I. PURPOSE

This directive establishes policy, procedures, and criteria that govern implementation of the FSIS Drug-Free Workplace Plan and sets forth supervisory and employee responsibilities.

II. (RESERVED)

III. REASON FOR ISSUANCE

A. USDA’s concerns are with the well-being of its employees, the successful accomplishment of Agency missions, and the need to maintain safety and security of the Nation’s food supply. The plan offers a helping hand to those who need it, while sending a clear message that any illegal drug use is, quite simply, incompatible with the Agency’s mission.

B. The plan acknowledges EO 12564, dated September 15, 1986, which established the goal of a drug-free Federal workplace. The Order requires as a condition of employment that all Federal employees refrain from using illegal drugs on-or-off-duty.

C. This plan complies with the USDA Drug-Free Workplace Plan. It points to the essential 5 elements set out in EO 12564:

1. Develop a comprehensive written policy.
2. Establish supervisory training.
3. Offer employee education.
4. Make available employee assistance programs.
5. Identify illegal drug users and provide drug testing on a controlled and carefully monitored basis.

IV. REFERENCES

• Executive Order 10450, Security Requirements for Government Employees
• Executive Order 12356, National Security Classification
• Executive Order 12564, Drug-Free Federal Workplace
• Memorandum to Federal Agencies “Guidance for Selection of Testing Designated Positions (TDPs)”, August 2, 1999
• USDA Drug Free Workplace Plan, April 27, 1988
• Departmental Regulation 4430-792-2, Drug-Free Workplace Program
• Public Law 95-454, Civil Service Reform Act of 1978
• Public Law 99-570, Federal Employee Substance and Treatment Act of 1986
• Public Law 100-71, Supplemental Appropriations Act
• Public Law 100-71, Section 71, Section 503 of the Supplemental Appropriations Act of 1987
• Public Law 101-136, General Government Appropriations Act of 1990
• 5 CFR Section 752, Adverse Actions
• 5 CFR 792, Federal Employee’s Health and Counseling Programs
• 5 USC 552(a), Privacy Act of 1974 5 USC 7103, Labor Management Relations
• 5 USC 7301, Suitability, Security and Conduct, Presidential Regulations
• 5 USC 7361-7362, Suitability, Security and Conduct, Drug Abuse, Alcohol Abuse and Alcoholism
• 5 USC 7901, Services to Employees, Health Service Programs
• 21 USC 802(6), Schedules I and 2, Defining Controlled Substances
• 21 USC 1175, Drug Abuse Office and Treatment Act of 1972

V. ABBREVIATIONS

The following appears in their shortened form in this directive:

• ADTL Agency Drug Testing Liaison
• CFL Center for Learning
• CFR Code of Federal Regulations
• DFWP Drug Free Workplace Plan
• EAP Employee Assistance Program
• ECPM Employee Counseling Program Manager
• EO Executive Order
• FDA Food and Drug Administration
• HHS United States Department of Health and Human Services
• HRD Human Resources Division
• LERD Labor and Employee Relations Division
• MRO Medical Review Officer
• OM Office of Management
• PCP Phencyclidine
• PPPD Personnel Policy and Partnership Division, Office of Human Resource Management
• PL Public Law
• QWLD Quality of Work Life Division, Office of Human Capital Management
• USC United States Code
• SHEWD Safety, Health and Employee Welfare Division, Office of Human Resource Management
• TDP Testing Designated Position

VI. APPLICABILITY

This Directive applies to all FSIS employees and applicants for employment in TDPs, and to all employees for reasonable suspicion testing; injury, illness, or unsafe practice testing.

VII. POLICY

It is FSIS policy to:

A. Have a workplace free from illegal drug use.

B. Implement a Drug-Free Workplace Plan that ensures integrity in the accomplishment of the mission.

C. Incorporate a drug testing program which includes random testing and other appropriate types of testing as necessary to provide protection from illegal drug use.

D. Respect employee dignity and privacy in reaching the USDA drug-free workplace goal. This plan includes policies and procedures for:

1. Employee counseling and assistance.
2. Supervisory training.
3. Employee education.
4. Identification of illegal drug use through drug testing on a carefully controlled and monitored basis.

VIII. DEFINITIONS

A. Agency Drug-Free Workplace Coordinator. The individual appointed to provide the liaison with the ECPM, supervisors and employees of the Agency on the DFWP. The coordinator is also the individual responsible for coordinating drug test referrals within the Agency.

B. Applicant. Any individual tentatively selected for employment with FSIS in a safety related TDP, or any individual within FSIS tentatively selected for movement into a TDP, who has not, immediately before the selection, been subject to random testing.

