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Blog Author Angelique Sanders

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Monday, March 12, 2012

Drug-Free Workplace Act: Compliance Tips

Guest Article by:

The Drug-Free Workplace Act (DFWA) requires covered employers and contractors to certify that they are maintaining a drug-free workplace. The DFWA deals with such issues as how the law requires employers to conduct drug testing; what employers must include in drug-free workplace policies; and steps that must be taken for notifying employees and government agencies about their drug-free strategies.

The DFWA requires that federal agency contractors and employers receiving federal grants of $25,000 or more certify that they are maintaining a drug-free workplace.  While the law itself does not mandate or authorize drug testing, it requires covered contractors and employers to report drug-related criminal convictions to the contracting or grant agency within 10 days after the employer learns of the conviction.

Coverage

The DFWA covers all organizations receiving procurement contract awards of $25,000 or more for a single contract, all contracts awarded to individuals, and all recipients of federal grants, regardless of grant size.

Requirements

Contractors and employers that are subject to the law must provide a drug-free workplace through these actions.
  1. Publish a policy statement notifying employees of a prohibition against the unlawful manufacture, distribution, dispensation, possession, or use of controlled substances in the workplace, and specify what action will be taken against employees for violating the policy.
  2. Provide each employee with a copy of the policy.
  3. Establish an ongoing drug-free awareness program that informs employees of: the dangers of drug abuse; the contractor’s drug-free workplace policy; penalties for policy violations; and any available drug counseling, rehabilitation, or assistance programs.
  4. Inform all employees in writing that, as a condition of employment on a covered contract, they must abide by the terms of the drug-free workplace policy statement and notify the company of any conviction for a workplace violation of any criminal drug statute within five calendar days after the conviction.
  5. Notify the contracting agency, in writing, of any employee conviction for a criminal drug offense occurring in the workplace.  The notification must be provided within 10 calendar days after the employer learns about the conviction, whether the notice comes from the employee or otherwise.
  6. Impose sanctions on, or initiate remedial measures for, any employee convicted of a workplace violation of a criminal drug statute.  A contractor may choose appropriate personnel action, up to and including discharge, or refer the worker to an approved drug assistance and rehabilitation program.  Disciplinary or remedial action must be taken within 30 calendar days after receiving notice of the employee’s conviction.
  7. Make a good faith effort to maintain a drug-free workplace.

Key definitions

Controlled substances include any substance listed in Schedules I through V of the Federal Controlled Substances Act.
A conviction is the finding of guilt (including a “no-contest” plea), or the imposition of a sentence, or both, by any judicial body charged with the responsibility for determining violations of federal or state criminal drug statutes.

A criminal drug statute is one that involves the manufacture, distribution, dispensing, possession, or use of a controlled substance.

A drug-free workplace is a site for the performance of work done by the contractor in connection with a specific contract where employees of the contractor are barred from unlawfully manufacturing, distributing, dispensing, possessing, or using a controlled substance.

High-risk or safety-sensitive positions are jobs that affect public safety or the well-being of other employees.

Employers may have a reasonable suspicion based on particular factors, such as attendance, which can justify testing employees for drugs.  Individuals with drug abuse problems are frequently late and absent on Mondays and Fridays, and the days before and after a holiday.

Key areas of concern

Employers are subject to a number of sanctions for failing to meet the requirements of the DFWA.  They risk the suspension of payments or the termination of the contract, or both, if they:
  • fail to discipline employees who violate the law or impose inconsistent penalties;
  • fail to require employees to sign a statement acknowledging receipt of the company’s drug-free policy and agreeing to abide by its terms as a condition of employment;
  • falsely certify that they will provide a drug-free workplace;
  • violate the certification by failing to comply with the requirements of the law; or
  • report such a large number of employees who have been convicted of illegal workplace drug activity that it appears that there has not been a good faith effort to provide a drug-free workplace.
Failure to comply with the law’s requirements also can lead to debarment from participation in future contract or grant activity.  If debarment proceedings are instituted and a final decision is made to debar an employer, the contractor, individual, or grantee may not receive any federal contract or grant or participate in the federal procurement process for a period of up to five years.

Record-keeping requirements

Employers should maintain a comprehensive documentation procedure for compiling drug test results, reports on drug-related accidents or incidents, disciplinary procedures, reports of witnesses, and rehabilitation agreements.  Managers should also make written records of all times, dates, and circumstances concerning each instance of unsatisfactory work performance, absence, or lateness for employees suspected of drug or alcohol problems.

Employers must keep records that are required by other federal laws which offer protection to employees who are addicted to drugs or alcohol.  For example, the Americans with Disabilities Act (ADA) offers protection to recovered or recovering addicts.  Thus, employers must keep records of any reasonable accommodations that are offered to employees covered by the ADA.

All such records should be classified as extremely confidential and kept in a locked file separate from the employee’s normal personnel folder.  Only those managers with a definite need to know should be given access to this information.  Employees should be asked for their consent before test results are released to anyone else.  If the employee is to be referred to a treatment facility for evaluation, the test results should be made available to the counselor.  Violations are considered an invasion of privacy and may risk exposing the company to liability.

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posted by Steve Hudgik
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2 Comments:

Anonymous Workforce Development Program said...

The work of BPW Foundation supports workforce development programs and workplace policies that recognize the diverse needs of working women, communities and businesses. the mission is to create create successful workplaces for women, their families and employers.

2:34 AM  
Blogger SteelFabCorp said...

Drugs, including alcohol, are a danger when working, driving or doing anything else. Why aren't we doing more about this problem? Something needs to be done to cut the demand.

5:33 AM  

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