3 FAH-1 H-2000
PERSONNEL OPERATIONS
3 FAH-1 H-2100
EMPLOYMENT
3 FAH-1 H-2110
Drug-Free Workplace
(CT:POH-236; 07-14-2020)
(Office of Origin: GTM/ER)
3 FAH-1 H-2111 DRUG-FREE WORKPLACE PROGRAM (DFWP)
(CT:POH-164; 09-08-2014)
(State Only)
(Applies to Foreign Service and Civil Service employees)
The Department of State's Drug-Free Workplace Program (DFWP) is based on a Drug-Free Workplace Program Plan published as 3 FAH-1 Exhibit H-2111 of this subchapter.
3 FAH-1 H-2112 THROUGH H-2119 UNASSIGNED
3 FAH-1 Exhibit H-2111
U.S. Department of State Drug-Free Workplace Program
(CT:POH-236; 07-14-2020)
I. INTRODUCTION
A. Background
B. Statement of Policy
C. Nature, Frequency, and Type of Drug Testing Utilized
D. Drugs for Which Employees Are Tested
E. Scope
F. Union Cooperation
G. References
II. DEFINITIONS
III. EMPLOYEE ASSISTANCE PROGRAM (Currently called "ALCOHOL AND DRUG AWARENESS PROGRAM (ADAP)")
A. Function
B. Structure
C. Referral and Availability
D. Leave to Participate in Treatment
E. Records and Confidentiality
IV. SUPERVISORY TRAINING
A. Objectives
B. Implementation
C. Training Package
V. EMPLOYEE EDUCATION
A. Objectives
B. Means of Education
VI. SPECIAL DUTIES AND RESPONSIBILITIES
A. Drug Program Coordinator (DPC)
B. Drug Program Manager (DPM)
C. Deputy Medical Director, Mental Health Programs
D. Alcohol and Drug Awareness Program (ADAP) Director
E. Alcohol and Drug Awareness Program (ADAP) Staff
F. Medical Review Officer
G. Supervisors
H. Implementation
I. U.S. Government Contractors
VII. NOTICE
A. Individual Notice
B. Signed Acknowledgment
C. Administrative Relief
VIII. FINDING OF DRUG USE AND DISCIPLINARY CONSEQUENCES
A. Determination
B. Mandatory Administrative Actions
C. Range of Consequences
D. Initiation of Mandatory Removal from Service
E. Refusal to Take Drug Test When Required
F. Voluntary Self-Referral (Safe Harbor)
IX. RANDOM TESTING
A. Testing Designated Positions (TDP) for Random Drug Testing
B. Factors in Designation of a TDP
C. Implementing Random Testing
D. Notification of Selection
E. Deferral of Testing
X. REASONABLE SUSPICION TESTING
A. Individuals Subject to Reasonable Suspicion Testing
B. Grounds
C. Procedures
D. Obtaining the Sample
E. Supervisory Training
XI. APPLICANT TESTING
A. Objectives
B. Extent of Testing
C. Vacancy Announcements
D. Procedures
E. Consequences
XII. ADDITIONAL TYPES OF DRUG TESTING
A. Accident or Unsafe Practice Testing
B. Voluntary Testing
C. Follow-up Testing
XIII. TEST PROCEDURES IN GENERAL
A. Mandatory Guidelines for Federal Workplace Drug Testing Programs
B. Privacy Protections
C. Failure to Appear for Testing
D. Opportunity to Justify a Positive Test Result
E. Employee Counseling and Assistance
F. Savings Clause
XIV. RECORDS AND REPORTS
A. Confidentiality of Test Results
B. Employee Access to Records
C. Confidentiality of Records in General
D. Program Records
E. Records Maintained by Government Contractors
F. Statistical Information
XV. LIST OF POSITIONS DESIGNATED FOR RANDOM TESTING
I. INTRODUCTION
A. Background
On September 15, 1986, President Reagan signed Executive Order 12564 (hereinafter, referred to as the “Executive Order”), establishing the goal of a drug-free federal workplace. The Executive Order made it a condition of employment for all federal employees to refrain from using illegal drugs on or off-duty. On July 11, 1987, Congress passed legislation implementing the Executive Order. Section 503 of the Supplemental Appropriations Act of 1987, Public Law 100-71, 101 Stat. 391, 468-471, codified at 5 U.S.C. 7301 note, (hereafter, the “Act”), was passed in an attempt to establish uniformity among federal agency drug testing plans, reliable and accurate drug testing, employee access to drug testing records, and confidentiality of drug test results.
The purpose of the Department of State’s Drug-Free Workplace Program (hereinafter, referred to as the “DFWP”) is to set forth objectives, policies, procedures, and implementation guidelines to achieve a drug-free federal workplace, consistent with the Executive Order and the Act.
B. Statement of Policy
The Department of State (hereafter referred to as “the Department”), as a consequence of its leading role in developing and implementing policies affecting the security of the United States, has a compelling obligation to eliminate illegal drug use from its workplace. Much of the work of the Department involves highly sensitive information that must not be compromised. It is critically important that employees with access to sensitive information be reliable and stable and show good judgment. Illegal drug use creates the possibility of coercion, influence, and irresponsible action under pressure and poses a serious risk to national security, public safety, and effective law enforcement. Illegal drug use is inconsistent with the special trust placed in those who serve the public and damages the ability of the United States to protect its interests abroad, both in terms of combating the illicit flow of narcotics and assuring the wide range of United States political, economic, and social relationships with foreign governments.
Therefore, this DFWP includes comprehensive policies and procedures for:
(1) Employee Assistance Program (called the "Alcohol and Drug Awareness Program (ADAP)" in this policy);
(2) Supervisor training;
(3) Employee education; and
(4) Identification of illegal drug users through drug testing on a carefully controlled and monitored basis.
