunity for rehabilitation, but the individual must be
placed in a non-TDP, without access authorization, throughout the period
of rehabilitation. This decision is the responsibility of the hiring
contractor. Section 707.14(b)(2) states that failure of the employee to
take the opportunity for rehabilitation can lead to disciplinary action
up to and including removal from employment under the DOE contract, in
accordance with the contractor's policies. In addition, any employee who
is determined to have used illegal drugs a second time shall in all
cases be removed from employment under the DOE contract. No changes to
this practice are anticipated.

**D. Incumbent** **cleared contractor employee who tests positive for
drugs -- security clearance consequences:**

Currently due process under 10 CFR 710 provides the individual with the
opportunity to request a hearing before a DOE Hearing Office and an
additional appellate review however, 10 CFR Part 710 is now being
revised to add a new section 710.4, "Policy" to provide that, if the
decision to grant the access authorization was based upon favorable
resolution of drug involvement and the individual signed a DOE Form
5631.9, *Drug Certification*, and there is new evidence of drug usage,
then the access authorization will be administratively terminated.
(Section 710.4 provides for limited review/appeal of administrative
terminations, rather than the full hearing and appeal process under Part
710).

**II. DOE FEDERAL EMPLOYEES:**

**A**. **An applicant for a federal employment testing designated
position at DOE who tests positive for drugs - Employment
consequences**:

External applicants (employees new to DOE) are not appointed to a TDP.
Internal applicants (current DOE employees) who are not currently
employed in a TDP are not appointed to a TDP. Those employees are
referred for counseling or rehabilitation by the employee's immediate
supervisor. The test results are also shared with the selecting official
for the TDP.

All applicants (external & internal) who have been tentatively selected
for a TDP will be tested. Applicant Testing/Pre-employment consequences
for a positive drug test:

-   An external applicant with a positive drug test will not be
    appointed to the position. An internal applicant who tests positive
    for drugs will not be appointed to the position for which he or she
    had been tentatively selected.

-   DOE Personnel Security and the employee's immediate supervisor will
    be notified of the positive test results.

-   The immediate supervisor, with the assistance and/or guidance from
    the Drug Program Coordinator (DPC), Employee Relations, Employee
    Assistance Program (EAP), and in some cases Security, shall take
    steps to: refer the employee for counseling, execute a Drug Use
    Acknowledgement form, initiate follow up testing, and review a range
    of disciplinary actions.

-   If the employee is currently in a TDP, the supervisor will remove
    the employee from his/her sensitive duties, request a temporary
    removal of the employee's name from the random testing pool while
    the employee is participating in a treatment program and when
    appropriate, return the employee to sensitive duties.

**B. DOE Federal candidates for access authorization -- security
clearance consequences:**

If HR makes a favorable suitability determination in spite of evidence
of drug usage, the case is referred to the personnel security program
for resolution. The individual has the opportunity under 10 CFR Part 710
to request a hearing before a Hearing Officer assigned by the DOE Office
of Hearings and Appeals and, in the event of an unfavorable ruling, to
seek appellate review.

In accordance with the Secretary's decision of September 14, 2007, 10
CFR Part 710 is undergoing revision to add language to provide that
applicants for security clearances must be drug free for a minimum of 12
months prior to being processed for DOE access authorization. Self
admission of drug usage on the SF-86 or as a result of a positive drug
test will result in deferral of the application for clearance. This will
be an expansion of 10 CFR 710.4, "Policy," which states the various
conditions that result in DOE suspending the processing of an
application for access authorization. Additionally any applicant for a
security clearance who tests positive will not be able to reapply for
security clearance for 12 months.

**C. Incumbent DOE Federal employee in a TDP with a security clearance
who tests positive for drugs - Employment consequences:**

Upon notification of a positive test by the Medical Review Officer
(MRO), the Department through the Drug Program Coordinator will notify
the supervisor. The supervisor, with guidance from the EAP and the
servicing personnel office, shall remove the employee from sensitive
duties, and consider a range of disciplinary actions. At the appropriate
time the supervisor will initiate a Drug Use Acknowledgement form and
the employee then will start a follow-up testing program. If any time
doing the follow-up program the supervisor is notified by the MRO that
the employee has again tested positive, the supervisor will consider
progressive disciplinary actions up to and including removal from
federal service. All disciplinary actions should be coordinated with the
appropriate human resources office.

**D. Incumbent DOE Federal employee who tests positive for drugs -
security clearance consequences (assumes that a favorable suitability
determination has been made by HR)**:

Currently due process under 10 CFR 710 provides the individual with the
opportunity to request a hearing before a DOE Hearing Officer and a
further appellate review.

10 CFR 710 is undergoing revision to add a new sub-section in 710.4,
"Policy," to provide that if the initial decision to grant the access
authorization was based upon favorable resolution of drug involvement
and the individual signed a DOE F 5631.9, "Drug Certification," and
there is new substantiated evidence of drug usage, the access
authorization will be administratively terminated. (10 CFR 710.4 allows
for limited review/appeal of administrative terminations, rather than
the full hearing and appeal process).