OBD 1792.1A

DRUG-FREE WORKPLACE PROGRAM FOR
THE OFFICES, BOARDS AND DIVISIONS

Approval Date:		November 1, 1989
Approved By:		HARRY H. FLICKINGER Assistant Attorney General for Administration
Distribution:		OBD/H-4; SPL-23
Initiated By:		Justice Management Division Personnel Staff

1. PURPOSE. This order establishes policy and procedures for the Drug-Free Workplace Program (hereinafter referred to as the OBD Program) for:

   1. Employee assistance.

   2. Supervisory training.

   3. Employee education.

   4. Identification of illegal drug use through drug testing on a carefully controlled and monitored basis.

2. SCOPE. This order shall be effective immediately for the following organizations (for the purposes of this order, hereinafter referred to as OBDs):

   Office of the Attorney General
   Office of the Deputy Attorney General
   Office of the Associate Attorney General
   Office of the Solicitor General
   Office of Intelligence Policy and Review
   Office of Justice Programs
   Office of Legal Counsel
   Office of Legislative Affairs
   Office of Liaison Services
   Office of Policy Development
   Office of Professional Responsibility
   Office of Public Affairs
   Office of the Pardon Attorney
   Executive Office for Immigration Review
   Executive Office for United States Attorneys
   United States Attorneys' Offices
   Executive Office for United States Trustees
   United States Trustees' Offices
   Community Relations Service
   Justice Management Division
   Antitrust Division
   Civil Division
   Civil Rights Division
   Criminal Division
   Tax Division
   Land and Natural Resources Division
   United States Parole Commission
   International Criminal Police Organizations --

   United States National Central Bureau

3. CANCELLATION. Order OBD 1792.1 is cancelled.

4. AUTHORITY. Executive Order 12564, The Supplemental Appropriations Act of 1987, Pub. L. 100-71, Section 503 (hereinafter referred to as the Act,) 21 U.S.C. Section 802(b), and the Department of Justice Drug-Free Workplace Plan dated September 25, 1987, as amended on December 17, 1987, (hereinafter referred to as the DOJ Plan).

5. REFERENCES. This order incorporates Departmental policy in the following program areas: discipline and adverse action, and employee assistance and personnel security.

6. POLICY. It is the policy of the Department of Justice to achieve a drug-free workplace. The specific objectives, procedures and guidelines of this order are applicable solely within the OBDs 1 listed in paragraph 2 of this order and are set forth to achieve a drug-free workplace.

7. DEFINITIONS.

   1. Applicant means any individual not currently employed by the OBDs who is tentatively selected for employment with the OBDs or is employed in the OBDs and identified for placement in a testing designated position (TDP).

   2. Employee Assistance Program (EAP) means the OBD-based counseling program that offers assessment, short-term counseling, and referral services to employees and their families for a wide range of drug, alcohol and mental health problems, and monitors their progress while in treatment.

   3. Director, Employee Assistance Program means the individual responsible for ensuring the development, implementation and review of the agency EAP.

   4. Testing Designated Position means positions within the OBDs which have been designated for random testing under paragraph 10 of this order.

   5. Probationary Employee Testing means random testing of employees during their first year of federal service.

8. RESPONSIBILITIES.

   1. Assistant Attorney General for Administration (AAG/A). The AAG/ A shall be the component head for purposes of this order and may delegate that authority. The AAG/A shall oversee the OBD Program and make final determinations for the OBDs on challenges to TDP classifications under Chapter 2.D of the DOJ Plan.

   2. Deputy Assistant Attorney General/Information and Administrative Services (DAAG/IAS). The DAAG/IAS shall supervise the Drug Program Coordinator (DPC) and maintain supervisory oversight over the OBD Program. The DAAG/IAS shall assure that necessary resources are provided to the DPC for the administration of the OBD Program.

   3. Deputy Assistant Attorney General/Controller (DAAG/C). The DAAG/C shall provide necessary logistic support to the OBD Program including the generation and maintenance of the random pools and lists to be used in random testing selections.