C. Nature, Frequency, and Type of Drug Testing Utilized
The DFWP includes the following types of drug testing:
(1) Random testing of employees in Testing Designated Positions (TDPs);
(2) Reasonable suspicion testing;
(3) Accident or unsafe practice testing;
(4) Voluntary testing;
(5) Testing as part of, or as a follow-up to, counseling rehabilitation; and
(6) Applicant testing.
The frequency of testing for random testing, voluntary testing, and follow-up testing is specified at Sections XII(B) - XII(C) and Section IX(C), of this DFWP, respectively. The Secretary or his or her designee reserves the right to increase or decrease the frequency of testing based on the Department’s mission, need, availability of resources, and experience in the DFWP, consistent with the duty to achieve a drug-free workplace under the Executive Order.
D. Drugs for Which Individuals are Tested
The Department tests for the following drugs: marijuana, cocaine, opiates and opioids, phencyclidine (PCP), and amphetamines.
E. Scope
This DFWP applies to all employees of the Department.
F. Union Cooperation
The active participation and support of labor organizations can contribute to the success of this DFWP. Management will seek ways in which recognized bargaining unit representatives might assist in program implementation, such as in acquainting employees with rehabilitation facilities and by enhancing employee confidence in the program. Management will continue to observe agreements already reached and will continue to meet its obligations under Title VII of the Civil Service Reform Act of 1978, and Chapter 10 of the Foreign Service Act of 1980, as amended.
G. References
(1) Authorities
(a) Executive Order 12564;
(b) Executive Order 13467, as amended;
(c) Executive Order 12968, as amended;
(d) 5 U.S.C. Section 7361
(e) Section 503 of the Supplemental Appropriations Act of 1987, Public Law 100-71, 101 Stat. 391, 468-471, codified at 5 U.S.C. 7301 note;
(f) Mandatory Guidelines for Federal Workplace Drug Testing Programs, which includes Scientific and Technical Requirements and Certification of Laboratories Engaged in Urine Drug Testing, 53 FR 11970 (1988) as amended; (hereinafter, referred to as the “Mandatory Guidelines for Federal Workplace Drug Testing Programs”);
(g) Civil Service Reform Act of 1978, Public Law. 95-454;
(h) Foreign Service Act of 1980, as amended, Public Law. 96-465;
(i) Sections 523 and 527 of the Public Health Service Act and implementing regulations at 42 CFR Part 2, Confidentiality of Alcohol and Drug-Abuse Patient Treatment Records;
(j) The Privacy Act of 1974 (5 U.S.C. Section 552a), prescribing requirements governing the maintenance of records by agencies pertaining to individuals and access to these records by the individual(s) to whom they pertain;
(k) Regulations implementing the Privacy Act of 1974 within the Department;
(l) Federal Employees Substance Abuse Education and Treatment Act of 1986, Public Law 99-570;
(m) Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, Title V, as amended; and
(n) 5 C.F.R. Part 792 - Subpart A - Alcoholism and Drug Abuse Programs and Services for Federal Civilian Employees.
(2) Guidance
Foreign Affairs Manual (FAM), including 16 FAM 430, Alcohol and Drug Awareness Program (ADAP); 3 FAM 4130, Standards for Appointment and Continued Employment; 3 FAM 4300 Disciplinary Actions (Foreign Service); and 3 FAM 4500, Disciplinary Actions (Civil Service).
II. DEFINITIONS
(1) Alcohol and Drug Awareness Program (ADAP) – A component of the Department's Employee Assistance Program that provides confidential assistance to employees and their eligible family members for drug or alcohol problems. This assistance may be in the form of short-term counseling or referral to a community rehabilitation or counseling program.
(2) Applicant - Any individual conditionally selected for employment with the Department.
(3) Department – The Department of State.
(4) Drug Program Coordinator (DPC) – A Deputy Assistant Secretary for Global Talent Management. The DPC is responsible for the overall implementation, direction, administration, and management of the Department’s DFWP.
(5) Drug Program Manager (DPM) – The individual who handles the day-to-day management, coordination, and implementation of the Department's DFWP. The DPM also makes the final decision regarding deferral of testing.
(6) Designated Bureau Drug Program Coordinators (BDPC) – The individuals responsible for coordinating with the DPM regarding notification of employees in their bureau who have been selected for random drug testing. The BDPC may designate individuals in their bureau field offices to assist them in the notification of employees in the field offices.
(7) Employee Assistance Program (EAP) – In the Department, staff within the ADAP provides counseling and referral services for alcohol and drug problems. Counseling services for non-substance-related, behavioral health concerns are provided by the Employee Consultation Service staff, within the Office of Mental Health Programs.
(8) Employee in a Sensitive Position - An employee who is cleared for access to information classified at SECRET or above.
(9) Foreign Affairs Manual (FAM) - The Department’s policies and regulations, to include the DFWP.
(10) Illegal Drugs – A controlled substance included in Schedule I or II, as defined by 21 U.S.C. 802(6), the possession of which is unlawful under chapter 13 of that Title. The term “illegal drugs” does not mean the use of a controlled substance pursuant to, and consistent with, a valid prescription, as recognized by federal law, or other uses authorized by law.
(11) Medical Review Officer (MRO) – The individual responsible for receiving laboratory results generated from the Department’s Program. The MRO must be a licensed physician with knowledge of substance abuse disorders and the appropriate medical training to interpret and evaluate all positive test results together with the individual’s medical history and any other relevant biomedical information.
(12) Random Testing – A system of drug testing imposed without individualized suspicion that a particular individual is using illegal drugs. Random testing may either be a) uniform, unannounced testing of testing designated employees occupying a specified area, element, or position, or b) a statistically random sampling of such employees based on a neutral criterion, such as social security numbers.
(13) Testing Designated Position (TDP) – An employment position within the Department held by an employee who is cleared for access to sensitive information, e.g., information classified at SECRET or above.
