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Considerations for Safety and Security-sensitive Industries

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Federal agencies have established specific drug-testing requirements for industries that perform public safety and national security roles.

Employers and employees in such industries are subject to drug-testing requirements from the Department of Transportation (DOT), Department of Defense (DOD), and Nuclear Regulatory Commission (NRC).

Under Executive Order 12564, all federal employees involved in "law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust" are subject to mandatory drug testing.

Most state and local law enforcement officers and emergency service providers are also required to undergo drug testing. However, the laws and regulations affecting these tests vary from state to state and agency to agency. There is not currently a uniform federal requirement for drug testing for non-federal "first responders."

Safety-sensitive Industries

Department of Transportation Rules and Regulations

The Omnibus Transportation Employee Testing Act of 1991 is the most important piece of federal legislation affecting safety-sensitive industries. The act requires drug and alcohol testing of all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.

Any employer whose business is regulated by one of the following federal agencies and organizations is covered under the act:

Core Requirements for the Transportation Industry

Although each of the above agencies has developed its own specific guidelines and procedures for complying with the Omnibus Transportation Employee Testing Act, the following core requirements apply to all employers and employees within the transportation industry:

  1. Employers are required to test safety-sensitive employees at certain points. These points include pre-employment (as a new hire or before the employee begins safety-sensitive functions for the first time) and whenever there is "reasonable cause or suspicion" that an employee has been involved in the use of or is under the influence of drugs or alcohol at work. Tests are also required immediately after an employee is involved in an accident and before allowing an employee to return to duty following a testing violation.
  2. Employers are also required to have a program of random drug testing in place.
  3. All drug testing conducted under the Omnibus Transportation Employee Testing Act must be carried out by a certified laboratory listed by the Department of Health and Human Services (HHS).
  4. All drug testing conducted under the act must test for five different classes of drugs: marijuana metabolites, cocaine metabolites, amphetamines, opioid metabolites, and phencyclidine (PCP).
  5. All alcohol testing of employees must strictly adhere to DOT's policies and procedures for alcohol testing. The testing must be conducted using devices and equipment approved by DOT.
  6. All tests must be reviewed by a qualified medical review officer. Employees must be allowed to consult with this officer before the test result is reported to the employer.
  7. All employees, whether in safety-sensitive positions or not, must receive drug and alcohol awareness training and education.
  8. All supervisors must receive at least two hours of training in substance use detection, documentation, and intervention. Half of this training time should be devoted to drug use, and the other half to alcohol use.
  9. The employer must refer any employee found to have a substance use problem to a trained substance abuse professional. This professional will be responsible for evaluating the employee's treatment needs and assessing the employee's ability to return to work.

Employers who are subject to the requirements of the Omnibus Transportation Employee Testing Act must ensure that their policies and procedures strictly adhere to DOT's requirements. Otherwise, employers run the risk of failing to comply with the act or violating their employees' civil liberties.

Security-sensitive Industries

Department of Defense Rules and Regulations

For contractors working in the national security arena, the Department of Defense (DOD) has developed its own set of regulations, Drug-Free Workplace, 42 Code of Federal Regulations (CFR) 223.5. Under these regulations, all DOD contractors with access to sensitive, classified information must maintain a drug-free workplace policy that includes the following:

  • A comprehensive employee assistance plan (EAP), including coordination with local community service providers and resources
  • Provision for self-referrals and supervisory referrals for drug treatment
  • Supervisory training on detecting and responding to illegal drug use
  • A carefully controlled and monitored employee drug testing policy. This testing policy should include provisions for testing when there is reasonable suspicion that an employee has been involved in illegal drug use, when an employee has been involved in an accident or unsafe practice, as part of a program of counseling or rehabilitation, and as part of a voluntary employee drug testing program.

DOD regulations also require covered contractors to ensure that their drug-testing policies are consistent with applicable state laws and that any relevant labor unions agreed to the policies.

Nuclear Regulatory Commission (NRC) Rules and Regulations

NRC is an independent agency created by Congress. It regulates commercial nuclear power plants; fuel cycle facilities; uranium recovery sites; and medical, academic, industrial, and general licensees of nuclear materials. As part of its fitness-for-duty (FFD) programs, NRC requires certain nuclear facilities to ensure that employees are not under the influence of any substance, legal or illegal, that may impair their ability to perform their duties.

Fitness for Duty Programs, 10 Code of Federal Regulations (CFR) 26, also known as Part 26, prescribes requirements and standards for the establishment, implementation, and maintenance of FFD programs. Licensees who operate, maintain, or construct commercial nuclear power plants; licensees and other entities who possess, use or transport strategic special nuclear material; and certain contractors and vendors must implement FFD programs.

All FFD programs must meet all of the following performance objectives:

  • Provide reasonable assurance that individuals are trustworthy and reliable as demonstrated by the avoidance of substance abuse
  • Provide reasonable assurance that individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties
  • Provide reasonable measures for the early detection of individuals who are not fit to perform the duties that require them to be subject to the FFD program
  • Provide reasonable assurance that the workplaces subject to this part are free from the presence and effects of illegal drugs and alcohol
  • Provide reasonable assurance that the effects of fatigue and degraded alertness on individuals’ abilities to safely and competently perform their duties are managed commensurate with maintaining public health and safety

To meet the performance objectives, the FFD program shall include, but is not limited to:

  • Policies and procedures that implement the FFD program and audits that verify key performance requirements
  • A training program that periodically instructs and tests all individuals on the FFD program and its program elements
  • Drug and alcohol testing as means to deter and detect substance abuse and to identify individuals who cannot be trusted and relied upon due to their possession, use, or sale of illicit drugs or alcohol, or subversion of the drug-testing program
  • Behavior observation to be performed by all individuals who are subject to Part 26 to detect behaviors that may indicate possible use, sale, or possession of illegal drugs; use or possession of alcohol on site or while on duty; or impairment from fatigue or any cause that, if left unattended, may constitute a risk to public health and safety or the common defense and security
  • Employee assistance programs that offer confidential assessment, short-term counseling, referral services, and treatment monitoring to individuals who have problems that could adversely affect the individuals' abilities to safely and competently perform their duties
  • Sanctions that either temporarily or permanently remove individuals from NRC-licensed facilities when they have violated the licensee’s FFD policy

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