   4. Drug Program Coordinator (DPC).

      (1)	The OBDs shall have a DPC assigned to carry out the OBD Program. The DPC shall be responsible for implementing, directing, administering and managing the drug testing program within the OBDs. In addition, the DPC shall serve as the Contracting Officer's Technical Representative (COTR) and the principal contact with the laboratory in assuring the effective operation of the testing aspect of the OBD Program.
      (2)	In addition to those duties set forth in Chapter 3.C of the DOJ Plan, the DPC shall:

      	(a)	Implement the OBD Plan under the supervision of the DAAG/ IAS.
      	(b)	Coordinate with and report to the DAAG/IAS on information and findings that may affect the reliability or accuracy of laboratory results.
      	(c)	Confirm with the appropriate personnel official to determine whether an OBD applicant has been found to be drug-free.
      	(d)	Assure that applicants with verified positive test results are not hired by the OBDs.
      	(e)	Obtain results of positive drug tests from the MRO and ensure that these results are transmitted to the appropriate supervisor and that current employees with verified positive test results are taken out of testing designated positions during counseling or rehabilitation.

   5. Director, Employee Assistance Program. In addition to those duties set forth in Chapter 3.F of the DOJ Plan, the Director, EAP shall:

      (1)	Coordinate with the DPC, the MRO and supervisors, as appropriate.
      (2)	Work with the DPC to provide educational materials and training developed under the OBD Program to managers, supervisors and employees.
      (3)	Ensure that training is provided to assist supervisors in the recognition and documentation of facts and circumstances that support a reasonable suspicion that an employee may be using illegal drugs.

   6. Supervisors. Supervisors shall carry out those duties set forth in Chapter 3.G of the DOJ Plan.

   7. Government Contractors. Wherever existing facilities are inadequate to implement this order, the DAAG/IAS shall:

      (1)	Delegate authority for the administration of all related contracts and ensure that contractors chosen to perform duties under this order meet the Health and Human Services (HHS) Scientific and Technical Guidelines and laboratory certification standards.
      (2)	Establish, by contract or other procurement mechanism, the position and specific responsibilities of the MRO as required by the HHS guidelines.

   8. Medical Review Officer (MRO). The MRO is responsible for receiving laboratory results generated from the DOJ Drug-Free Workplace Program. The MRO is a licensed physician with knowledge of substance abuse disorders and has the appropriate medical training to interpret and evaluate all positive test results together with an individual's medical history and any other relevant biomedical information.

9. TESTING ANNOUNCEMENT AND NOTIFICATION PROCEDURES.

   1. General Announcement. A general announcement from the AAG/A announcing the testing program was issued on June 27, 1988, to specified OBDs. Notification to the Office of Justice Programs, U.S. Attorneys Offices and other OBD field offices will be made in conformance with Chapter 2.A of the DOJ Plan.

   2. Individual Notification. In addition to the general announcement, an individual notification and acknowledgement shall be distributed to all employees in testing designated positions and shall conform to Chapter 2.B and 2.C of the DOJ Plan.

   3. Administrative Relief. As provided in Chapter 2.D of the DOJ Plan, the AAG/A is the designated official.

10. OBD TESTING DESIGNATED POSITIONS. Employees in the following position categories have been selected as testing designated positions in the OBDs.

    1. All incumbents currently authorized to have access to top secret classified information in accordance with Executive Order 12356.

    2. All incumbents serving under Presidential appointments.

    3. All incumbents whose assigned position duties include maintaining, storing or safeguarding a controlled substance as defined by Section 802(6) of Title 21 of the United States Code.

11. NATURE, FREQUENCY, AND TYPE OF DRUG TESTING TO BE INSTITUTED.

    1. Section 503 of the Act requires the OBD Program to specify the nature, frequency, and type of drug testing to be instituted. The OBD Program includes the following types of drug testing:

       (1)	Applicant testing.
       (2)	Random testing of sensitive positions in testing designated positions.
       (3)	Probationary employee testing.
       (4)	Reasonable suspicion testing.
       (5)	Accident or unsafe practice testing.
       (6)	Voluntary testing.
       (7)	Testing as part of or as a follow-up to counseling or rehabilitation.

    2. Incumbents in TDPs will be tested at an annual frequency of 7%. Those employees with less than one year of federal service and who occupy TDPs will be tested at an annual frequency of 100%. The Assistant Attorney General for Administration reserves the right to increase or decrease the frequency of testing based on the OBD mission, needs, availability of resources, and experience in the OBD Program, consistent with the duty to achieve a drug-free workplace under the Executive Order.