(14) Verified Positive Test Result – A test result that was positive on an initial Food and Drug Administration-approved immunoassay test, confirmed by a Gas Chromatography/Mass Spectrometry assay, (or other confirmatory tests approved by the Department of Health and Human Services (HHS)), and reviewed and verified by the Medical Review Officer in accordance with this Program and the Mandatory Guidelines for Federal Workplace Drug Testing Programs.
III. EMPLOYEE ASSISTANCE PROGRAM (EAP)
A. Function
The Department’s EAP for purposes of the drug program is called the Alcohol and Drug Awareness Program (ADAP) and it provides EAP services for individuals with substance-related concerns. ADAP plays an important role in preventing and resolving employee drug use by: demonstrating the Department’s 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; advising supervisors on how best to confront employees who have performance and/or conduct problems that appear to be based on illegal substance abuse, and making referrals to appropriate treatment and rehabilitative facilities; and follow-up with individuals during the rehabilitation period to track their progress and encourage successful completion of the program. ADAP is not involved in the collection of urine samples or the initial reporting of test results. Specifically, the ADAP:
(1) Provides counseling and assistance to employees who self-refer for treatment or who are referred for treatment, including after a verified positive drug test result, and monitors the employee’s progress through treatment and rehabilitation;
(2) Provides needed education and training to all levels of the Department on types and effects of drugs, symptoms of drug use and its impact on performance and conduct, relationship of the ADAP with the drug testing program, and related treatment, rehabilitation, and confidentiality issues; and
(3) Ensures that confidentiality of counseling and related medical treatment and rehabilitation records are maintained in accordance with Section XIV of this DFWP and relevant federal regulations.
B. Structure
(1) The Deputy Medical Director for Mental Health Programs or his or her designee is responsible for oversight and implementation of the Department’s ADAP.
(2) When an employee is referred to ADAP and that employee or his or her eligible family member needs additional mental health or substance-related services, ADAP and the appropriate Mental Health Program staff will work collaboratively to address these needs in a manner that is in the best interest of the patient(s).
C. Referral and Availability
(1) Any employee found to be using illegal drugs will be referred to ADAP. ADAP is also available to all employees without regard to a finding of drug use. ADAP provides an initial assessment of the treatment needs of the person(s) referred and then may provide a brief intervention or recommend community providers for counseling or rehabilitation. Education and training regarding illegal drug use is made available for all referrals. Individuals having additional counseling needs may be offered other mental health services, as appropriate.
(2) When appropriate, ADAP may recommend high-quality treatment programs in the community. Participation in substance abuse treatment is voluntary, as is participation in a specific program recommended by ADAP. If the individual chooses not to participate in a recommended program, elements of the alternative program will be evaluated for adequacy and appropriateness. If the course of treatment is not considered adequate, then ADAP may communicate these findings to Human Resources’ (HR) staff as appropriate and consistent with the employee’s written consent.
(3) In the event the employee is not satisfied with the program of treatment or rehabilitation, the employee may seek review of the ADAP referral by notifying the Deputy Medical Director for Mental Health Programs or his or her designee prior to completion of the program. Decisions made by the Deputy Medical Director or designee are final and are not subject to further administrative review.
(4) Regardless of the treatment program chosen, the employee remains responsible for successful completion of the treatment, and assertions that the Mental Health Program staff failed to consider certain factors in making a referral will not constitute either an excuse for continuing to use illegal drugs or a defense to disciplinary action if the employee does not complete treatment. Failure to follow a recommended ADAP treatment may result in separation from Federal service.
D. Leave to Participate in Treatment
Employees are allowed up to one (1) hour (or more as necessitated by travel time) of excused absence for each counseling session with ADAP, and up to three (3) hours, exclusive of travel time, during the assessment and/or referral phase of rehabilitation. However, absences during duty hours for treatment must be charged to an appropriate leave category in accordance with law and leave regulations.
E. Records and Confidentiality
All ADAP records are confidential in accordance with Section XIV of the DFWP and other pertinent federal regulations. Employees who wish to have their participation in treatment reported to HR or other Department officials will provide written consent for that purpose.
IV. SUPERVISORY TRAINING
A. Objectives
Supervisors have a key role in establishing and monitoring a drug-free workplace. The Department provides training to assist supervisors and managers to recognize and address illegal drug use by agency employees. The purpose of supervisory training is to understand the following:
(1) Department’s policies relevant to work performance problems, drug use, and the ADAP;
(2) The responsibilities of offering ADAP services;
(3) How employee performance and behavioral changes should be recognized and documented;
(4) The roles of the MRO, medical staff, supervisors, Human Resources (HR), and ADAP personnel;
(5) Identification of ADAP services and how best to access these services;
(6) How the ADAP is linked to the performance appraisal and the disciplinary process; and
(7) The process of reintegrating employees into the workforce.
B. Implementation
The DPM, in conjunction with the ADAP Director, will provide educational material and/or training to inform employees and supervisors of the requirements of the DFWP.
C. Training Package
Supervisory training may be presented as a separate course, or included as part of an ongoing supervisory training program. Training may consist of written materials or classroom sessions or a combination of the two. Training should be provided as soon as possible after a person assumes supervisory responsibility. Training courses should include the following:
(1) Overall Department policy;
(2) The prevalence of various employee problems with respect to drugs and alcohol;
(3) ADAP resources available to supervisors and employees;
(4) How to recognize employees with possible problems;
(5) Documentation of employee performance or behavior;
(6) Skills in confronting employees with possible problems;
(7) Department procedures for referring employees to the ADAP;
(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; and
(10) Written materials, which the supervisor can use at the work site.
V. EMPLOYEE EDUCATION
A. Objectives
The ADAP Director will offer drug education opportunities to all Department employees. Drug education should include education material available to all levels of the Department on the following:
(1) Types and effects of drugs;
(2) Symptoms of drug use and the effects on performance and conduct;
(3) The relationship of the ADAP to the drug testing program; and
(4) Other relevant treatment, rehabilitation, and confidentiality issues.