C. Employee Assistance Program (EAP). The FSIS counseling program that offers assessment, short-term counseling, and referral services to employees for a wide range of drug, alcohol, and mental health problems.

D. Employee Assistance Program Coordinator. A designated individual who disseminates educational materials to the workforce on drug, alcohol, and mental health problems.

E. Follow-up Testing. An unannounced test for employees undergoing counseling or rehabilitation for illegal drug use for a period of up to two years.

F. Illegal Drug. A controlled substance that is used without a valid prescription. The term “illegal drugs” does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by law.

G. Injury, Illness, Unsafe or Unhealthful Practice Testing. A test applied to a job-related accident or unsafe practice resulting in death or personal injury requiring hospitalization, or damage to Government or private property estimated in excess of $10,000.

H. Management Official. An employee required or authorized by the FSIS to formulate, determine, or influence USDA policies.

I. Medical Review Officer. A licensed physician with medical training in substance abuse disorders. The MRO evaluates and interprets all positive test results received from the drug testing laboratory. Also evaluates an individual's medical history and any other relevant biomedical information.

J. Random Testing. A system of drug testing imposed without individualized suspicion that a particular individual is using illegal drugs. Random testing may either be uniform unannounced testing of employees in a TDP, or may be a statistically random sampling of a percentage of such employees based on a neutral criterion, (example: such as social security numbers).

K. Reasonable Suspicion Testing.

1. A type of drug testing to which an employee is referred where there is reasonable belief for the following criteria:

• a. Observable phenomena, (example: such as direct observation of drug use, possession, or the physical symptom(s) of being under the influence of a drug).
• b. A pattern of abnormal conduct or erratic behavior.
• c. Arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking.
• d. Information provided either by reliable and credible sources or independently corroborated.
• e. Newly discovered evidence that the employee has tampered with a previous drug test.

2. Although, reasonable suspicion testing does not require certainty, mere “hunches” are not sufficient to meet this standard.

L. Supervisor. An employee with authority to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove other employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature, but requires the consistent exercise of independent judgment.

M. Testing Designated Position. A position designated for random testing (see Attachment 1). The position description of all positions identified as TDPs will contain the following: “This position is designated by the USDA as a testing designated position under the USDA Plan for a Drug-Free Workplace. As a mandatory requirement for employment in this TDP, the incumbent must refrain from the use of illegal drugs and if required, submit to random urinalysis testing.”

N. Verified Positive Test Result. A test result shows positive by FDA-approved immunoassay test, confirmed by a Gas Chromatography/Mass Spectrometry assay (or other confirmatory tests approved by the HHS), evaluated and determined by MRO to be positive for illegal drug use.

O. Quality of Work Life Division. Responsible for identifying employees selected for drug testing under the DFWP.

IX. RESPONSIBILITIES

A. Administrator. Responsible for the proper and effective administration of the program.

B. Assistant Administrator, Office of Management. Responsible for the formulation and issuance of policies.

C. Agency Drug Testing Liaison. Arranges for employees to present themselves for drug testing and ensures that notices are delivered to employees identified for drug testing through random drug testing, reasonable suspicion drug testing, follow-up testing, or injury illness, unsafe, or unhealthful practice testing. Coordinates the DFWP with QWLD, EAP personnel, agency supervisors and employees.

D. Director, Labor and Employee Relations Division.

1. Approves or disapproves requests for reasonable suspicion or injury, illness, unsafe, or unhealthful practice testing within FSIS.
2. Ensures managers and supervisors are trained to recognize the signs of illegal drug use.
3. Receives reports of positive drug tests from the Director, PPPD.

E. Employee Assistance Program Coordinator.

1. Ensures that supervisors and employees know how to access EAP.
2. Provides advice and assistance to field personnel staffs, supervisors, and representatives of employee organizations, as appropriate.
3. Advises supervisors of employees with performance or personal problems of the services available through EAP.

F. Medical Review Officer.

1. Receives all laboratory test results.
2. Verifies positive test results received from the laboratory.
3. Assures that an individual who tests positive is afforded an opportunity to discuss the test result following the Mandatory Guidelines for Federal Workplace Drug Testing.
4. Refers written determinations for verified positive test results to the ECPM, QWLD including a positive drug test form indicating that the positive result is verified, together with all relevant documentation, and a summary of findings.