    3. Section 503 of the Act requires the OBDs to specify the drugs for which individuals shall be tested. These are: marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP).

12. RANDOM TESTING.

    1. Positions Designated for Random Drug Testing. The titles of positions designated for random drug testing and the procedures applied in such designations have been established and disseminated to Executive Officers in the OBDs.

    2. Random Testing Procedures. Random testing procedures shall be in accordance with Chapter 4.C, D, E, G, H, I and J of the DOJ Plan.

13. REASONABLE SUSPICION TESTING.

    1. Procedures.

       (1)	If an employee is suspected of using drugs, consistent with Chapter 4.A.3 of the DOJ Plan, the appropriate supervisor shall gather all information, facts and circumstances leading to and supporting this suspicion. A higher-level supervisor shall concur in a reasonable suspicion determination prior to coordinating with the DPC for scheduling a test.
       (2)	Once reasonable suspicion has been established, the DPC shall ensure that the record contains the circumstances which formed the basis of the determination that reasonable suspicion exists to warrant the testing. The report shall include, at a minimum, the dates and times of reported incidents, sources of information and appropriate factual observations.

    2. Obtaining the Sample. In accordance with Chapter 4.H.1 of the DOJ Plan, if there is reason to believe an individual being tested under reasonable suspicion may alter or substitute the specimen provided, then privacy need not be afforded.

14. APPLICANT TESTING.

    1. Objectives. To maintain the high professional standards of the OBD workforce, it is imperative that individuals who use illegal drugs be screened out during the initial employment process before they are placed on the employment rolls of the OBD.

    2. Extent of Testing. Drug testing shall be required of all OBD applicants as defined in paragraph 7a of this order.

    3. Procedures.

       (1)	The hiring administrative office of each OBD shall schedule applicants for drug testing in coordination with the DPC. The collection shall be undertaken within 48 hours of notification to the applicant. Where appropriate, applicants may be reimbursed for reasonable travel expenses.
       (2)	Applicants shall be provided the opportunity to submit medical documentation that may support a legitimate use for a specific drug to the MRO or the staff of the MRO to determine whether the individual is licitly using an otherwise illicit drug.

    4. Personnel Officials. Upon notification that an individual has been tentatively selected for employment with the OBDs, the hiring administrative office shall assure, after consultation with the DPC or the staff of the DPC, that a drug test has been conducted and that the result was negative.

    5. Consequences. The OBDs shall decline to extend a final offer of employment to any applicant with a verified positive test result, and such applicant will not be considered for employment with the OBDs for a period of six months. The hiring administrative office shall inform the applicant that a confirmed presence of drugs in the applicant's urine precludes the OBD from hiring the applicant.

    6. Waiver. The AAG/A or his designee may waive one or more requirements of this paragraph on an individual case basis, provided that the individual acknowledges in writing that he/she must provide a urine specimen for the purpose of testing for the presence of illegal substances and provided further, that if the individual tests positive for illicit drug use, the positive test results may be grounds for individual's removal from his/her position. See appendix 1 for a sample of the acknowledgment format.

15. ADDITIONAL TYPES OF DRUG TESTING.

    1. Accident or Unsafe Practice Testing. The OBDs are committed to providing a safe and secure work environment. Employees involved in on-the-job accidents or who engage in unsafe on-duty job-related activities that pose a danger to others or the overall operation of the OBDs, may be subject to testing. Based on the circumstances of the accident or unsafe act, the DPC may initiate testing when there is:

       (1)	Evidence of an unsafe practice.
       (2)	Significant damage to property.
       (3)	Careless operation of a vehicle.
       (4)	Significant injury to persons.
       (5)	A pattern of erratic incidents.

    2. Voluntary Testing. Voluntary testing shall be conducted as provided under Chapter 4.A.2 and 4.K.5 of the DOJ Plan.

    3. Follow-up Testing. All employees required to undergo a counseling or rehabilitation program for illegal drug use through the EAP, as a result of the drug testing program, will be placed in a follow-up pool where they will be subject to regular, unannounced testing for a period of one year. Such employees shall be tested as often as stipulated in the abeyance agreement, or, in the alternative, at an increased frequency of ten times per year. Employees who complete a drug treatment program through an EAP who are returned to TDPs will, in addition to follow-up testing, be returned to the random testing pool.