B. Means of Education
Drug education may consist of the following:
(1) Distribution of written materials;
(2) Recorded programs;
(3) Lunch time employee forums;
(4) Employee drug awareness days; and
(5) Direct inquiry with ADAP staff.
VI. SPECIAL DUTIES AND RESPONSIBILITIES
A. Drug Program Coordinator (DPC)
A Deputy Assistant Secretary for Global Talent Management serves as the Drug Program Coordinator (DPC). The DPC is responsible for implementation, direction, administration, and general oversight of the Department’s DFWP, and provides supervision of the Drug Program Manager in the Office of Employee Relations (GTM/ER).
B. Drug Program Manager (DPM)
The Drug Program Manager (DPM) handles the day-to-day management, coordination, and implementation of the DFWP and reports to the DPC. The DPM has primary responsibility for assuring the effective operation of the testing portion of the program. In carrying out this responsibility, the DPM will:
(1) Arrange for all testing authorized under this DFWP;
(2) Ensure that all employees subject to random testing receive individual notice as described in Section VII(A) of this DFWP and that such employees return a signed acknowledgment of receipt form;
(3) Upon receipt of a verified positive test result from the MRO, transmit the test result to the appropriate management official empowered to initiate disciplinary action;
(4) Document, through written inspection reports, all results of laboratory inspections conducted;
(5) Coordinate with and report to the DPC on activities and findings that may affect the reliability or accuracy of laboratory results;
(6) In coordination with the ADAP Director, publicize and disseminate drug program educational materials and oversee training and education sessions regarding drug use and rehabilitation;
(7) Coordinate all drug testing related activities throughout the Department wherever possible to conserve resources and to accomplish reliable and accurate testing objectives efficiently and speedily; and
(8) Provide approval of deferral of testing.
C. Deputy Medical Director for Mental Health Programs
The Deputy Medical Director for Mental Health Programs or his or her designee should:
(1) Assume the lead role in the development, implementation, and evaluation of the ADAP; and
(2) Supervise the ADAP Director and assist in establishing and maintaining ADAP services in the field.
D. ADAP Director
The ADAP Director should:
(1) Implement and direct the Department's ADAP;
(2) Provide counseling and treatment services to all employees referred to the ADAP by management or through self-referrals, and otherwise offer employees the opportunity for counseling and rehabilitation, either by direct services or through referral to community providers;
(3) Work with the DPM to provide educational materials and training to managers, supervisors, and employees on illegal drugs in the workplace;
(4) Assist supervisors with performance and/or personnel problems that may be related to illegal drug use;
(5) Monitor the progress of referred employees during and after the rehabilitation period and provide feedback to DPM in accordance with 42 CFR Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records;
(6) 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;
(7) Maintain a list of rehabilitation or treatment organizations, which provide counseling and rehabilitative programs, including the following information on each such organization:
(a) Name, address, and phone number;
(b) Types of services provided;
(c) Hours of operation, including emergency hours;
(d) Contact person's name and phone number;
(e) General fee and insurance practices;
(f) Client specialization; and
(g) Other pertinent information.
(8) Periodically visit rehabilitative or treatment organizations to meet administrative and staff members, tour the site, and ascertain the experience, certification, and educational level of staff, and the organization's policy concerning progress reports on clients and post-treatment follow-up.
E. ADAP Staff
ADAP staff will:
(1) Serve as the initial point of contact for persons interested in counseling related to alcohol or substance abuse.
(2) Be familiar with all applicable laws and regulations, including drug treatment and rehabilitation insurance coverage available to employees through the Federal Employee Health Benefits program.
(3) Be qualified and trained in counseling employees in the occupational setting and identifying drug use.
(4) Provide clinical review and oversight of treatment plans by community providers. Plans will be reviewed with the patient to address the appropriateness for individual treatment needs, available resources, and patient willingness to collaborate in following the treatment plan.
(5) In making referrals, consider the following:
(a) Nature and severity of the problem;
(b) Location of the treatment;
(c) Cost of the treatment;
(d) Intensity of the treatment environment;
(e) Availability of inpatient and/or outpatient care;
(f) Other special needs, such as transportation and child care; and
(g) Employee preference.
(6) Document encounters in a manner that promotes continuity of care and administrative oversight of services provided.
F. Medical Review Officer (MRO)
The MRO will, among other duties:
(1) Receive all laboratory test results;
(2) Assure that an individual who has tested positive has been afforded an opportunity to discuss the test result in accordance with Section XIV of this Program;
(3) Consistent with confidentiality requirements, refer written determinations regarding all verified positive test results to the DPM, including a positive drug test result form indicating that the positive result has been verified, together with all relevant documentation and a summary of findings; and
(4) Coordinate with and report to the DPM on all activities and findings on a regular basis.
G. Supervisors
Supervisors will be trained to recognize and address illegal drug use by employees, and will be provided access to information regarding referral of employees to ADAP, procedures and requirements for drug testing, and behavioral patterns that give rise to a reasonable suspicion that an employee may be using illegal drugs. First line supervisors will do the following:
(1) Attend training sessions on illegal drug use in the workplace;
(2) Document performance problems, behavior and/or abnormal conduct and refer employees to ADAP and, if appropriate, submit findings to the Bureau of Global Talent Management, Office of Employee Relations, (GTM/ER), for GTM/ER's determination regarding reasonable suspicion of drug use; and
(3) In conjunction with personnel specialists, assist second line supervisors and the ADAP Director in evaluating employee performance and or personnel problems that may be related to illegal drug use.
H. Implementation
Each bureau will support the efficient and effective implementation of the Department's DFWP in accordance with guidelines established by the DPC.
