Employee Drug Testing Under Far Section 223.7500
By: Gregory Fordham
Introduction
The lines have been drawn. Once again the world is at war --a war against drugs. In the American theater, the fighting has grown desperate and the conflict rages across a broad frontier. In order to gain an upper hand, commanding generals have launched anew offensive. At the same time, they have deployed an experimental new weapon for front line use, employee drug testing.
Neither side can yet claim victory. Each has experienced glorious victories, as well as, demoralizing defeats. So far the enemy has proved to be highly resilient. Armed with the very rights and privileges on which democratic societies are formed, opponents of drug testing have been able to frustrate many of the maneuvers orchestrated by conflict commanders. Consequently, a considerable shadow now colors the future promise of this new weapon in the war against drugs.
This article examines the Department of Defense (DOD) Drug-Free Workforce Rule. It pinpoints this most controversial government intrusion in relation to the recent flurry of bureaucratic meddling and it provides contractors with ideas on what they should consider when developing their drug testing programs.
IDENTIFYING THE SOURCE FOR MANDATED DRUG TESTING
While many companies have already implemented a drug-testing program for their applicants and/or employees, the subject of drug testing is relatively new for the government. The three governmental initiatives directed at illegal drug use and that are perhaps best known to federal contractors are:
Executive Order 12564 of September 15, 1986 requiring drug testing of federal government employees in order to achieve a drug-free workplace in the nation's largest employer
The Department of Defense's (DOD) Drug-Free Workforce Rule, effective October 31, 1988, that requires drug testing of contractor employees in "sensitive positions"; and2
The Drug-Free Workplace Act governing federal contractors and grant recipients that became law November 18, 1988 as part of Omnibus Anti-Drug Legislation, P.L. 100-690.3
Other than their subject matter these three mandates have nothing in common. They were developed as separate actions by different governmental bodies and they do not share a common initiative.
Executive Order 12564 was developed by the Reagan Administration well in advance of the Drug-Free Workplace Act (DFWPA) and the DOD Drug-Free Workforce Rule. In contrast, the DOD Drug-Free Workforce Rule was developed by the Department of Defense at about the same time as Congressmen Walker (R-Pa) and Brooks (D-Tex) were introducing H.R. 4467 and H.R. 4719 to congress.4 These bills applied to all federal contractors and grant recipients and required them to provide a drug-free workplace. Although developed at a later date, neither the DOD Rule nor the DFWPA were developed as a direct result of Executive Order 12564 or any other statutory provision. If anything, the concurrent development of these latter two measures signals only the eagerness of their respective advocates to seize on a popular issue and garner headlines.
Unlike the DOD Drug-Free Workforce Rule or Executive Order 12564, the DFWPA does not require drug testing. Even though the DFWPA requires contractors and grantees to provide a site for the performance of work done in connection with a specific contract at which employees of the contractor or grantee are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance, the Act does not require drug testing in order to achieve a drug-free workplace. Instead, the DFWPA relies on a contractor's or grantee's certification that they have, in fact, made a "good faith" effort to provide a drug-free workplace.
