Employee Drug Testing Under Far Section 223.7500

(page 2)

Logically, when utilizing a testing technology that has a relatively short testing window in relation
to the period in question, random testing would be the only feasible method for assessing employee substance use. On the other hand, the presence of an extended notification requirement can undermine the reliability of the conclusions that can be drawn from test results in many program designs. Thus, in some situations the presence of random testing may provide only a bitter flavor with no actual benefit.

PROGRAM APPLICABILITY

As prescribed in DFARS section 23.7504, the interim Rule applies to all defense prime contracts, regardless of value, performed within the United States, its territories and possessions that involve access to classified information. The interim Rule does not apply to that part of a defense prime contract performed outside the United States, its territories and possessions unless otherwise determined by the contracting officer. In addition, the interim Rule may apply to any other defense prime contract, except for commercial or commercial-type products, when the contracting officer determines that inclusion of the clause is necessary for reasons of national security or for purposes of protecting the health or safety of those using or affected by the product of or performance of the contract.18

Obviously, the potential for including the Rule in a defense contract is great. In virtually any situation the contracting officer can justify the inclusion of the Drug-Free Workforce clause in a contract. Most obvious, though, is that the rule is not expressly limited to employees of a particular contract but rather all contractor employees meeting the definition of an "employee in a sensitive position". However, the DOD has explained that the Rule applies only to employees working on a particular contract.19

TESTING PROGRAM SUBSTANCES

Under the interim Rule, a contractor's program may be limited to the substances proscribed by section 2.1 of Subpart B of the Mandatory Guidelines for Federal Workplace Drug Testing Programs, also known as the NIDA [National Institute for Drug Abuse] Guidelines.W These guidelines require that:

• Employees and applicants must be tested at least for marijuana and cocaine,

• Employees and applicants may also amphetamines, and phencyclidine; and be tested for opiates,

• When testing for cause, employees may be tested for any drug listed in Schedules I or II of the Controlled Substances Act, 21 U.S.C. Section 812

Clearly, under the NIDA Guidelines the only substances which must be tested for are marijuana and cocaine. Testing for any other substance is totally discretionary. Thus, as currently arranged in the interim Rule, defense contractors are not required to test for any substances other than marijuana and cocaine. Also, the fact that testing may be limited to marijuana and cocaine implies that the program must at least test for those substances. Thus, even if the contractor decides to test for many different substances, it must still test for marijuana and cocaine.

TESTING PROGRAM EXEMPTIONS

Under the interim Rule, the requirement to perform drug testing does not apply to the extent that it is inconsistent with:

• State or local law; or
• An existing collective bargaining agreement.21

Several State and local jurisdictions have laws specifically directed at employee or applicant drug testing. Furthermore, many states are now reacting to the issue of drug testing in ways that would counteract or limit the application of the DOD Rule. The states and local jurisdictions known to currently have statutes that are specifically directed at drug testing are Connecticut, Iowa, Louisiana, Maine, Minnesota, Montana, Nebraska, Rhode Island, Utah, Vermont, and San Francisco.

Although the interim Rule provides for an exemption for state or local law, this may have originated solely from necessity. The interim Rule lacks sufficient status to supersede state or local law. The final Rule, however, will have full force and effect of federal law and, therefore, could supersede state or local law for the same issue. A revision to the final Rule to exclude the exemption for state or local law is expected.22

Also, the DOD has stated that the issue for contractors and their unions is not whether they should test but, rather, who to test, when to test, and how to test. According to the DOD, the decision about testing has already been made and contractors must test for illegal drug use by employees in sensitive positions.23

DEVELOPING A DRUG TESTING PROGRAM

When the time finally arrives to begin constructing a drug testing program there are several steps that contractors should follow.

IDENTIFY THE PROGRAM PURPOSE

Naturally, a defense contractor subject to the Rule wants to comply with the regulations and its contractual requirements. However, the Rule provides considerable latitude in achieving the program objective and in implementing the regulatory requirements. Consequently, a well worded and concise purpose for the program will dramatically facilitate the rest of the program's development.

IDENTIFY THE PROGRAM SCOPE

The mere inclusion of the Drug-Free Workforce clause into a contract does not necessarily trigger employee drug testing. A contracting officer's zeal to include the clause may exceed the need to perform drug testing while still imposing a contractor's need to provide a drug-free workforce. After all, there is considerable latitude provided to the contractor when interpreting the definition of employees in sensitive positions.