I. U.S. Government Contractors
Where it is determined that certain activities provided under this DFWP should be undertaken by an outside contractor:
(1) The DPM will serve as Contracting Officer for the administration of all related contracts; and
(2) The DPC will ensure that contractors chosen to perform the drug screening tests are duly certified pursuant to the HHS guidelines and that all contracts conform to the technical specifications of the HHS guidelines.
VII. NOTICE
A. Individual Notice
Each newly-hired employee of the Department must receive a “Department of State Drug Testing Policy” (Form DS-7663) which informs the employee of the DFWP and which should include the following:
(1) The definition of a TDP;
(2) A statement that the employee will have the opportunity to voluntarily identify himself or herself as a user of illegal drugs and to receive counseling or rehabilitation, prior to notification of being tested, and will not be subject to disciplinary action, as set forth in Section VIII(F) of the DFWP; and
(3) A statement that an employee holding a TDP will be subject to random testing no sooner than 30 days after the date of the notice.
B. Signed Acknowledgment
Each newly hired employee will be asked to acknowledge in writing on the Form DS-7663 that:
(1) The employee has received and read the notice which states that employees holding a TDP are designated for random drug testing; and
(2) Refusal to submit to testing will result in initiation of disciplinary action, up to and including dismissal.
These acknowledgments will be centrally collected for easy retrieval by the Director General of Global Talent Management, and are advisory only. If the employee refuses to sign the acknowledgment, it should be noted on the acknowledgment form that the employee received the notice. An employee's refusal or failure to sign the notice will not preclude testing that employee, or otherwise effect the implementation of this DFWP.
C. Administrative Relief
If an employee believes his or her position has been wrongly designated as a TDP, that employee may file an administrative appeal to the DPC who has authority to remove the employee from the TDP list. The appeal must be submitted by the employee, in writing, to the DPC within 15 days of the individual notice, setting forth all relevant information. The DPC will review the appeal based upon the criteria applied in designating that employee's position as a TDP. The official's decision is final and is not subject to further administrative review.
VIII. FINDING OF DRUG USE AND DISCIPLINARY CONSEQUENCES
A. Determination
An employee may be found to use illegal drugs on the basis of any appropriate evidence including, but not limited to the following:
(1) Direct observation;
(2) Evidence obtained from an arrest or criminal conviction;
(3) A verified positive test result; or
(4) An employee's voluntary admission.
B. Mandatory Administrative Actions
An employee found to use illegal drugs will be referred to the ADAP. If the employee is performing duties requiring access to classified information, the employee's Executive Office will be responsible for ensuring that the employee is immediately removed from duties that require access to classified information without regard to whether the position is a TDP. At the discretion of the Under Secretary for Management or his or her designee and with the concurrence from the Deputy Medical Director for Mental Health Programs or his or her designee and the Bureau of Diplomatic Security, an employee may be allowed to return to duty to a sensitive position provided his or her return does not endanger public health or safety or national security.
C. Range of Consequences
Disciplinary action taken against an employee found to use illegal drugs may include the full range of disciplinary actions, up to and including removal. Moreover, the use of illegal drugs is an adjudicative factor in determining eligibility for a security clearance. The loss of security clearance may lead to an employee’s removal as she or he can no longer perform the duties of the job for which she or he was hired.
The severity of the disciplinary action taken against an employee will depend on the circumstances of each case. The Department will initiate disciplinary action (up to and including removal) against any employee found to have used illegal drugs. The only exception is for an employee who voluntarily admits to illegal drug use and refers himself or herself in accordance with Subsection VIII(F) of this DFWP.
Consistent with the requirements of any governing collective bargaining agreement and the Civil Service Reform Act and other statutes, Department orders and regulations, an employee found to have used illegal drugs will be referred for consideration of any of the following measures, including but not limited to:
(1) Reprimanding the employee in writing;
(2) Suspending the employee for 14 days or less;
(3) Suspending the employee for 15 days or more;
(4) Suspending the employee until she or he successfully completes a rehabilitation program with ADAP oversight or until the Department determines that action other than suspension is more appropriate;
(5) Reducing the employee’s pay or grade; and
(6) Removing the employee from service.
D. Initiation of Mandatory Removal from Service
The Department will initiate action to remove an employee for the following reasons:
(1) Refusal to obtain counseling or rehabilitation through ADAP after having been found to use illegal drugs; or
(2) Failure to refrain from illegal drug use after a first finding of illegal drug use.
E. Refusal to Take Drug Test when Required
An employee who refuses to be tested when so required will be subject to the full range of disciplinary action, including removal or separation.
Telecommuters are subject to the random drug testing requirements while telecommuting and must report to the testing site on the day requested. The fact that an employee is telecommuting is not a basis for refusing to be tested on the day called or for obtaining a deferral. Employees must make their own transportation arrangements to the testing site. Transportation costs to the drug-testing site for telecommuters will not be reimbursed by the Department.
Attempts to alter or substitute the specimen provided will be deemed a refusal to take the drug test when required.
F. Voluntary Self-Referral (Safe Harbor)
Under the Executive Order, the Department is required to initiate action to discipline any employee found to use illegal drugs in every circumstance except that such discipline is not required for an employee who meets all three of these conditions:
(1) Voluntarily admits his or her illegal drug use prior to being identified through other means;
(2) Obtains counseling or rehabilitation through ADAP, and;
(3) Thereafter refrains from using illegal drugs.
This self-referral option, also known as a “Safe Harbor” provision, allows any employee to step forward and identify him or herself as an illegal drug user for the purpose of entering a drug treatment program as recommended by ADAP. In stepping forward and consistent with Section XII(B) an employee may volunteer for a drug test as a means of identification. Although this self-identification test may yield a verified positive test result, such a result will not subject the employee to discipline assuming the other requirements are met. Since the key to this provision's rehabilitative effectiveness is an employee's willingness to admit his or her problem, this provision is not available to an employee who requests protection under this provision after:
(1) Being asked to provide a urine sample in accordance with this DFWP; or
(2) Having been found to have used illegal drugs pursuant to Sections VIII(A)(1) or VIII(A)(2) of this DFWP.
