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| November 4, 2008 DOL Home > elaws Advisors > Drug-Free Workplace Advisor |
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Drug-Free Workplace Act of 1988
Questions and Answers about Coverage Are contracts performed partly inside the U.S. and partly outside the U.S. covered by the Drug-Free Workplace Act? Yes. The contractor must meet the requirements of the Act for those portions of the contract performed inside the United States, but not for those portions performed outside of the United States. If a single firm has several contracts which, when combined, total more than $100,000, is the firm subject to the Act? No. A firm would be subject to the Act only if the value of a single contract is more than $100,000. Does the Drug-Free Workplace Act cover subcontracts? No. Are temporary employees or volunteers covered? Any person who works on any activity under the grant or contract, and who is on the payroll, is considered to be a covered employee, even if not paid from grant or contract funds. A temporary employee is covered if he or she meets these criteria. A volunteer is someone who is not on the payroll, and hence is not covered under the rule. Are all employees of a grantee covered if only a few of the grantee’s several divisions are involved with the grant? Persons on the grantee’s payroll who work on any activity under the grant are covered. This includes both "direct charge" (i.e., those whose services are directly and explicitly paid for from grant funds) and "indirect charge" (i.e., those persons who perform support or overhead functions related to the grant and for which the Federal agency pays its share of expenses under the grant program) employees. If a grantee has four operating divisions and a headquarters unit, and one division receives a Federal grant, then the employees of the one division receiving the grant who are directly engaged in the performance of work under the grant are covered, as are headquarters employees who support the division’s operations. However, these rules in no way preclude a grantee from electing to cover employees of other divisions. Under what circumstances will an existing contract become subject to the requirements of the Drug-Free Workplace Act? If a contract has been modified on or after March 18, 1989, in such a manner that it would be considered a new commitment, the requirements of the Drug-Free Workplace Act apply. Are students in general and recipients of Pell Grants in particular required to comply with the Act? Yes Are Medicare third-party reimbursements to hospitals covered by the Drug-Free Workplace Act? No, because such sales are not made through a procurement contract or a grant. However, hospitals that receive procurement contracts or grants must meet the requirements of the Act. Are banks and other financial institutions selling U.S. Treasury bonds covered by the Drug-Free Workplace Act? No, because such sales are not made through a procurement contract or a grant. However, such institutions that receive procurement contracts or grants must meet the requirements of the Act. Are contracts awarded with non-appropriated funds subject to the provisions of the Drug-Free Workplace Act? No. Funds explicitly identified as non-appropriated are excluded from the Federal Acquisition Regulations (FAR) and, therefore, are not subject to the Drug-Free Workplace Act. Are contractors or grantees performing work in Federal facilities required to have Drug-Free Workplace programs? Yes. Is the retail purchase of utility services by the Federal government covered by the FAR and, therefore, subject to the Act? Yes. Federal purchases of utility services are covered under part 41 of the FAR. Is an order issued pursuant to a basic ordering agreement covered by the FAR and, therefore, subject to the Act? Yes. Basic ordering agreements are covered under subpart 16.7 of the FAR. Orders exceeding $100,000 issued under basic ordering agreements are subject to the Act. Are oil and gas leases with the Federal government covered? No. These types of contracts are not covered under the FAR and, therefore, are not covered by the Act. Are contracts to buy timber from the Federal government covered? No. These types of contracts are not covered by the FAR, and therefore, are not covered by the Act. Are Federal Savings and Loan Insurance Corporation (FSLIC) and Federal Deposit Insurance Corporation (FDIC) contracts for deposit insurance covered? No. These types of contracts are not covered by the FAR, and therefore, are not covered by the Act. Does selling U.S. savings bonds or acting as a depository for the Department of the Treasury constitute a procurement contract? No. Is an order issued against a requirement contract or an indefinite quantity contract covered by the Drug-Free Workplace Act when the order is reasonably expected to exceed $100,000? Yes. Does the FAR, which is issued jointly by three agencies (the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration), apply to contract awards by other executive agencies? Yes. Are grants to local school districts or other educational organizations covered by the Act? Yes, the statute does not provide a basis on which school districts or other education-related grantees can be exempted from the requirements of the regulations. Are grants from such agencies as the U.S. Postal Service (USPS), the Tennessee Valley Authority (TVA), and the Legal Services Corporation (LSC) covered by the Act? Grants from TVA are covered; grants from USPS and LSC are not, because they are not executive branch agencies. Is the receipt of free or subsidized space or utilities from a Federal agency a grant subjecting the recipient to coverage under the regulation? No, receipt of space or utilities (e.g., space used by enterprises operated by blind persons in Federal facilities) is not a grant subject to these regulations. Do the requirements of the Act and regulations preempt state and local laws? The requirements of the Act coexist with state and local law. Do the requirements of the Act and regulations preempt collective bargaining agreements? These requirements coexist with the collective bargaining process. Compliance with the requirements of the Act is a condition of receiving a Federal grant or contract. Preemption is not an issue. The Act and regulations do not claim to compel any change in labor-management agreements. Of course, labor and management cannot, through a collective bargaining agreement, nullify a grant or contract condition based on Federal law. Federal