G. Supervisors. Attend training sessions to recognize signs and symptoms associated with illegal drug use by employees. Supervisors mush immediately report findings to the appropriate program official. Supervisors receive information regarding how to make a referral of employees to the EAP, the procedures and requirements for drug testing, and behavioral patterns that give rise to a reasonable suspicion that an employee may be using illegal drugs. Supervisors:

1. Initiate drug test requests based on reasonable suspicion and injury, illness, unsafe, or unhealthful practice testing, as defined.
2. Refer employees to the EAP for assistance in obtaining counseling and rehabilitation on a finding of illegal drug use.
3. Request appropriate disciplinary or adverse action for a finding of illegal drug use.
4. Coordinates with HR specialists to assist higher level supervisors in evaluating employee performance or personal problems that may relate to illegal drug use. If an employee is suspected of using illegal drugs, the appropriate supervisor or management official gathers all information, facts, and circumstances leading to and supporting this suspicion.

H. A Higher Level Supervisor (above the Front Line Supervisor). Reviews and concurs in advance with all requests for drug testing on the basis of reasonable suspicion and injury, illness, unsafe, or unhealthful practice testing before forwarding to the appropriate Program Official.

I. Appropriate Program Official. Makes formal requests for reasonable suspicion or injury, illness, unsafe, or unhealthful practice testing to the Director, LERD.

J. Chief, Employee Relations Branch. Takes appropriate disciplinary or adverse action based on reported verified positive test results.

X. FEATURES AND PROCEDURES OF THE DRUG TESTING PROGRAM

A. Drugs to be Screened. The Department has the reserved right to request HHS’ approval to expand the list of drugs or drug classes. Employees are tested for the presence of the following drugs or drug classes:

1. Amphetamines (speed, bennies, uppers, methamphetamine).
2. Cocaine (coke, crack).
3. Opiates (heroin, morphine - “designer drugs”).
4. Phencyclidine (PCP, angel dust).
5. Marijuana (dope, grass, joint, hash, hooch, weed, smoke).

B. Notices. The USDA Plan for a Drug Free Workplace issued April 27, 1988, satisfies the 60 day advance notice requirement. Individual notices are issued to those employees occupying a position newly designated as a TDP (See Attachment 2). Approval level is the Department.

C. Notice to Employees Under Specific Conditions. Employees subject to random testing, reasonable suspicion, post-accident or unsafe practice and follow-up testing shall receive notice of such testing on the same day of the scheduled testing, and preferably within two hours.

D. Privacy in Drug Testing.

1. Drug testing procedures allow individual privacy unless there is reason to believe that an individual may alter or substitute the specimen.
2. Unless there is reason to suspect tampering during the test, the test occurs in a rest room stall or similar enclosure to ensure privacy.
3. When there is reasonable suspicion the individual may tamper with the specimen, the Director, QWLD may order the individual to be observed while providing a sample. When this occurs, the collection site personnel must be of the same sex as the individual providing the sample.

E. Agency Drug-Testing Liaison.

1. Immediately forwards the notification that an employee is to report for a specified drug test to the employee’s first-level supervisor.
2. Forwards “A Random Drug Testing Program Checklist for Employees” with the notification to report for random drug testing.
3. Contacts the USDA Liaison for requests to reschedule a random drug test. Requests to reschedule must be based on extenuating circumstances.

F. The First-Level Supervisor.

1. Contacts the collection site to verify the drug test kit is there and to determine the best time to schedule the employee’s appointment.
2. Arranges for release of the employee to report for the drug testing.
3. Notifies the FSIS Drug Testing Liaison of any problems encountered with the scheduling.
4. Serves notification of the specified drug test to the identified employee. Establishes the date and time of the test within the timeframe specified.

G. Deferral of Testing.

1. An employee selected for random drug testing may obtain deferral of testing if the Director, QWLD, or designee, concurs that a compelling need necessitates a deferral on the grounds that the employee is:

• a. In a leave status (sick, annual, administrative, or leave without pay) or,
• b. In official travel status away from the test site or is about to embark on official travel scheduled before testing notification.

2. An employee whose random drug test is deferred is subject to an unannounced test within the following 60 days.

XI. TYPES OF DRUG TESTING ADMINISTERED

A. Reasonable Suspicion Testing.

1. Reasonable suspicion testing may be required of any employee in a position which is designated for random testing when there is a reasonable suspicion that the employee uses illegal drugs whether on or off duty. Reasonable suspicion testing may also be required of any employee in any position when there is a reasonable suspicion of on-duty use or on-duty impairment.
2. Immediately upon receipt of approval from the Director, LERD, to conduct a reasonable suspicion test, the ADTL:

• a. Identifies a collection site to administer the drug test and orders a kit from the USDA contract provider.
• b. Informs the supervisor where the kit is and advises the supervisor to notify the employee. The supervisor informs the employee to report for urinalysis drug testing. (See Attachments 3, 4, and 5.)

