Drug-Free Workplace Act of 1988
Frequently Asked Questions
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 grantees several
divisions are involved with the grant?
Persons on the grantees 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 divisions 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 authoritys 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.
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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.
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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-workers 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
employees self-report?
The employers 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 employees
self-report).
Can an employers 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 employers discretion and may be on a
case-by-case basisprovided 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
employers 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 grantees or
contractors overall management could be faulted for
the violationnot only lower-level management at a
particular site or facility. Responsibility for
compliance goes all the way up an organizations
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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