agencies are not compelled to provide grants or contracts to organizations that fail to comply with a statutorily imposed grant or contract condition, for whatever reason. However, where the regulations provide discretion about the mode of compliance with the regulations (e.g., an employer may either take disciplinary action against an employee convicted of a criminal drug offense resulting from a violation occurring in the workplace, or refer the employee for rehabilitation), labor and management may determine the mode of compliance through collective bargaining. What does the "place of performance" of a grant or contract mean, particularly for activities that have no fixed location (e.g., buses in a mass transit system)? The place of performance is wherever activity under a grant or contract occurs. It can be in a fixed location, a variety of locations or no fixed location. For mass transit buses, for instance, the place of performance may be the transit authority’s buses, wherever they are in operation. For grants for the arts, the places of performance may be the various concert halls, theaters, galleries, etc. at which the public views the performance or artwork. Grantees or contractors may list general categorical descriptions of such workplaces. What is the relationship between this rule and drug testing programs of the Department of Defense, Department of Transportation, and the Nuclear Regulatory Commission? The Department of Defense requires drug testing of certain employees and some defense contractors. If such a defense contractor also receives a grant from the Department of Defense or another Federal agency, the contractor would have to comply with both the Department of Defense requirements and these drug-free workplace rules. The Department of Transportation and the Nuclear Regulatory Commission require drug testing for certain employees of employers in the industries they regulate. If one of these employers were also a grantee of a Federal agency, the employer would have to comply with both the Department of Transportation or Nuclear Regulatory Commission requirements and these drug-free workplace rules. Finally, various Federal agencies, including the Departments of Defense, Treasury and Transportation, require some of their own Federal employees (e.g., air traffic controllers) to be tested for drug use. These requirements are unrelated to any requirements for grantees under the Drug-Free Workplace Act.
Questions and Answers about Requirements Do employees need to be notified only once as part of the drug-free awareness program or with each grant or contract? It is the intent of the regulations that the policy and program be a continuing effort. For clarity on this point, the regulation has been amended to specify that the drug-awareness program must be "ongoing." Consequently, while there is not a requirement to notify employees about their responsibilities each time a new grant or contract is received, an ongoing program must be maintained to ensure that employees remain aware of their continuing responsibilities. Are employees required to verify receipt of the policy statement? While some employers have chosen to ask their employees to sign that they have received the statement, this practice is not required by the regulation. Does the Act allow the notice and policy statement to be given to a collective bargaining representative rather than to each employee individually? No, under the statute and regulations, each employee must be informed in writing of the policy and his or her responsibilities. This task cannot be delegated to a third party, such as a union. Nothing prevents working cooperatively with a union to improve understanding of the policy and program among employees, however. Are alcohol and nonprescription drug abuse covered under the Act? While employers may include these subjects in their programs at their own discretion, the Act does not require their inclusion. Does the Act require grantees and contractors to establish an employee assistance program (EAP) or special training for supervisors? Nothing beyond the drug-free workplace policy statement and awareness program cited in the regulation is required. While grantees may voluntarily establish EAPs or special training for supervisors, doing so is not a requirement of the Act. Is drug testing required or authorized under these regulations? The Act and these rules neither require nor authorize drug testing. The legislative history of the Drug-Free Workplace Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act. At the same time, these rules in no way preclude employers from conducting drug testing programs in response to government requirements (e.g., Department of Transportation or Nuclear Regulatory Commission rules) or on their own independent legal authority. Does the drug-free awareness program required by the Act have to be in place at the time the contract or grant is awarded? The statute and regulations do not require the program to be in place at the time of grant award. The agreement is to the effect that such a program "will" be implemented (i.e., in the future). The agencies believe that grantees and contractors should have a reasonable time to get their program up and running. For a grant or contract of 30 days or less duration, however, the program must be in place as soon as possible, but in any case before performance of the contract or grant is to be completed. To require less would be clearly contrary to the intent of Congress. Under the Act, can an agency impose any additional requirements beyond those in the common rule? No. The interim final common rule and the final common rule indicate that the common rule is the sole authority for implementing the Act and that no separate agency guidance is authorized under the Act. Does the regulation have more specific language concerning which costs related to a drug-free awareness program are allowable under a grant? Grantees and contractors should refer to applicable Office of Management and Budget (OMB) Circulars A-21, A-87 and A-122 and Federal agency regulation for information on the allowability of costs. Cost allowability principles are the same for activities under these regulations as they are for expenditures needed to meet other grant conditions. Is the rehabilitation of employees an allowable cost? Only the fair Federal share of the reasonable and necessary expenses for the rehabilitation or other treatment for covered employees would be allowable, consistent with OMB Circulars A-21, A-87 and A-122 and Federal agency regulations.
