DATE: May 6, 2013

TO: Federal Executive Branch Agencies

FROM: Interagency Coordinating Group Executive Committee

SUBJECT: Updated Guidelines for Selection of Testing Designated Positions

2013 Guidance for Selection of Testing Designated Positions (TDPs)

I. Purpose

Effective immediately, this guidance supersedes, but does not fundamentally change, the 

previous Testing Designated Position (TDP) guidance initially issued on August 2, 1999 

and updated on April 5, 2010. This guidance document will serve as the primary agency 

reference for selecting and/or reviewing positions designated for random testing under the 

Federal Drug- Free Workplace Program established pursuant to Executive Order No. 

12564.

A. Selection Categories

Note: Agency requests for categorical inclusions of TDPs will not be considered. 

TDP submissions must provide specific position 

title(s)/classification(s)/justifications which includes a concurrence memo from their 

agency OGC.

The 1999 guidance consolidated the results of court decisions and established specific 

categories of TDPs. In January 2010, the Department of Justice reviewed legal activity 

since the issuance of the 1999 guidance and concluded that there were no decisions 

altering the following TDP categories:

• Presumptive Positions: Must be included in all plans. Agencies desiring to

exclude any of these positions must submit a written justification for doing so. 

Exclusions require the prior written approval of the Interagency Coordination 

Group Executive Committee (ICGEC).

• Preferred Positions: Should, but may not be included in all plans. Agencies 

desiring to exclude any of positions must provide a clear justification for doing 

so.

• Discretionary Positions: Agency specific. Agencies desiring to include such 

positions must present a clear justification for doing so, including a detailed 

description/statement of the immediate risks posed by incumbents using illegal 

drugs.

• Disfavored Positions: May not be included in any plan.
B. Review Process

The 1999 TDP Guidance established the role of the Office of National Drug Control Policy

in assuring appropriate consistency among the Executive Branch agencies implementing

Executive Order 12564 and to convene the Interagency Coordinating Group Executive

Committee (consisting of representatives of the Office of National Drug Control Policy,

Department of Health and Human Services, Department of Justice and Office of

Personnel Management) to provide concurrence reviews on agencies seeking to 

implementing substantive changes in their agency plans or TDP lists. These roles and

processes remain in place.

Agencies are encouraged to seek informal, preliminary consultation on proposed

substantive changes and submit their draft proposals to: The ICG Executive Committee,

c/o Hyden S. Shen, Esq., Policy Oversight Lead, Federal Drug Free Workplace Program,

Department of Health and Human Services, Substance Abuse and Mental Health

Services Administration (SAMHSA), Division of Workplace Programs, 5600 Fishers Lane, 

Rockville, Maryland, 208571

. Telephone: (240) 276-2600. E-Mail:

Hyden.Shen@samhsa.hhs.gov

Agency proposals should consist of the following information:

• A detailed statement describing the change(s) sought in the plan and the

proposed language.

• Job descriptions or a summary of the duties performed by positions proposed

for inclusion in the random testing pool.

• Justification for inclusion of each position (In some cases, group justifications 

may suffice for positions that share common duties and fall under the same

TDP category.)

• Supporting opinion from agency General Counsel

II. The Legal Framework

Based upon the prior agency program litigation, the courts have been able to establish

"limits" on the TDP justifications for the presumptive, preferred, discretionary and

disfavored positions noted below. However, given unique agency missions, a substantial

gray area continues to exist within the TDP categories.

Agencies are advised to seek agency counsel review prior to proposing changes or

additions to their TDP lists. The most significant and instructive cases in this field continues 

to be the early pronouncements within United States Supreme Court in Skinner v. Railway 

Labor Executives' Assn., 489 U.S. 602 (1989), and National Treasury Employees Union v. 

Von Raab, 489 U.S. 656 (1989). Additionally, the Supreme Court has upheld the 

constitutionality of drug testing programs in other contexts, such as interscholastic athletics. 

See Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) and "students in

 

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SAMHSA Address Updated: January 2017
competitive extra-curricula activities," Board of Education Independent School District No.

92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002).

A. Presumptive Testing Designated Positions

In light of the well established case law and clear public interest in testing certain

categories of positions, the positions set forth below have been approved for inclusion

in agency testing plans without the prior approval of the ICG Executive Committee. In

order to improve consistency, it is essential that individual agencies include all positions

in these categories in their plans, unless a clear and compelling reason can be provided

for not doing so. Indeed, almost all agencies already test these positions.

Since courts have consistently found that testing of these safety-sensitive positions is

justified, agencies need not submit for consultative review, their plan to include these

positions as TDPs. However, an information copy of implemented changes should be

forwarded to the ICG Executive Committee. If an agency head is of the opinion, that

unique agency circumstances warrant the exclusion of all or some of the positions in

these categories, these circumstances should be presented in writing to the ICG 

Executive Committee for consultative review. The positions that must be included in

your agency plan are as follows:

1. Employees Who Carry Firearms

NTEU v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 1393-94 (1989). This category was 

narrowed from "employees authorized to carry firearms" in order to distinguish various 

investigators and guards who do not carry a firearm on a daily basis, but are merely 

authorized to carry firearms. Employees in the latter category should be placed in the 

appropriate preferred TDP category. However, employees who actually carry firearms on a 

daily or regular basis are included in this presumptive category and should be included.

2. Motor Vehicle Operators Carrying Passengers

NTEU v. Yeutter, 918 F.2d 968, 972 (D.C. Cir. 1990). AFGE v. Skinner, 885 F.2d 884, 

889 n.8 (D.C. Cir. 1989), cert. denied, 495 U.S. 923 (1990). This category also includes 

operators of motor vehicles weighing more than 26,001 pounds and operators of motor 

vehicles transporting hazardous materials. Intern. Broth. of Teamsters v. Department of 

Transportation, 932 F.2d 1292 (9th Cir. 1991). Note: Department of Transportation 

regulations implementing the Omnibus Transportation Employee Testing Act of 1991 

require random testing for drugs and alcohol of Federal employees who operate vehicles 

that require a commercial driver's license. A commercial license is required for vehicle 

operators who: (1) carry 16 or more passengers, (2) transport hazardous materials, or (3) 

operate vehicles weighing 26,001 pounds or more.

3. Aviation Flight Crew Members and Air Traffic Controllers

Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990). AFGE v. Skinner, 885 F.2d at 889 n.8.
4. Railroad Operating Crews

Skinner v. RLEA, 489 U.S. 602, 109 S. Ct. 1402 (1989). RLEA v. Skinner, 934 F.2d

1096 (9th Cir. 1991). AFGE v. Skinner, 885 F.2d at 889 n.8.

B. Preferred Testing Designated Positions

The well established law and clear public interest applicable to drug testing make it

evident that the categories set out under this section represents strong government

interests for drug testing and should almost always need established judicial standards.

However, inclusion of the following positions as TDPs is not presumptive. To ensure

reasonable uniformity, agencies will be required to present for ICGEC consultative

review, agency-specific justifications for testing these positions. Agencies choosing to

exclude one or more positions as a TDP will be required to justify their decision to the ICG 

Executive Committee.

1. Certain Health and Safety Positions

The first major category includes certain health and safety responsibilities that could

cause immediate, substantial physical injury if carried out under the influence of drugs,

usually involving a potentially dangerous instrument or machine. These positions are:

a. Employees authorized to carry firearms

NTEU v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 1393-94 (1989). This category was 

changed from "employees having access to firearms". In many cases, there are guards or 

security personnel who do not regularly carry a firearm, but are authorized to carry one in 

some circumstances, e.g. emergencies. The rationale for including these positions as TDPs 

is the same as employees with a security clearance who see classified documents only 

rarely--granting security clearances in advance proved flexibility and ensures employees 

can be given access to classified material as soon as the need arises. See Harmon v. 

