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