When drafting DFWPA, the requirement for drug testing was considered. However, the Act's designers recognized the complex constitutional issues surrounding this feature. Consequently, they chose to avoid any provision for drug testing at this time. In submitting H.R. 4719 to Congress the House Committee on Government Operations reiterated that,
Mandatory drug testing and other employee "search" activities are neither required nor approved for purposes of certifying that an employer will provide a drug-free workplace, or has made a good- faith effort to do so.5 6
Although Executive Order 12564 requires drug testing, this governmental initiative does not apply to federal contractors.7 Moreover, the drug testing provisions of this initiative apply only to employees of federal agencies occupying sensitive positions.8
Even though Executive Order 12564 and its drug testing procedures were not directed at contractors, rumors circulated that some Executive Agencies, including the Department of Defense, were nonetheless imposing those requirements on federal contractors. Even today, Agency drug programs such as those adopted by the U.S. Department of Transportation (DOT) and described in regulations that were published in final form in late 1988, partly as a result of Executive Order 12564, are confusing to federal contractors.9
For example, the DOT regulations address illegal drug use within industries regulated by the Department and describe the specific procedures to be adopted for transportation workplace drug testing programs. The Department's final regulations even use the term contractor when describing the applicability of the procedures for transportation workplace drug testing programs. However, in the context of these regulations the term contractor refers broadly to contractors of transportation employers and not narrowly to businesses contracting with the Department of Transportation. In any event, these published regulations have confused many transportation employers, such as aerospace firms, that also act as contractors to the federal government and need also to comply with the DFWPA or the DOD Drug-Free Workforce Rule.l0
With the passage of the DFWPA and the issuing of the Drug-Free Workforce Rule, arguments abound for discouraging any notion by contracting officers that Executive Order 12564 and its procedural guidelines should apply to federal contractors. Specifically, the NIDA Guidelines that were developed in response to Executive Order 12564 are self-eliminating and, "do not apply when drug testing is conducted under legal authority other than Executive Order 12564". 11
Contractors operating under the DFWPA can claim that any form of drug testing was considered inappropriate by Congress and that the absolute silence in the Act is legal authority guiding the activities of contractors and grantees with regard to drug testing. Defense contractors covered by the Drug-Free Workforce Rule, on the other hand, can highlight the Rule's silence on any particular form of drug testing technology or procedure. Also, they can specifically point to paragraph (b) of the clause, DFARS [Defense Federal Acquisition Regulation Supplement] 52.223-7500, which encourages contractors to, "implement alternative procedures comparable to the criteria in paragraph (c) below that are designed to achieve the objective of this clause". Thereby, a contractor avoids the strict requirements of the guidelines for urine testing by NIDA [National Institute for Drug Abuse] certified labs.
Regardless of what might be agreed to among parties to a contract, it is clear that the only governmental initiative that expressly imposes a drug testing requirement on federal contractors is the DOD Drug-Free Workforce Rule.
The DOD Drug-Free Workforce Rule is effective for contracts entered in to after October 31, 1988. The Rule is described in the DFARS at section 23.7500 and its associated contract clause, 52.223- 7500. The purpose of the Drug-Free Workforce Rule is to require Defense contractors to maintain a program for achieving a drug- free workforce. The Rule is not intended to promote drug testing for the purposes of law enforcement or drug interdiction. Rather, it is designed to promote a safe and productive workplace with efficient operations by maintaining a drug free workforce. Drug testing is but one tool used to accomplish that objective.
The term workforce versus workplace has special significance. It implies an employer's concern for employee drug abuse both on and off the job. This concept is repeatedly reiterated in the Rule at DFARS section 23.7503, General.
Program Requirements
The interim Rule requires that four elements appear contractor's drug awareness program.12 Those elements are:
The interim Rule specifically requires that contractors must have a program for testing employees in "sensitive positions" for illegal drug use.13 "Sensitive positions" include:
Employees granted access to classified information; or
Positions involving National Security;
Public health;
Public safety; or
Other functions requiring a high degree of trust or confidence.
In addition to the requirement for testing employees in sensitive positions, contractors may have a program for testing employees for illegal drugs in other situations such as:
- When there is reasonable suspicion that an employee uses illegal drugs;
- When an employee has been involved in an accident or unsafe practice;
- As part of or as follow-up to counseling or rehabilitation; and
As part of a voluntary employee drug testing program.14
Also, contractors may have a program for testing applicants employment for illegal drugs. 15
Although the interim Rule encourages contractors to implement any alternative measures that they feel are best to accomplish the program's overall objective to maintain a drug-free workforce, there is no alternative to employee drug testing. A contractor's program must contain a provision for employee drug testing. Even if a contractor chooses to test its applicants for illegal drugs, this is not considered an acceptable alternative to testing employees for the purposes of this Rule.16 Thus, the contractor's program must test employees in sensitive positions for illegal drugs.
The interim Rule does not expressly require random testing nor a particular testing technology. These decisions are clearly left to the contractor in deciding how to achieve the objectives of maintaining a drug-free workforce. The Department of Defense has stated, however that the Rule intended for contractors to use random testing.l7
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