Thornburgh, 878 F.2d 484, 492 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056 (1990).

b. Railroad Employees Engaged in Safety Sensitive Tasks

This includes persons engaged in handling train movement orders, safety inspectors

and those engaged in maintenance and repair of signal systems. Skinner v. RLEA, 489

U.S. 602, 109 S. Ct. 1402 (1989). RLEA v. Skinner, 934 F.2d 1096 (9th Cir. 1991).

AFGE v. Skinner, 885 F.2d at 889 n.8.

c. Aviation Personnel

This includes flight attendants, flight instructors, ground instructors, flight testing personnel, 

aircraft dispatchers, maintenance personnel, aviation security and screening personnel, 

and aircraft safety inspectors. Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990). AFGE v.

Skinner, 885 F.2d at 889 n.8. In 1992, two federal district courts in California considered

challenges to Air Force and Navy TDPs respectively. In AFGE v. Wilson, 5-89-1274 (E.D. 
Cal. Aug. 17, 1992), the Air Force had included an employee who made tools used by

aircraft mechanics to maintain and repair their aircraft. The court held that the danger of

a defective tool causing a crash was too remote to support random testing. Only Air

Force employees with direct aircraft maintenance responsibilities were approved for

random testing. InAFGE v. Cheney, C-89-4443 (N.D. Cal. Aug. 14, 1992) a different

court considered several categories of employees who performed maintenance on Navy

ships, submarines and planes. Those approved as TDPs were able to show a nexus 

between the work performed and a "compelling government interest in safety," such

that small errors or momentary lapses in judgment could have "catastrophic

consequences for crew members". This care highlights the principle that agencies may

randomly test employees with direct and critical responsibilities for maintenance, but

not those in general support roles.

2. Presidential Appointees Requiring Senate Confirmation (PAS)

The second major preferred category involves presidential appointees requiring Senate

confirmation (PAS). While including PAS positions as TDPs is strongly preferred, an

agency head may determine that it is impractical for part-time presidential appointees

who sit on commissions or boards which meet only three or four times to be included in

the TDP. In this instance, the PAS may potentially qualify for an exclusion.

3. Front Line Law Enforcement Personnel

The third major preferred category is front line law enforcement personnel with close

proximity to criminals, drugs, or drug traffickers. These positions include guards and law

enforcement personnel who have access to firearms (but do not carry weapons or

otherwise meet the standards for a presumptive TDP) and those directly involved in

drug interdiction duties. Von Raab, 109 S. Ct. at 1393-94; Guiney v. Roache, 873 F.2d

1557 (1st Cir.), cert. denied, 110 S. Ct. 404 (1989).

4. Drug Rehabilitation Employees

The fourth major preferred category is drug rehabilitation or equivalent employee

assistance duties that are so inimical to illegal drug use that such employees can expect

inquiries into their fitness. These positions include direct service staff of alcohol and drug

abuse treatment centers. NFFE v. Cheney, 884 F.2d 603, 614 (D.C. Cir. 1989), cert.

denied, 493 U.S. 1056 (1990). Although, some agencies believed that all employees

associated with the drug program should be included in the random testing pool, the

courts have taken a narrower view. InNFFE v. Cheney, the court approved drug 

counselors with direct client contact as TDPs; however, it refused to approve either drug

laboratory testing personnel or to those employees in the biochemical chain of custody.

Regarding the latter two categories, the court found an insufficient nexus between a drugrelated lapse and any irreparable harm. Based on the holdings of this case, only drug

program employees who have direct client contact should be included asTDPs. NOTE:

Unless, supervisors of drug counselors meet this test, they should not be included as
TDPs.Additionally, computer employees who help select personnel for random tests do not

qualify as TDPs. The court was not persuaded that the "credibility" or "integrity" of the drug

testing program justified random testing for every employee associated with drug testing.