    4. Probationary Employee Testing. Employees with less than one year of federal service, who occupy TDPs will be tested at a frequency of 100%. Employees will be scheduled for testing on a random basis during the first year. Selection from this pool does not remove the employee from the random pool.

16. TEST PROCEDURES.

    1. General. The OBDs shall comply with applicable test procedures specified in the DOJ Plan.

    2. Suspect Samples. Collection site personnel shall retain any sample that shows evidence of tampering or substitution under the HHS Scientific and Technical Guidelines. After consultation with the DPC and in accordance with Chapter 4.A.3 of the DOJ Plan, a second sample may be required under direct observation.

17. FINDING OF DRUG USE AND DISCIPLINARY CONSEQUENCES.

    1. Mandatory Administrative Actions.

       (1)	Upon a finding of illegal drug use, action shall be taken as specified in Chapter 4.K of the DOJ Plan.
       (2)	As provided in Chapter 4.K.2 of the DOJ Plan, the AAG/A shall determine whether the employee may return to duty in a sensitive position.

    2. Range of Consequences. The severity of the disciplinary action taken against an employee found to use illegal drugs will depend on the circumstances of each case, and will be consistent with the Executive Order and includes the full range of disciplinary actions, including removal. The OBDs shall initiate disciplinary action against any employee found to use illegal drugs but shall not discipline an employee who voluntarily admits to illegal drug use in accordance with the Voluntary Referral Provision in paragraph 17c of this order.

    3. Voluntary Referral.

       (1)	Chapter 4.K.3 of the DOJ Plan permits the OBDs to create a SAFE HARBOUR for an employee who voluntarily identifies himself/herself as a user of illegal drugs pursuant to Chapter 4.K.1 (a), (b), and (c) of the DOJ Plan and who therefore requests protection under this program who:

       	(a)	Voluntarily identifies himself/herself as a user of illegal drugs prior to being identified through other means;
       	(b)	Obtains counseling or rehabilitation through an Employee Assistance Program; and
       	(c)	Thereafter refrains from using illegal drugs.

       (2)	This self-referral option allows any employee to step forward and identify himself/herself as a user of illegal drugs for the purpose of obtaining counseling or rehabilitation.
       (3)	In stepping forward, and consistent with the voluntary testing provision in Chapter 4.A.2 of the DOJ Plan, an employee may also volunteer for a drug test as a means of self-identification. Although this self-identification test may yield a verified positive test result, such test result shall merely constitute an identification for purposes of this Section.
       (4)	This provision shall not be available to an employee who has been provided notice to give a urine sample under this order or who is found to have used illegal drugs pursuant to Chapter 4. K.1(a), (b) or (c) of the DOJ Plan and who thereafter requests protection under this provision.

18. EMPLOYEE ASSISTANCE PROGRAMS.

    1. Function. The OBD EAP plays an important role in preventing and resolving employee drug use by: demonstrating the OBD commitment to eliminating illegal drug use; providing employees an opportunity, with appropriate assistance, to discontinue their drug use; providing educational materials to supervisors and employees on drug use issues; assisting supervisors in confronting employees who have performance and/or conduct problems and making referrals to appropriate treatment and rehabilitative facilities; and following individuals during the rehabilitative period to track their progress and encourage successful completion of the program. The EAP, however, shall not be involved in the collection of urine samples or the initial reporting of test results. The purpose of the EAP is to:

       (1)	Provide counseling and assistance to employees who self-refer to treatment or whose drug tests have been confirmed positive, and monitor the employees progress through treatment and rehabilitation.
       (2)	Provide needed-education and training of all levels of the OBDs on types and effects of drugs, symptoms of drug use and its impact on performance and conduct, the relationship of the EAP to the drug testing program, and, finally, treatment, rehabilitation, and records confidentiality requirements.
       (3)	Ensure that confidentiality of test results and related medical treatment and rehabilitation records are maintained in accordance with the confidentiality requirements of Chapter 5 of the DOJ Plan.

