From: orville%weyrich@tnet.com (Orville R. Weyrich)
Subject: Re: Drug testing by U.S. government contractors
Followup-To: misc.jobs.misc
Reply-To: tnet.com!weyrich!orville
Organization: Weyrich Computer Consulting
Distribution: usa
Date: Fri, 10 Apr 92 12:36:50 GMT

I HAVE ADDED A CROSS-POST TO MISC.LEGAL WITH FOLLOWUPS TO MISC.JOBS.MISC
because I would be interested in how accurate my legal analysis of the
Government requirements are.

Please restrict the present thread to what current law requires and
permits, rather allowing it to degenerate into a flame-fest regarding
whther the current laws are too strong or too weak, etc. I am sure that
all of us (except the very young and the very impressionable :-) have
decided for ourselves where we stand with regards to our own personal
use/abuse/abstinence and the relative merits of the War on Drugs (WOD)
and the Right to Privacy (RTP).

In article <1992Apr8.155604.16764@erg.sri.com> zwicky@erg.sri.com (Elizabeth Zwicky) writes:
>In article <1992Apr7.012849.6297@sed.stel.com> jon@sed.stel.com (Jon Radel) writes:
>>A recent e-mail note from somebody responding to an offer I recently
>>posted to misc.jobs.offered, in which I mentioned that pre-employment
>>drug testing was mandatory, leads me to believe that at least some
>>people who feel strongly about the matter are unaware that contractors
>>working for the U.S. government don't necessarily have a choice in the
>>matter.  
>
>The government requires contractors to take action to curb drug use
>within the company. Drug testing is not the only way that can be done
>to the government's satisfaction; putting into place a system which
>educates all employees about how to detect drug and alcohol problems,
>and a program to deal with them when detected is perfectly acceptable.
>Trust me, I work for a government contractor. For that matter, drug
>tests are not a routine part of the security clearance process. Drug
>tests are a quick, off-the-shelf way to meet the requirement, but a
>company that cares more about work quality than being able to check
>off boxes on government requirements is perfectly able to use methods
>that are less invasive and more effective. 

Very well put.

For the record, I will type in below the contract requirements from a
typical government R.F.P. So far as I am aware, it is pretty standard.
Anyone else have experience to the contrary? 

This is rather long, but one longish post of the facts seems to be preferable
to another round of the WOD/RTP flame-fest.

As far as I can tell from reading the following, all that is required
is that:

	(1) A policy EXIST that states that illegal drug use etc. is not
	permitted in the WORKPLACE. It does not say anything about use
	outside the workplace, so I assume that unless it were demonstrated
	that an employee was under the influence of the drug while at the
	workplace, the regulations would not apply to off-the job drug usage. 
	The presence of drug METABOLITES do not necessarily indicate that an 
	individual is under the influence.

	(2) That the employee be notified of the policy.

	(3) That the employee be "educated".

	(4) That certain reporting requirements are met in the event that
	an employee is CONVICTED of a violation of a criminal drug statute
	OCCURRING IN THE WORKPLACE. It does not say that the employer is
	responsible for playing Gestapo, Judge, or Jury. Presumably, that
	is the responsibility of the DEA and the Federal Court system.

	(5) That the employee be "rehabilitated" if CONVICTED. In some cases
	the employee could be terminated if convicted, but [as I recall]
	the Rehabilitation Act of 1973, as amended is strongly biased toward 
	forcing the employer to bear the costs of rehabilitation, rather than 
	just terminating the employee.

------------------------------ begin quote -----------------------------

DRUG-FREE WORKPLACE. The Drug-Free Workplace Act of 1988 (Public Law
100-690, Title V, Subtitle D) requires that all grantees receiving grants
from any Federal agency certify to that agency that they will maintain a
drug-free workplace. DHHS regulations implementing the Act are provided
in 45 CFR 76, "Government-wide Debarrment and Suspension (Nonprocurement)
and Government-wide Requirements for Drug-Free Workplace (Grants)."

Accordingly, before a grant award can be made, the applicant organization
must make the certification set forth below (Appendix C of the DHHS 
regulations). The certification is a material representation of fact upon
which reliance will be placed by the PHS awarding component.

False certifications or violation of the certification shall be grounds for 
suspension of payments, suspension or termination of grants, or Government-
wide suspension or debarment.

The applicant organization certifies "that it will or will continue to
provide a drug-free workplace by:

	"(a) Publishing a statement notifying employees that unlawful
	manufacture, distribution, dispensing, possession or use of a
	controlled substance is prohibited in the grantee's workplace
	and specifying the actions that will be taken against employees
	for violation of such prohibition;

	"(b) Establishing an ongoing drug-free awareness program to inform
	employees about:

		"(1) The dangers of drug abuse in the workplace;

		"(2) The grantee's policy of maintaining a drug-free
		workplace;

		"(3) Any available drug counseling, rehabilitation, and
		employee assistance programs; and

		"(4) The penalties that may be imposed upon employees for
		drug abuse violations occurring in the workplace;

	"(c) Making it a requirement that each employee to be engaged in
	the performance of the grant be given a copy of the statement required
	by paragraph (a).

	"(d) Notifying the employee in the statement required by paragraph
	(a) that, as a condition of employment under the grant, the employee
	will;

		"(1) Abide by the terms of the statement; and

		"(2) Notify the employer in writing of his or her conviction
		for a violation of a criminal drug statute occurring in the
		workplace no later than five calendar days after such
		conviction.

	"(e) Notifying the agency in writing within 10 calendar days after
	receiving notice under subparagraph (d)(2) from an employee or
	otherwise receiving actual notice of such conviction. Employers of
	convicted employees must provide notice, including position title,
	to every grant officer or other designee on whose grant activity
	the convicted employee was working, unless the Federal agency has
	designated a central point for the receipt of such notices. Notices
	shall include the identification number(s) of each affected grant;

	"(f) Taking one of the following actions, within 30 calendar days
	of receiving notice under subparagraph (d)(2), with respect to any 
	employee who is so convicted;

		"(1) Taking appropriate personnel action against such an
		employee, up to and including termination, consistent with
		the requirements of the Rehabilitation Act of 1973, as amended; 		or

		"(2) Requiring such employee to participate satisfactorily
		in a drug abuse assistance or rehabilitation program
		approved for such purposes by a Federal, State, or local
		health, law enforcement, or any other appropriate agency;

	"(g) Making a good faith effort to continue to maintain a drug-free
	workplace through implementation of paragraphs (a), (b), (c), (d),
	(e), and (f)."

For purposes of paragraph (e) regarding agency notification of criminal drug
convictions, the DHHS has designated the following central point for
receipt of such notices:

	. . . . . . .

------------------------------ end quote ----------------------------

orville

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Orville R. Weyrich, Jr.                           Weyrich Computer Consulting
Certified Data Processor                         POB 5782, Scottsdale, AZ 85261
Certified Systems Professional                        Voice: (602) 391-0821
Internet: orville%weyrich@tnet.com                    Fax:   (602) 661-0660
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