TO: Federal Executive Branch Agencies 

FROM: Interagency Coordinating Group Executive Committee 

SUBJECT: Updated Guidelines for Selection of Testing Designated Positions 

2010 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 issued on 

August 2, 1999. 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 

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. 

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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, 1 Choke Cherry Road, Room 2-

1029, Rockville, Maryland, 20857. Telephone: (240) 276-2600. 

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 

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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 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 

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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. 

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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. In AFGE 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 

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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. In NFFE 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 drug-related lapse and any irreparable 

harm. Based on the holdings of this case, only drug program employees 

who have direct client contact should be included as TDPs. 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: 

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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 Local 1533 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 of TDPs 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 

It is 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. 

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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. 

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