IX. RANDOM TESTING
A. Testing Designated Positions (TDPs) for Random Drug Testing
In accordance with the Executive Order, the Department has determined that all employees who are cleared for access to information classified at SECRET or above are “employees in sensitive positions” (i.e., TDPs) and are included in the random drug-testing program. The Department will administer drug tests to all personnel who meet the criteria described above in a program that will provide for an annual frequency of approximately 10 per cent of TDPs.
B. Factors in Designation of a TDP
Among the factors the Under Secretary for Management has considered in designating a TDP is the extent to which the Department:
(1) Considers its mission inconsistent with illegal drug use;
(2) Must foster public trust by preserving employee reputation for integrity, honesty, and responsibility;
(3) Has national security responsibilities; and
(4) Has positions which:
(a) Authorize employees to carry firearms;
(b) Grant employees access to sensitive information such as those with Secret or higher clearances;
(c) Authorize employees to engage in law enforcement;
(d) Require employees, as a condition of employment, to obtain a security clearance; or
(e) Require employees to engage in activities affecting public health or safety.
The Under Secretary for Management reserves the right to add or delete positions determined to be TDPs pursuant to the criteria established in the Executive Order and this DFWP.
C. Implementing Random Testing
In implementing the program of random testing, the DPC is responsible for the following:
(1) Ensuring that the means of random selection remains confidential; and
(2) Evaluating periodically whether the numbers of employees tested and the frequency with which those tests will be administered satisfy the Department's duty to achieve a drug-free work force.
D. Notification of Selection
An individual selected for random testing is notified by the DPM the same day the test is scheduled, preferably, within two hours of the scheduled testing. The DPM may designate individuals to assist in the notification of employees in the field offices and at overseas missions. The DPM or his or her designee explains to the employee that she or he is under no suspicion of taking drugs and that the employee's name was selected randomly. In the event the DPM or his or her designee is unable to locate and/or notify the employee, the assistance of the employee’s first and/or second line supervisors will be obtained to locate the employee and ensure that notification is provided and that the employee reports for testing as scheduled.
E. Deferral of Testing
An individual selected for random testing may seek a deferral of testing if the employee’s first line and/or second line supervisor submits written justification to the DPM that a compelling need necessitates a deferral. Examples of circumstance that may constitute a compelling need include the following:
(1) Where an employee is in a leave status (e.g., sick leave, annual leave), which was approved prior to testing notification; or
(2) Where an employee is in official travel status or training away from the workplace or is about to embark on official travel scheduled prior to testing notification.
The DPM has sole discretion for granting deferrals. Failure to appear for testing without a deferral from the DPM is considered a refusal to participate in testing and will subject an employee to the full range of disciplinary actions, including dismissal.
An employee whose random drug test is deferred will be subject to an unannounced test within the following 60 days.
X. REASONABLE SUSPICION TESTING
A. Individuals Subject to Reasonable Suspicion Testing
Reasonable suspicion testing may be required of any employee in a TDP when there is a reasonable suspicion that the employee uses illegal drugs whether on or off duty. Testing may also be required of any employee in any other position when there is reasonable suspicion of on-duty drug use and/or on-duty drug-related impairment.
B. Grounds
Reasonable suspicion testing may be based upon, but not limited to, the following:
(1) Observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;
(2) A pattern of abnormal conduct or erratic behavior;
(3) Arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking;
(4) Information as to illegal drug use provided either by reliable and credible sources or independently corroborated;
(5) Newly discovered evidence that the employee has tampered with a previous drug test; or
(6) If the employee voluntarily admits to drug use.
Although reasonable suspicion testing does not require certainty, mere "hunches" are not sufficient to meet this standard.
C. Procedures
If an employee is suspected of using illegal drugs, the employee’s supervisor, the Bureau of Diplomatic Security, or any other sources, as appropriate, may gather all information, facts, and circumstances leading to and supporting this suspicion. All evidence supporting this finding will be submitted to GTM/ER. GTM/ER will review the case to determine sufficiency of documentation supporting the reasonable suspicion. If a reasonable suspicion test appears justified, the DPM will report the circumstances that form the basis for the testing, including dates and times of reported drug-related incident(s), sources of information, etc. to the DPC who has authority to approve the testing and direct the employee to report for reasonable suspicion testing.
D. Obtaining the Sample
The employee may be asked to provide a urine sample under observation in accordance with the criteria in Section XIII(B) of this DFWP.
E. Supervisory Training
In accordance with Section IV of this DFWP, supervisors should be trained to address illegal drug use by employees, to recognize facts that give rise to a reasonable suspicion, and to document facts and circumstances to support a finding of reasonable suspicion. Failure to receive such training, however, does not invalidate otherwise proper reasonable suspicion testing.
XI. APPLICANT TESTING
A. Objective
To maintain the high professional standards of the Department's 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 Department. This will have a positive effect on reducing instances of illegal drug use by employees working within the Department, and will provide for a safer work environment.
B. Extent of Testing
The Department conducts thorough security investigations of all candidates selected for the Foreign Service and of all candidates selected for Civil Service positions requiring a security clearance of SECRET or above. The security clearance process is an effective pre-employment screening device for uncovering many problems bearing on applicant suitability (including current and/or past patterns of drug abuse) and is the Department’s primary method of preventing the employment of individuals who abuse drugs. Pre-employment drug testing will be required of all applicants for positions with either a statutory or regulatory requirement for pre-employment drug testing (e.g., drivers and pilots) and/or for positions which may be designated at the discretion of the Under Secretary for Management as particularly sensitive because of the nature of the work (e.g., positions involving law or drug enforcement).
C. Vacancy Announcements
Every vacancy announcement for positions designated for applicant testing will state the following:
"All applicants conditionally selected for this position will be required to submit to screening for illegal drug use prior to appointment."