    2. Referral and Availability. Any employee found to use illegal drugs shall be referred to the EAP. This program shall be administered separately from the drug testing program in accordance with employee assistance program policy, and shall be available to all employees without regard to a finding of drug use. The EAP shall provide counseling or rehabilitation for all referrals, as well as education and training regarding illegal drug use. The EAP may require drug testing of program participants. The EAP is available not only to OBD employees, but, when feasible, to the families of employees with drug problems, and to employees with family members who have drug problems.

    3. Leave Allowances. Employees may be allowed up to one hour (or more as necessitated by travel time) of excused absence for each counseling session, during the assessment/referral phase of rehabilitation. Absences during duty hours for rehabilitation or treatment will be charged in accordance with applicable leave regulations.

    4. Records and Confidentiality. All EAP counseling, rehabilitation or drug testing records shall be maintained in compliance with the confidentiality requirements of this order, the DOJ Plan, Section 503 of the Act, applicable federal laws, rules, regulations and guidelines.

    5. Structure. The AAG/A shall be responsible for oversight and implementation of the OBD EAP, and shall provide, with the support of the Attorney General, high level direction to and promotion of the EAP.

19. SUPERVISORY TRAINING.

    1. Objectives. As supervisors have a key role in establishing and monitoring a drug-free workplace, training shall be provided to assist supervisors and managers in recognizing and addressing, with the assistance and expertise of the EAP, illegal drug use by OBD employees. The purpose of supervisory training is to understand:

       (1)	Departmental policies relevant to work performance problems, drug use, and the OBD EAP.
       (2)	The responsibilities of offering EAP services.
       (3)	How employee performance and behavioral changes should be recognized and documented.
       (4)	The respective roles of the MRO, supervisors, personnel officials, and EAP staff.
       (5)	The ways to use the OBD EAP.
       (6)	How the EAP is linked to the performance appraisal and the disciplinary processes.
       (7)	The process of reintegrating employees into the work force.

    2. Implementation. The Justice Management Division shall be responsible for implementing supervisory training, and shall develop a training package to ensure that all employees and supervisors are informed of the OBD Drug-Free Workplace Plan.

    3. Training Package. Supervisory training shall be required for all supervisors and may be presented as a separate course, or be included as part of an ongoing supervisory training program. Training shall be provided as soon as possible after a person assumes supervisory responsibility. Training courses should include:

       (1)	Overall Departmental policy.
       (2)	The prevalence of various employee problems with respect to drugs and alcohol.
       (3)	The EAP approach to handling problems.
       (4)	How to recognize employees with possible problems.
       (5)	Documentation of employee performance or behavior.
       (6)	How to approach the employee.
       (7)	How to use the EAP.
       (8)	Disciplinary action, and removals from sensitive positions as required by Section 5(c) of the Executive Order.
       (9)	Reintegration of employees into the workforce.
       (10)	Written materials which the supervisor can use at the work site.

20. EMPLOYEE EDUCATION.

    1. Objective. The EAPA shall offer drug education to all OBD employees. Drug education shall include:

       (1)	Types and effects of drugs.
       (2)	Symptoms of drug use, and the effects on performance and conduct.
       (3)	The relationship of the EAP to the drug testing program.
       (4)	Other relevant treatment, rehabilitation, and confidentiality issues.

    2. Means of Education. Drug education activities may include:

       (1)	Distribution of written materials.
       (2)	Videotapes and films.
       (3)	Lunchtime employee forums.
       (4)	Employee drug awareness days.

21. RECORDS AND REPORTS CONFIDENTIALITY. All records and reports under this order shall be maintained in conformity with the confidentiality requirements of Chapter 5 of the DOJ Plan, Section 503 of the Act, applicable laws, rules, regulations and guidelines.

 

  / s / HARRY H. FLICKINGER

Assistant Attorney General

for Administration

 

APPENDIX I. SAMPLE ACKNOWLEDGMENT FORMAT.

PLEASE READ THIS BEFORE SIGNING.

I understand that as a condition of my appointment to a position in the U. S. Department of Justice:

1. I must provide to the Drug-Free Workplace Program a urine specimen for the purpose of testing it for the presence of illegal substances; and

2. If my urine tests positive for illicit drug use, the positive test results may be used as grounds for my removal from the position to which I am being appointed.

Signature____________________________ Date__________________

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