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3 CHAPTER TWO BACKGROUND President Ronald Reagan initiated a program by executive order, ensuring that appropriate coverage for drug abuse order (Executive Order No. 12564, 1986) toward achiev- was maintained for employees and their families, develop- ing drug-free workplaces in the federal government by ing a model EAP for federal agencies, developing training offering drug users a helping hand and, at the same time, programs for federal supervisors on illegal drug use, and demonstrating to drug users and potential drug users that mounting an intensive drug awareness campaign through- drugs would not be tolerated in the federal workplace. The out the federal workforce. program required federal employees to refrain from the use of illegal drugs, on duty or off duty. It assigned the In 1988, the Secretary of DHHS, as required by Executive responsibilities for developing specific plans for achiev- Order 12564, published the mandatory guidelines for fed- ing a drug-free workplace to each executive agency. Each eral workplace drug testing, which set scientific and techni- agency's plan had to include a statement of policy, an cal standards for drug testing of federal employees and for employee assistance program (EAP), supervisory training, certification of drug-testing laboratories (DHHS Mandatory provisions for self-referrals, and provisions for identifying Guidelines for Federal Workplace Drug-Testing Programs, illegal drug users. 53 Fed. Reg. 11,970, proposed Apr. 11, 1988). Those manda- tory guidelines have since been updated and revised (DHHS The head of each executive agency was to allow four Mandatory Guidelines for Federal Workplace Drug-Testing types of testing programs for (1) detection of illegal drug use Programs, 59 Fed. Reg. 29,908, proposed June 9, 1994; 63 by employees in sensitive positions; (2) voluntary employee Fed. Reg. 63,483, proposed Nov. 14, 1998; 69 Fed. Reg. drug testing; (3) suspicion of illegal drug use following an 19,644, proposed Apr. 13, 2004; 73 Fed. Reg. 71,858, pro- accident or unsafe practice, or as part of a follow-up for posed Nov. 25, 2008). The 2008 guidelines went into effect counseling or rehabilitation for illegal drug use; and (4) the October 1, 2010 (75 Fed. Reg. 22,809). detection of illegal drug use by federal job applicants. The mandatory guidelines establish workplace drug test- A general outline was provided for drug-testing proce- ing as an education and deterrent program and do not include dures, including the need to inform the employee to be tested alcohol and prescription drugs (Bush 2007). Components of the opportunity to submit medical documentation that of a comprehensive drug-free program are a formal written may support a legitimate use for a specific drug; the need for policy, employee assistance, supervisor training, employee retention of records and specimens, retesting, and employee education, and drug testing for detecting illicit drug users. confidentiality; procedures for providing a balance between In general, the guidelines address the collection and testing safeguarding the privacy of the individual being tested and of urine specimens, the requirements for certification of the the need to obtain a valid specimen, without alteration or testing facilities, and the role and standards for collectors substitution; and authorized the Secretary of the Department and medical review officers. Six major changes occurred of Health and Human Services (DHHS) to promulgate sci- from the 2004 to 2008 guidelines: revised requirements for entific and technical guidelines for drug-testing programs. specimen collection, standards for collectors and collection sites, revised laboratory testing requirements, new technol- The outline also specified personnel actions in the event ogies for confirmatory drug testing, new types of testing that an employee was found to use illegal drugs, including facilities, and revised standards for medical review officers. referrals to treatment and rehabilitation, temporary removal As discussed later, the Office of the Secretary of Transporta- from sensitive positions, and termination. It required that tion (OST) amended certain provisions of its current drug- positive test results be confirmed by a second analysis of testing procedures to create consistency with the new DHHS the same sample, and it defined the administrative and legal mandatory guidelines. ramifications of drug testing. The DHHS guidelines require that each specimen be The coordination of agency programs was delegated tested twice. The initial test is used to differentiate a negative to the director of the Office of Personnel Management, specimen from one that requires further testing for drugs or who was held responsible for implementing the executive drug metabolites. The confirmatory drug test is performed
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4 on a different aliquot of the original specimen to identify and The U.S.DOT implemented its own drug-testing program quantify the presence of a specific drug or drug metabolite. (DOT Procedures for Transportation Workplace Drug and The two tests are based on different analytical techniques. Alcohol Testing Programs, 40 CFR, Part 40, 1989). The DOT drug-testing program is based exclusively on urine testing. It In the 2004 proposed guidelines, DHHS proposed the use incorporates the DHHS scientific and technical guidelines. of alternative specimens (hair, oral fluid, sweat) for federal The DOT alcohol-testing program is based on breath and employee drug testing. In the 2008 guidelines, DHHS rec- saliva testing. For each transportation mode (i.e., aviation, ognized that the addition of alternative specimens would be maritime, motor carriers, pipelines, public transit), DOT has useful in complementing urine drug testing but that impor- an agency required to define which classes of employees are tant areas of concern remained and that additional study and subject to testing. analyses were required, effectively postponing the use of alternative specimens.