In addition, as appropriate, the prospective applicant will be notified that the appointment to the position will be contingent upon a negative drug test result. Failure of the vacancy announcement to contain this notice will not preclude applicant testing if advance written notice is provided to applicant in some other manner.
D. Procedures
The DPM will direct applicants to an appropriate collection facility. The drug test must be undertaken as soon after notification as possible, and normally within 48 hours of notification.
Applicants will be advised of the opportunity to submit medical documentation that may support a legitimate use for a specific drug and that such information will be reviewed only by the MRO to determine whether the individual is legally using an otherwise illegal drug.
E. Consequences
The Department will decline to extend a final offer of employment to any applicant with a verified positive result, and such applicant may not reapply to the Department for a period of six months. The Department will inform the applicant that a confirmed presence of an illegal drug in the applicant’s urine precludes the Department from hiring the applicant.
XII. ADDITIONAL TYPES OF DRUG TESTING
A. Accident or Unsafe Practice Testing
The Department is committed to providing a safe and secure working environment. It also has a legitimate interest in determining the cause of serious accidents so that it can undertake appropriate corrective measures. Post-accident drug testing can provide invaluable information in furtherance of that interest. Accordingly, employees may be subject to testing when, based upon the circumstances of the accident or unsafe practice, their actions are reasonably suspected of having caused or contributed to an accident or unsafe practice that meets either of the following criteria:
(1) The accident or unsafe practice results in a death or personal injury requiring immediate hospitalization, or;
(2) The accident or unsafe practice results in damage to U.S. government and/or private property estimated to be in excess of $10,000.
If an employee is suspected of having caused or contributed to an accident or unsafe practice meeting either of the above criteria, the appropriate supervisor will present the supporting facts and circumstances to the Director of Safety Programs for investigation. The Director of Safety Programs will report his or her findings to the DPM. If appropriate, arrangements will be made by the DPM for testing. The Director of Safety Programs will be instructed to prepare a written report detailing the facts and circumstances that warranted the testing.
B. Voluntary Testing
In order to demonstrate their commitment to the Department’s goal of a drug-free workplace and to set an example for other federal employees, employees not in TDPs may volunteer for unannounced random testing by notifying the DPM. These employees will then be included in the pool of TDPs subject to random testing, and be subject to the same conditions and procedures, including the provisions of Section VIII(F) of this DFWP. Volunteers will remain in the TDP pool until the employee withdraws from participation by notifying the DPM of such intent at least 48 hours prior to a scheduled test.
C. Follow-up Testing
All employees referred through administrative channels who undergo a counseling or rehabilitation program for illegal drug use through ADAP will be subject to unannounced testing for a period of at least one year as stipulated in an abeyance agreement. Such testing is in addition to any testing that may be imposed as a component of the rehabilitation program.
XIII. TEST PROCEDURES IN GENERAL
A. Mandatory Guidelines for Federal Workplace Drug Testing
The Department must adhere to the Mandatory Guidelines for Federal Workplace Drug Testing Programs promulgated by HHS consistent with the authority granted by the Executive Order and to the requirements of Section 503 of the Act. The Department’s DFWP will have professionally trained collection personnel, quality assurance requirements for testing procedures, and strict confidentiality requirements.
B. Privacy Protections
Any individual subject to testing under this DFWP will be permitted to provide urine specimens in private, and in a restroom stall or similar enclosure, so that the individual is not observed while providing the sample. Collection site personnel of the same gender as the individual tested, however, may observe the individual providing the urine specimen when such personnel have reason to believe the individual may alter or substitute the specimen to be provided, as described in detail in the Mandatory Guidelines (see Subpart H).
C. Failure to Appear for Testing
Failure to appear for testing without an approved deferral from the DPM will be considered refusal to participate in testing, and will subject an employee to the full range of disciplinary actions, including dismissal. If an individual fails to appear at the collection site at the assigned time, the collector will contact the DPM to obtain guidance on what action should be taken.
D. Opportunity to Justify Positive Test Result
When a confirmed, positive result has been received by the laboratory, the MRO will give the donor an opportunity to discuss the test result with him or her. The MRO must review all medical records made available by the tested employee when a confirmed positive test could have resulted from legally prescribed medication. Evidence to justify a positive result may include, but is not limited to the following:
(1) A valid prescription, recognized by federal law; or
(2) A statement from the individual's physician verifying a valid prescription recognized by federal law.
Following verification of a positive test result, the MRO reports the result to the DPM.
E. Employee Counseling and Assistance
While participating in a counseling or rehabilitation program, and at the request of the program, the employee may be exempted from the random testing designated pool for a period not to exceed 60 days, or for a time period specified in an abeyance contract or rehabilitation plan approved by the DPM. Upon completion of the program, the employee immediately will be subject to follow-up testing pursuant to Section XII(C) of this DFWP.
F. Savings Clause
To the extent that any of the procedures specified in this section are inconsistent with any of those specified in the guidelines promulgated by HHS, or any subsequent amendment thereto, such HHS guidelines or amendment will supersede the procedures specified in this section, but only to the extent of the inconsistency.
XIV. RECORDS AND REPORTS
A. Confidentiality of Test Results
The laboratory may disclose confirmed laboratory test results only to the MRO or the staff of the MRO. Any positive result, which the MRO justifies by appropriate medical or scientific documentation to account for the result as other than the intentional ingestion of an illegal drug, will be treated as a negative test result and may not be released for purposes of identifying illegal drug use. Test results will be protected under the provisions of the Privacy Act, 5 U.S.C. 552a and Section 503(e) of the Act, and may not be released in violation thereof. The MRO may maintain only necessary records. Any records of the MRO, including drug test results, may be released to any management official for purposes of auditing the activities of the MRO, except that the disclosure of the results of any audit may not include personally identifying information on any employee.
