Drug-free Workplace

Angela Livingston
Angela Livingston
Of course you want your employees and workplace to be drug-free, and your employee handbook should present your expectations and policies around drug use. But companies who contract with federal agencies are legally bound to comply with the Drug-free Workplace Act of 1988. Read on to learn how to do so.

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What Is the  Drug-free Workplace Act?

If your company receives federal grants or at least $100,000 in federal contracts, you must comply with the Drug-free Workplace Act of 1988.  The act is perhaps the most straightforward of all employment laws, as the entire law is only a little over three pages long. In addition to drug use, the Act addresses employees’ manufacturing, selling, distributing, and possessing drugs in the workplace.

What Are the Benefits of a Drug-free Workplace?

While the Drug-free Workplace Act provisions may cut down on drug use/abuse, it certainly is not strong enough to eliminate the issue. Still, there are benefits to adhering to the Drug-Free Workplace Act.

  • Status. If you want to be a federal contractor or grantee, this is one of the requirements.
  • Safety. Inebriated employees are a danger to themselves and others through diminished decision-making and cognitive responses, and potentially through physical action (for instance, if balance is affected, there could be a fall).
  • Liability. Helping to keep your workforce safe is good risk management.
  • Employee wellbeing. While it is not in the scope of this article to discuss medical marijuana, employees who are not abusing substances are generally happier, healthier, more productive employees.

Components of a Drugfree Workplace

Compliance with the act is composed of four parts.

Part 1: Publish a Statement

The act requires employers subject to it to publish a statement that prohibits the unlawful use of drugs in the workplace, including:

  • Manufacture
  • Sale
  • Distribution
  • Possession
  • Use

It also must:

  • State that abiding by the rules of the drug-free workplace is a condition of employment.
  • Outline the company’s drug-free awareness program (see Part 2).
  • Require employees to report any criminal drug statute conviction for a violation occurring in the workplace no later than five days after conviction (see Part 3).
  • Specify the actions that will be taken in the event of a violation (see Part 4).

This statement must be provided to employees. Most companies include this in their employee handbooks and/or as a part of new hire paperwork, both of which may require the employee to acknowledge in writing that they received and understand the information.

Part 2: Establish and Maintain a Drug-free Awareness Program

The act requires you to have a drug awareness program. Whatever form your awareness program takes, it must include:

  • Information about the dangers of drug abuse in the workplace.
  • The employer’s policy for maintaining a drug-free workplace (i.e. the policy you published in Part 1).
  • The employer’s possible actions taken in response to an employee’s violation. (This is also likely to be stated in the published policy from Part 1.)
  • Information on any available resources or assistance programs the employer offers, including an Employee Assistance Program (EAP).

Your awareness program may be presented to your employees however you like. Common methods include inclusion in the employee handbook, posters, annual training, and new hire onboarding, but you could hold a fun event that includes reminders on the program or send postcards to home addresses as reminders of the program too.

Note that the act does not require you to provide counselling or assistance programs you do not already have. Obviously, it is recommended to have some kind of assistance readily at hand in the event an employee self-identifies their need to you, such as an Employee Assistance Program, but it is not mandatory.

Part 3: Notification of Conviction

If an employee discloses a conviction as described above, you as the employer have 10 days to notify the federal agency you contract with. If the agency determines that you have not made a good-faith effort to comply with the law because too many convictions have been reported for the size of your company, then your company will be subject to penalties listed below. Note that the method for this determination does not seem to be published.

Part 4: Employee Violation Response

You then have 30 days from the date the employee discloses the conviction to either:

  • Take disciplinary action up to and including termination, or
  • Require the employee to satisfactorily complete a rehabilitation or drug abuse assistance program.

What Does the Drug-free Workplace Act Not Require?

Here are the most common things people expect the act to require that it doesn’t:

Report self-identified addiction

Employees who report to HR or management that they are struggling with addiction and need help do not have to be reported under the Drug-free Workplace Act, as there is no conviction involved.

Report prior convictions

Employees and employers are not required to report convictions occurring prior to employment.

Report convictions outside of the workplace

Convictions occurring outside the workplace are not required to be reported.

Drug Tests

While the Department of Transportation has its own rules about drug testing, the Drug-free Workplace Act does not require you to randomly test your employees, complete pre-employment substance testing, or test after accidents.

Providing Counselling or Assistance Programs

If your company has counselling or assistance programs, then you need to present them in the awareness program. However, you are not required to provide these resources.

Penalties for Employer Violation

The penalties are tough, so there is ample incentive to maintain a drug-free workplace or at least comply with the act. If you are found in violation of the act, consequences include:

  • Suspension of payments.
  • Suspension, termination or debarment of contract.
  • Debarment results in ineligibility for federal contracts for up to five years.

Essentially, if you are a federal contractor and most of your business is federal contracts, violating this policy could put you out of business.

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Questions You’ve Asked Us About a Drug-free Workplace

Does the Drug-free Workplace Act require drug testing?
Although you may choose to include drug testing in your hiring process, or fall under other federal or state regulations that require it, the Drug-free Workplace Act does not.
Can an employee who is using drugs be fired?
Yes, provided you feel you have enough evidence to avoid a wrongful termination suit. Note that the Drug-free Workplace Act does not require termination. Your company’s published statement will declare what penalties may be employed.
What does a criminal drug statute mean? Or what do I have to report?
A criminal drug statute is a law involving the manufacture, distribution, dispensing, possession or use of any controlled substance. Only convictions of this nature that occur in the workplace need to be reported to comply with the Drug-free Workplace Act of 1988.
Angela Livingston
Angela Livingston

Angela Livingston, SHRM-CP, MBA has nearly a decade of HR experience in high regulated, high tech companies that are Federal Contractors and supported people in other states. She’s worked for an international company with ~20K US employees that did a lot of immigration work, and she’s worked for a company with ~3500 US employees that doesn’t support work visas. One constant is that she’s always working with people empathetically with an eye on integrity.

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