5. Personnel Having Access to "Truly Sensitive Information"

The fifth major preferred category is personnel having access to "truly sensitive

information". For example, individuals with access to national security material that a

"reasonable person" would consider damaging to national interests if compromised. Von

Raab, 109 S. Ct. at 1396. Specifically, these positions include:

a. Top Secret and Higher Clearances

Harmon v. Thornburgh, 878 F.2d 484, 492 (D.C. Cir. 1989), cert. denied, 110 S. Ct.

865 (1990). AFGE Local1533 v. Cheney, No. 90-15834 (9th Cir. Sept. 11, 1991)

b. Secret Clearances

Hartness v. Bush, 919 F.2d 170, 173 (D.C. Cir. 1990), cert. denied, 59 USLW 3865 

(U.S. 1991).

C. Discretionary Designations

In addition to the categories of positions identified for presumptive and preferred inclusion in

agency plans, there are other agency specific sensitive positions which may warrant

designation for testing. The presumptive and preferred testing categories are not

exhaustive ofTDPs supported by case law. For example, courts have supported testing for:

confidential security clearances holders, NTEU V.Hallet, No. 86-3522 (E.D. LA. Feb 7,

1991); health care professionals responsible for direct patient care, and firefighters, AFGE

v. Derwinski, 777 F. Supp. 1493 (N.D. Cal. 1991). Other federal district courts also have

upheld random testing for medical doctors (except for doctors performing research or

administrative duties), nurses, nursing assistants, pharmacists, and medical technicians

because they were involved in direct patient care.

Given the unique agency missions, there are a number of other, non-court tested TDPs

that may be appropriate for inclusion within agency plans. To the extent that agencies

have identified potential TDP positions, they will be required to submit Appendix A of its

plan with supporting documentation to the ICG Executive Committee for consultative

review. The agency's plan must contain a statement indicating a clear nexus between

the employee's duties and the feared harm to others for each TDP.

D. Specifically Disfavored Testing Designated Positions

Itis possible to identify positions which uniformly have been found by the courts not to

warrant random testing. If an agency has TDPs based solely on the criteria below,

exceptional justifications will be required to be submitted to the ICG Executive

Committee for consultative review. These positions are:
1. Positions designated based upon the need to foster public trust or 

generalized requirements for integrity, honesty, or responsibility. NTEU v. Yeutter, 918 

F.2d 968, 972 (D.C. Cir. 1990) and Chandler v. Miller, 502 U.S. 305 (1997) in which 

random testing cannot be utilized merely for "symbolic" testing. The Chandler case involved 

candidates for public office.

2. Positions designated based upon access to sensitive information not

meeting the "truly sensitive" criteria, e.g. personnel files, budget and financial

information, and grand jury information also is inadequate. Harmon v. Thornburgh, 878

F.2d 484, 492 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 865 (1990). Many questions

were raised about including inspector general employees because of their access to

sensitive information and budget or financial employees because of their influence on

large sums of money. Under current case law, neither group qualifies as a TDP. The 

rationale for excluding inspector general employees is contained in the Harmon case. In 

Harmon, the court approved employees with top secret clearances as TDPs because of

their access to "truly sensitive" information, but it refused to approve as TDPs federal

prosecutors or employees with access to secret grand jury proceedings. The court

stated that "truly sensitive" does not include all information which is confidential or

closed to public view. The rationale for excluding budget and financial employees is 

found in AFGE v. Carazoes, 721 F. Supp. 1361 (D.D.C. 1989), where the court refused

to approve as TDPs a group of computer employees involved with billions of dollars of

government resources who might be subjected to bribery, fraud, waste or

mismanagement. The court concluded that program information which affects large

sums of money does not necessarily mean the information is "truly sensitive". The

clearest examples of "truly sensitive" remain information requiring a top secret

clearance, where by definition, national security would be seriously damaged by an

unauthorized disclosure.