In order to comply with Section 503(e) of the Act, the results of a drug test of a Department employee may not be disclosed without the prior written consent of such employee, unless the disclosure would be to the following:
(1) The MRO;
(2) The DPM;
(3) The Director of ADAP in which the employee is receiving counseling or treatment or is otherwise participating;
(4) Any management official within the Department having authority to take adverse personnel action or other administrative action against such employee; or
(5) Pursuant to the order of a court of competent jurisdiction where required by the U. S. government to defend against any challenge against any adverse personnel action.
For purposes of this Section, “management official” includes any management, government, security, law enforcement, legal or personnel official whose duties necessitate review of the test results in order to process an adverse personnel action against the employee. In addition, test results with all identifying information removed will also be made available to Department personnel, including the DPC, for data collection and other activities necessary to comply with Section 503(f) of the Act.
B. Employee Access to Records
Any employee who is the subject of a drug test will, upon written request, have access to any records relating to the following;
(1) Such employee's drug test; and
(2) The results of any relevant certification, review, or revocation-of-certification proceedings, as referred to in Section 503(a)(1)(A)(ii)(III) of the Act.
An applicant who is the subject of a drug test, however, will not be entitled to this information, except as authorized by law.
C. Confidentiality of Records in General
All drug testing information specifically relating to individuals is confidential except as set forth in this DFWP and should be treated as such by anyone authorized to review or compile program records. In order to efficiently implement this DFWP and to make information readily retrievable, the DPM maintains all records relating to reasonable suspicion testing, suspicion of tampering evidence, and any other authorized documentation necessary to implement the Executive Order.
All records and information relating to the personnel actions taken on employees with verified positive test results should be forwarded to the DPM. Such records remain confidential except as set forth in this DFWP, and will be locked in a combination safe, with only authorized individuals who have a “need-to-know” having access to them.
D. Program Records
(1) Drug-Free Workplace Program officials maintain only those records that are necessary to comply with this DFWP;
(2) ADAP officials will maintain confidential records of medical or rehabilitation information related to the employee’s drug abuse, including the identity of patients, diagnosis, prognosis, or treatment in a manner that is consistent with 42 CFR Part 2; and
(3) Treatment records maintained by ADAP may be released when the individual gives written consent, or as otherwise provided in 16 FAM 430. Written consent will indicate the office or person to whom records may be given and the purpose of the release. By giving written consent, the patient may authorize the disclosure of records to the patient’s employer for verification of treatment or for a general evaluation of treatment progress.
E. Maintenance of Records
The DPM, MRO, ADAP, and GTM/ER maintain records related to the Department’s DFWP consistent with the Department’s Privacy Act System of Records Notices and with all applicable federal laws, rules, and regulations regarding confidentiality of records including the Privacy Act, 5 U.S.C. 552a. If necessary, records may be maintained as required by subsequent administrative or judicial proceedings, or at the discretion of the Under Secretary for Management. The recordkeeping system should capture sufficient documents to meet the operational and statistical needs of the Executive Order, and should include:
(1) Notices of verified positive test results referred by the MRO;
(2) Written materials justifying reasonable suspicion testing or evidence that an individual may have altered or tampered with a specimen;
(3) Anonymous statistical reports; and
(4) Other documents the DPM, DPC, MRO or ADAP Director deems necessary for efficient compliance with the Executive Order.
F. Records Maintained by U.S. Government Contractors
Any contractor hired to satisfy any part of this DFWP will comply with the confidentiality requirements of this Executive Order and all applicable federal laws, rules, regulations and guidelines.
G. Statistical Information
The DPM collects and compiles anonymous statistical data for reporting the number of the following:
(1) Random tests, reasonable suspicion tests, accident or unsafe practice tests, follow-up tests, or applicant tests administered;
(2) Verified positive test results;
(3) Voluntary drug counseling referrals;
(4) Involuntary drug counseling referrals;
(5) Terminations or denial of employment offers resulting from refusal to submit to testing;
(6) Terminations or denial of employment offers resulting from alteration of specimens;
(7) Terminations or denial of employment offers resulting from failure to complete a drug abuse counseling program; and
(8) Employees who successfully complete a course of rehabilitation or substance abuse treatment.
This data, along with other pertinent information, is compiled for inclusion in the Department’s annual report to Congress required by the Act. This data will also be provided to HHS on an annual basis to assist in overall program evaluation and to determine whether changes to the Mandatory Guidelines for Federal Workplace Drug Testing Programs may be required.
XV. LIST OF POSITIONS DESIGNATED FOR RANDOM TESTING
Section 3(a) of Executive Order 12564 of September 15, 1986 requires each Executive agency to establish a program to test for the use of illegal drugs by employees in sensitive positions. The term “employee in a sensitive position” includes: 1) an employee in a position that is designated as sensitive; 2) an employee who has been or may be granted access to classified information; 3) individuals serving under Presidential appointments; 4) law enforcement officers as defined in 5 U.S.C. 8331(20); and 5) other positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.
The Department of State is the Executive agency responsible under the direction of the President for conduct of the foreign affairs of the United States, including diplomatic and consular establishments abroad. The sensitivity of the agency’s operations are such that most agency personnel, including clerical and support staff, have regular access to classified materials, and their positions are designated as sensitive. These designations are not nominal or erroneous, but accurately reflect the nature of the duties performed, the access to sensitive matters involved in performance, or both. In accordance with the Executive Order, the Department has determined that all Foreign Service career and career-conditional personnel and Civil Service personnel who have been cleared to access material classified at SECRET or above, should be included in the random drug testing program.
A complete list of all TDP positions by job series number, title, job duties, and justification, is available to review in the Office of Employee Relations (GTM/ER) in Room 236 of SA-1. The list reflects the positions at a given point in time, and although the Department strives to ensure the list remains updated over time, the absence of a specific position from the list or a change in duties for a position does not necessarily mean that position is not a TDP under the terms of the DFWP.