Do you have a drug-free workplace policy in place? Until 2010, the Department of Labor (DOL) enforced the drug-free workplace program, under the authority of the Drug-Free Workplace Act of 1988. This statute requires federal contractors with contracts of at least $100,000 and all federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency. The policy does not apply to subcontractors and subgrantees. But if the enforcement agency isn’t enforcing it, do federal contractors still need to have a policy? Should they? Is it even permissible?
The Drug-Free Workplace Act (DFWA) of 1988 requires federal contractors to provide a drug-free workplace by taking the following steps:
- Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.
- Establish a drug-free awareness program to make employees aware of: a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
- Notify employees that as a condition of employment on a federal contract or grant, the employee must: a) abide by the terms of the policy statement; and b) notify the employer, within five calendar days, if he or she is convicted of a criminal drug violation in the workplace.
- Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
- Impose a penalty on—or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.
- Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.
The DFWA requires federal contractors to certify that they will provide a drug-free workplace. Though drug testing is not required, it is implicitly authorized. A contractor that fails to comply with the DFWA may be subject to one or more of the following consequences:
- Payments for contract may be suspended.
- Contract may be suspended or terminated.
- Contractor may be prohibited from receiving or participating in any future contracts awarded by any federal agency for a specified period, not to exceed five years.
Under the DFWA, the Department of Labor is charged with enforcement. In 2010, DOL suspended enforcement, leaving federal contractors in a quandary. Many states have laws that limit the conditions under which an employer may require drug screening of existing employees, unless it can cite safety, business necessity, or response to a reasonable suspicion of drug use. Thus, local laws may prohibit the drug screening implicitly required by the DFWA.
When federal and state statutes are in conflict, the federal statute wins. But in this case, the federal law is not being enforced. Thus, it appears that there would not be any federal consequences for noncompliance with the DFWA. However, the DFWA has not been rescinded, and under the new administration, enforcement could be reinstated with the swipe of a pen. It is important to know what your state regulations require. If you have a location in a state with local laws that conflict with the DFWA, consult outside counsel before dismantling (or implementing) your drug-free workplace program.
Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © Schuyler Affirmative Action Practice 2017.