Obviously, the determination of positions requiring a high degree of trust or confidence is a subjective appraisal. Also, positions affecting public safety or health may be equally clouded for all but nuclear reactor operators and nerve gas manufacturers. Even the interpretation of employees "granted access to classified information" may provide ample "wiggle" room for the contractor to exclude some employees having security clearances. Furthermore, the DOD's explanation that only employees of a particular contract are covered by the Rule further brings to question its applicability to employees having security clearances working in an indirect capacity.

Therefore, in determining program scope, contractors must decide who are employees in sensitive positions? Will cause, reasonable suspicion, rehabilitated employees or job applicants be included in the testing population? Will the discovery of drugs on an employee's person necessitate searches of lockers, lunch pails, or the parking lot? In essence, where does testing begin and where do its ramifications end? Of course, a carefully worded purpose will help to answer these kinds of questions.

Finally, should the program extend to subcontracts? Under the interim Rule, the program applies solely to prime contracts and the prime's employees. The final, however, Rule may extend the coverage to subcontractors.24

IDENTIFY THE SUBSTANCES TO BE TESTED

The interim Rule requires testing for marijuana and cocaine only. Should the contractor's program test only for marijuana and cocaine or should other illegal substances also be included? In addition, should the test include prescription medications, alcohol, or even nicotine from cigarette smoking?

IDENTIFY THE TESTING TECHNOLOGV TO BE EMPLOYED

There are many technologies that may be employed for conducting drug testing. Each method uses body fluids or other substances in performing its examination. Breath, saliva, blood, urine, and hair testing are perhaps the best known techniques currently available. Each has its own advantages and disadvantages. For example, blood testing is considered to be the premiere test for determining impairment. As a result, it is most commonly used in post accident investigations. However, the window of detection for blood testing is very narrow. Consequently, it is often overlooked as an alternative when assessing employee substance abuse on a casual basis. Moreover, the difficulties encountered in collecting the sample discourage its use for other than specially trained technicians. At the other end of the testing spectrum is hair
analysis. Hair testing can provide both quantitative and qualitative information about a subject's use of illegal drugs over a long period of time. Moreover, its sample collection and handling procedures are simple. However, it cannot differentiate between employee substance abuse on or off the job. Thus, it may be the test of choice if employees are totally prohibited from indulging in the substances being tested. On the other hand, if the information desired is only an employee's practices while on the job, then hair testing is not the technique to use.

The choices in testing technology also present other options and considerations. The most obvious other considerations are the chain of custody and confirmation testing. A urine sample, for example, cannot be positively identified to a specific individual once the chain of custody is compromised. Consequently, the procedures for specimen collection and handling are of considerable consequence when deciding to use this technique. The importance of chain of custody is especially significant in this case since a second urine specimen collected from a subject after the first sample was collected may, depending on the elapsed time, yield entirely different results. By contrast, a hair sample can be positively identified to a particular individual through DNA typing. Also, the historical information captured by the hair fiber easily permits multiple confirmatory tests. Of course, this feature of hair testing should in no way minimize the need for a strong chain of custody but it does provide other means of verifying the test’s results should the chain of custody accidentally fail. In addition, contractor programs can utilize these additional verification features whenever positive test results occur.

ESTABLISH STANDARDS OF PROGRAM PERFORMANCE

Unless interpretations of the program results can be made about the employee population or the accomplishment of program objectives then the entire effort is senseless. In order to gauge the degree of success or failure some standard must be set. For example, the contractor might establish a threshold where less than a 4% positive test rate is acceptable for maintaining a drug-free workforce but anything over that threshold requires additional measures to be implemented.

Establishing the performance standard can be quite subjective. On the other hand, the contractor could use its own historical data obtained from prior drug testing programs or it could even adopt published industry experience in setting its performance standard. Although some contractors may be able to achieve very low performance standards, an expectation of zero positive testing may be unrealistic for even the best of companies. In addition, the rate of positive employee testing can be influenced by the testing technology, testing notification lead time, and the number or type of substances for which the subject is being tested.

Failure to meet or exceed the standard should not be interpreted as a failed program that, for purposes of the DOD Rule, would warrant contract termination or other remedial action. The Rule's requirement is "to institute and maintain a program for achieving the objective of a drug-free workforce". A program that, by design, implements additional measures upon failing to meet the performance standard is designed to achieve the objective of a drug-free workforce. Comparing program results to an established standard is, therefore, only a management tool designed to indicate program effectiveness in achieving a desired outcome and not absolute success or failure.

On the other hand, establishing a performance standard helps to pre-empt any second guessing of a contractor's program by government officials or oversight agencies. By establishing a standard, the issue then becomes one of its validity and not whether the contractor has met its obligations under the Rule. At the very worst, the contractor may be persuaded to periodically revise its standard as its program increases in effectiveness.

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