Note: The provisions of the Drug-Free Workplace Act (DFWA) are separate from and in addition to the FTA Drug and Alcohol Testing Program. Specific requirements of the Drug and Alcohol Testing Program are discussed in Section 21 of this handbook.

Areas To Be Examined

Publication and distribution of a written policy on substance abuse that notifies employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace
Establishment of an on-going, drug-free workplace
Establishment of an employee education program that informs the employees of the dangers of drug abuse and about the possible penalties for drug abuse violations.
Requirement that each employee notify a grantee within five days of any criminal drug statute conviction for a violation occurring in the workplace.
Requirement that a grantee will notify the FTA within ten days of receiving notification from the employee.
Requirement that within 30 days following a conviction, a grantee will impose sanctions on the employee. The sanctions include (1) appropriate personnel action or (2) the employee's satisfactory participation in a rehabilitation program.

References

49 USC Sections 702 et seq., Drug-Free Workplace Act (DFWA) of 1988.
49 CFR Part 32, "Governmentwide Requirements for a Drug-free Workplace (Grants)."

QUESTIONS FOR THE REVIEW

Has the grantee established a drug-free workplace according to the requirements of the Drug-Free Workplace Act (DFWA)?

Does a written policy exist as prescribed in the DFWA and has it been distributed to all employees?
Does the policy:
1. Notify employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace?
2. Notify employees that they must abide by the terms of the policy statement as a condition of employment?
3. Notify employees that, if convicted of a drug statute violation occurring in the workplace, they are to report such to the employer in writing no later than five days after such a conviction?
Explanation

The answers to these questions determine whether the grantee is complying with the DFWA. The grantee is required to provide a written policy that the workplace is drug-free and that the unlawful, manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace. The grantee must notify employees that they must abide by the terms of the policy statement as a condition of employment. The grantee is required to inform all employees that, if convicted of a drug statute violation occurring in the workplace, they are to report it to the employer in writing no later than five calendar days after such a conviction. The DFWA policy can be in the FTA Drug and Alcohol Testing Policy as long as it is clearly differentiated and its applicability is extended to all employees, not just safety-sensitive employees.

Note that DFWA requirement applies to employees of a recipient directly engaged in the performance of work under the grant, including both direct and indirect charge employees as well as temporary employees on the recipient’s payroll. If an indirect charge employee’s impact or involvement in the performance of work under the award is insignificant to the performance of the award, then the requirements do not apply to that employee. The requirements do not apply to volunteers, consultants or independent contractors not on the grantee’s payroll, or employees of subrecipients or subcontractors in covered workplaces. These requirements should not be confused with the FTA Drug and Alcohol Testing Program, which applies only to “safety sensitive” employees as well as contractors and subcontractors with safety sensitive employees.

Reason for the Question

49 CFR Part 32, Subpart F, Appendix C

Sources of Information

Minutes or resolutions of policy boards can show the adoption of a drug-free workplace policy. A copy of the written policy, memoranda, notifications on bulletin boards, employee handbooks, and letters sent to employees are all potential sources of information to show that the grantee has notified its employees. Some employers may have had employees sign statements that they have received such notification.

Determination

If the grantee has a written policy and has provided written notification to all of its employees, the grantee is not deficient. If the grantee has not implemented these requirements, the grantee is deficient. If the grantee does not have a written policy, the grantee is deficient. If the grantee has a policy, but the policy does not stipulate the specific requirements of the DFWA, the grantee has not provided written notification to its employees, has not included all employees, has not informed employees that adherence to the policy is a condition of employment, has not informed employees of the criminal drug statute violation time frames, or has other omissions in its policy, the grantee is deficient.

Suggested Corrective Action

The grantee needs to develop a written policy that includes all the required elements.

Back to Questions
Has the grantee established an ongoing drug-free awareness program?
Has the grantee informed employees of the dangers of drug abuse and any available drug counseling, rehabilitation, and employee assistance programs?

Explanation

In addition to establishing and maintaining a drug-free workplace environment, a grantee must establish an ongoing drug-free awareness program that informs employees about the dangers of drug abuse, and any available drug counseling, rehabilitation, and employee assistance programs.

Reason for the Question

49 CFR Part 32, Subpart F, Appendix C

Sources of Information

The written policy, employee handbooks, brochures, posters and other information on bulletin boards, employee assistance program information, and other material distributed to employees provide the basic sources of information for answering these questions. This information can be distributed periodically and on a general basis to all employees. In some cases, grantees may rely on an employee assistance program to provide drug-free awareness information. This procedure is acceptable, provided the material includes a drug-free workplace message.

Determination

If the grantee periodically informs employees about the dangers of drug abuse in the workplace, the grantee’s policy on drug-abuse, the opportunities for assistance, and the penalties, the grantee is not deficient. If the grantee has not given such information to the employees, the grantee is deficient. If the grantee has provided such information in the past (e.g., two years ago) but has not provided information on a consistent basis, the grantee is deficient.

Suggested Corrective Action

The grantee needs to implement an ongoing drug-free awareness program, inform employees of the dangers of drug abuse and any available drug counseling, rehabilitation, and employee assistance programs.

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Has any employee reported to the grantee a criminal conviction for a drug statute violation that occurred in the workplace? If yes, was such notice timely?
Did the grantee provide the FTA timely notice of the conviction? What action was taken against personnel that reported such a conviction?

Explanation

When the grantee receives notice of an employee’s criminal conviction for a drug statute violation that occurred in the workplace, the grantee has ten calendar days within which to report the conviction to the FTA Regional Counsel. Grantees must provide the individual’s position title and the grants in which the individual was involved. Further, the grantee must take one of the following actions within 30 days of receiving notice of such a conviction: 1) take appropriate personnel action up to and including termination, consistent with the Rehabilitation Act of 1973, as amended; or 2) require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes.

Reason for the Question

49 CFR Part 32, Subpart F, Appendix C

Sources of Information

Files should be examined to determine if any report of a conviction has been made by the employee to the grantee and subsequently by the grantee to FTA.

Determination

If the grantee has informed employees of the criminal drug statute violation time frames and states that no convictions have occurred and no reports have been made, the grantee is not deficient. If the grantee has reported a conviction within the proper time frames, the grantee is not deficient. If the grantee has reported a conviction, but not within the appropriate time frames, or has taken personnel actions, but not within the appropriate time frames, the grantee is deficient. If the grantee states that a conviction has occurred, but did not notify FTA or take appropriate personnel actions, the grantee is deficient.

Suggested Corrective Action

The grantee needs to report outstanding convictions to FTA, and/or take appropriate personnel actions within 30 days.

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