Questions and Answers about Penalties How is the Drug-Free Workplace Act enforced? Compliance is checked as part of normal Federal contract and grant administration and auditing procedures. What responsibility do employees or employers have for reporting the use of controlled substances consistent with a legal prescription? Since the reporting requirements of the regulations pertain only to convictions for the unlawful use, possession, etc., of drugs occurring in the workplace, there is no reporting requirement in this situation. Do employees have an obligation to report a co-worker’s conviction to the employer? Employees are required to report only their own convictions. Reporting co-workers’ convictions is not required. Is an employer required to take action with respect to an employee who is convicted of a criminal drug offense resulting from a violation occurring in the workplace, even if the information about the conviction comes from a source other than the employee’s self-report? The employer’s obligation to take action (either disciplinary action or referral for rehabilitation) arises when the employer is "notified" of the conviction. This notification can come from any source (e.g., a newspaper report, contact from a probation officer, the employee’s self-report). Can an employer’s action with respect to a convicted employee be determined on a case-by-case basis? The regulation requires only that, in case of a conviction for a criminal drug offense resulting from a violation occurring in the workplace, the employer take one of two types of action. The employer may take disciplinary action (which may be termination or a less severe penalty) or may refer the employee for rehabilitation or drug abuse assistance program. The choice of which basic course to choose, as well as the specific discipline or treatment option, is left to the employer’s discretion and may be on a case-by-case basis—provided all state and local laws are followed. Should names of convicted employees be transmitted to the Federal agency? The information which must be provided to the appropriate grant or contract office includes position title of the convicted employee and the identification numbers for each contract or grant on which the employee works. After close-out on a grant or contract, but before final audit resolution, should convictions of covered employees be reported? No, reporting of convictions is not required in this period. To which Federal agencies should grantees and contractors report convictions of covered employees? Grantees and contractors must notify every grant or contract officer on whose grant or contract activity the convicted employee was working. If the employee was working on grants or contracts from more than one agency, then grant or contract officers at all applicable agencies must be notified. Alternatively, if one or more of the agencies involved has designated a central point for the receipt for such notices, the grantee or contractor would notify the central point rather than the officer(s) in these agencies. Is the number of days that employees and grantees have to make various notifications calendar days or working days? The certification specifies calendar days. Does the Act indicate the percentage of employees that must be convicted of criminal drug offenses for violations occurring in the workplace before triggering a finding that an employer has failed to make a good faith effort to maintain a drug-free workplace? The legislative history of the Act indicates that Congress did not believe that such a trigger is appropriate. In determining whether the Act has been violated, an agency will look at the convictions and the efforts the employer has made to maintain a drug-free workplace, deciding on a case-by-case basis whether a good faith effort has been made. A numerical or percentage cutoff would not permit agencies to do justice to the variety of situations that may occur. Can the responsibility for making determinations about lack of good faith or other grounds for violations of the rule be delegated to agency suspension and debarment officials? The Act authorizes agency heads or their official designees to make determinations of violations. This language permits agency heads to delegate this responsibility. The regulation should not constrain the discretion of agency heads by automatically designating certain officials to perform this task. Are penalties limited only to the transgressing workplace, and not to other parts of an employer’s organization? The agencies do not believe that the regulation should contain such a limitation. If a grantee or contractor fails to carry out the requirements of the Act or fails to make a good faith effort to maintain a drug-free workplace, the grantee’s or contractor’s overall management could be faulted for the violation—not only lower-level management at a particular site or facility. Responsibility for compliance goes all the way up an organization’s chain of command, and agencies need to be able to apply penalties accordingly. Does a conviction include acceptance of a guilty plea by a judicial body? Yes.
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