Guidance for Selection of Testing
Designated Positions (TDP's)
I. Purpose
This memorandum is the primary reference for agencies
selecting TDP's under the Federal Drug-Free Workplace Program established
pursuant to Executive Order No. 12564, issued September 15, 1986. It
supercedes, by combining and updating two previous ICG memoranda: "Guidance For
Selection of Testing Designated Positions" issued by the ICG Executive
Committee on January 24, 1992, and "Supplement to Guidance for Selection of
Testing Designated Positions" issued by the ICG Executive Committee on June 10,
1993.
The purpose of this document is to consolidate changes
resulting from court decisions into guidance for selection of TDP's, to provide
agencies with a guide for their examination of TDP's, and to simplify the steps
necessary to make changes to agency testing programs. Principally, the
approval process is eased by establishing a core group of TDP's as
presumptively to be included in all plans. Any agency desiring to exclude
any of those TDP's must present justifications for doing so. This new
guidance also eases review requirements when agencies include certain other
positions in their drug plans. Where consultative review is required, it
will be accomplished by members of the ICG Executive Committee under the
authority of the Office of National Drug Control Policy (ONDCP). ONDCP
assumed lead oversight and policy responsibility for Executive Order 12564 in
March of 1991 by designation of the President. This guidance supplements
and, to the extent there is a conflict, supersedes previous guidance on TDP's.
II. Background
In the early stages of the implementation of Executive
Order 12564, Federal agencies were provided a decision guide entitled Drug
Testing of Sensitive Positions, Optional Decision Guide for Selecting Testing
Designated Positions, to assist them in identifying the "pool" of
personnel potentially subject to random testing and in selecting from that pool
the TDP's. The analysis in that guide centered upon the criteria of
section 7(d) of the Executive Order. By applying these criteria, agency
identified the pool of sensitive positions which might be made subject to
random drug testing. At the time the Executive Order was issued, all
positions satisfying these criteria appropriately could be designated for
testing. Since that time, however, the Executive Order has been upheld
and TDP selection rationales for random testing at federal agencies have been
examined and narrowed by the courts through the years of litigation and
numerous judicial opinions. Although they remain instructive in
developing TDP's, the Decision Guide and Section IX of the Model Drug-Free
Workplace Plan developed by the ICG should be used only consistent with the
guidance.
One of the primary goals in the President's
designation of ONDCP as the lead agency in coordinating implementation of
Executive Order 12564 is the identification of appropriate areas where
consistency in agency plans is warranted. With the clarity resulting from
this multitude of court decisions, it is possible to identify TDP's that no
longer need to be submitted for consultative review to the ICG Executive
Committee because the criteria for such designations are unambiguous.
III. Current Legal Framework
Through litigation of agency programs, the courts have
defined some limits on TDP justifications. As a result of these
decisions, this guidance provides lists of presumptive, preferred,
discretionary and disfavored TDP's. There is still a substantial gray
area outside of the presumptive and preferred categories in which TDP's could
be justified based upon the unique facts of a particular agency. Agency
counsel should review the latest cases when proposing changes or additions to
their TDP's. However, the most significant and instructive cases in this
field continue to be the early pronouncements of the 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).
A. Presumptive Testing Designated
Positions.
In Light of the well developed law and clear public interest
applicable to the testing of certain categories of positions, these positions
set forth below are approved for inclusion in agency testing plans without
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 very compelling reasons exist not to do
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 TDP's. However, an information copy of
implemented changes should be forwarded to the ICG Executive Committee.
If an agency head is of the opinion that the unique circumstances of that
agency warrant the exclusion of all or some of the positions in these
categories, these circumstances should be presented to the ICG Executive
Committee for consultative review. The positions that are to be included
in every plan if such positions exist in the agency are the following:
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 in all TDP pools.
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 developed 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 will almost always
need established judicial standards. However, inclusion of the following
positions as TDP's is not presumptive. To ensure reasonable uniformity,
agencies will still need to present for consultative review agency-specific
justifications for testing of these positions. Agencies choosing to exclude
positions of functions specified below from drug testing are required to
explain the decision not to designate one or more of these positions as TDP's
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 TDP's 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 TDP's 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 TDP's were able to show a nexus between the
work performed and a "compelling government interest in safety," such that
small errors or momentary lapses 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
TDP's is strongly preferred, one category may qualify for an exclusion. A
few agencies have part-time presidential appointees who sit on commissions or
boards that meet only three or four times a year. An agency head may
determine that random testing of these appointees is impractical.
3. Front Line Law Enforcement
Personnel.
The third major preferred category if front line law enforcement
personnel with proximity to criminals, drugs, or drug traffickers. These
positions include guard 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 so inimical to illegal drug use that such
employees can expect inquiry 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 TDP's; 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
TDP's. Unless supervisors of drug counselors meet this test, they should
not be included as TDP's. In addition, computer employees who help select
personnel for random tests do not qualify as TDP's. 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, national security material that it
is reasonable to assume may damage 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 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 TDP's
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. Moreover,
many TDP's that have not been court tested are also appropriate as required by
agency needs. To the extent agencies identify these kinds of positions
for TDP's, the agency must 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 the necessary causal
connection between the employee's duties and the feared harm 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
TDP's 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)
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 present 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
TDP's because of their access to "truly sensitive" information, but it refused
to approve as TDP's 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 TDP's 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.
IV. Agency Plan Revisions
In order to comply with the need for consistency of TDP's among the
many federal agencies, all agencies shall, if necessary, revise their testing
designated positions in accordance with this guidance.
Agencies seeking to make substantive changes to their Drug-Free
Workplace Plans, or TDP's should submit their proposals to: The ICG
Executive Committee, c/o the Department of Health and Human Services, Substance
Abuse and Mental Health Services Administration (SAMHSA), Division of Workplace
Programs, 5600 Fishers Lane, Rockville 2, Suite 815, Rockville, Maryland,
20857.
To ensure a comprehensive review of these requests, agencies should
submit the following information:
A. A statement describing the proposed
changes.
B. Official job descriptions or a
summary of the duties performed by positions being recommended for drug
testing.
C. The agency's official written
justification for each proposed TDP. In some cases, group justifications
may suffice for positions that share common duties and fall under the same TDP
category.