B. Injury, Illness, Unsafe or Unhealthful Practice Testing. If an employee is suspected of having caused or contributed to an accident meeting the criteria in Subparagraph VIII.G., the first-level supervisor will immediately present the facts leading to this suspicion through the chain of command to the Program Manager for referral to the Director, LERD, for approval. Once approval is obtained and testing arrangements made, the supervisor promptly prepares a written report detailing the facts and circumstances that warranted the testing. Injury, illness, unsafe, or unhealthy testing must be conducted within 32 hours of the incident forming the basis for the test.

C. Random Testing. When an employee is identified for random testing, the ADTL:

1. Identifies a collection site and orders a kit from the USDA contract provider.
2. Notifies the employee’s supervisor identified for random drug testing and forwards to the supervisor a Random Drug Test Program Checklist for Supervisors. (See Attachments 6 and 7.)
3. The supervisor informs the employee to report for urinalysis drug testing. (See Attachment 8.)

D. Follow-up Testing. Employees in TDPs found abusing drugs through a verified positive test result may return to duty after completion of rehabilitation through an EAP. Such employees are subject to follow-up testing for two years after they complete a counseling or rehabilitation program. During this period, the employee is tested three times at a minimum. This testing is distinct from any testing imposed as a component of the EAP. This also applies to employees referred by administration officials to a counseling rehabilitation program for illegal drug use through EAP as a result of having previously been found illegally using drugs.

XII. FINDING OF DRUG USE AND DISCIPLINARY CONSEQUENCES

A. Drug Use Determination. An employee found to use illegal drugs on the basis of any appropriate evidence including, but not limited to:

1. Direct observation.
2. Evidence obtained from an arrest or criminal conviction.
3. A verified positive test results.
4. An employee’s voluntary admission.
5. An administrative inquiry.

B. Employees in TDPs. An employee found to use illegal drugs and who also occupies a sensitive position may be removed from a sensitive position until successful completion of rehabilitation. Appropriate action, such (examples: detailing the employee from the sensitive position or voluntary use of leave by the employee), is appropriate. An employee may return to duty in a sensitive position if the employee’s return will not endanger public health, safety, or national security. Appropriate officials are identified in the USDA Plan for a Drug Free Workplace. (See Paragraph VIII.)

C. Disciplinary or Adverse Action. Supervisor must initiate disciplinary or adverse action when an employee is found to use illegal drugs. Disciplinary or adverse action may include any of the following measures Employee Relations Branch, LERD, determines appropriate:

1. Reprimand the employee in writing.
2. Place the employee in an enforced leave status.
3. Suspend the employee for 14 days or less.
4. Suspend the employee for 15 days or more.
5. Suspend the employee until they successfully complete counseling or rehabilitation or until it is determined that an action other than suspension is more appropriate.
6. Reduce the employee in pay or grade.
7. Remove the employee from the Agency.

D. Referral. The Agency refers an employee found to use illegal drugs to the EAP. Such referral, however, does not preclude initiation of disciplinary or adverse action proceedings.

E. Mandatory Removal from the Agency. The Agency initiates action to remove an employee who:

1. Refuses to obtain counseling or rehabilitation through the EAP as required by the EO after having been found to use illegal drugs.
2. Continues to use illegal drugs after a first finding of illegal drug use.
3. Refuses testing.
4. Attempts to alter or substitute specimens.
5. Distributes or sells illegal drugs.

XIII. EMPLOYEE COUNSELING AND ASSISTANCE

A. The Agency continues its sponsorship of the EAP program which includes programs for referrals for illegal drug use, prevention and treatment, and rehabilitation of employees with drug use problems.

B. The FSIS contracts for EAP services for the workforce. Any employee found using illegal drugs will be referred to the EAP Center. The EAP is available to all employees without regard to a finding of drug use. The EAP provides short-term counseling and referral as necessary, as well as education and training regarding illegal drug use. The EAP is available to employees and the families of employees with drug problems, and to employees with family members having drug problems.

XIV. SUPERVISORY TRAINING

A. Supervisors have a key role in establishing and monitoring a drug-free workplace. FSIS is committed to training its’ supervisors and managers to recognize and address illegal drug use.

B. The CFL and OM are primarily responsible for ensuring that supervisors and managers receive training which includes information on drug testing requirements, identifying and addressing illegal drug use by employees, and referral of employees to the EAP. Such training will include information to make supervisors more sensitive to employee’s drug behavior and help supervisors recognize signs that give rise to a reasonable suspicion that an employee illegally uses drugs.

C. Supervisory training provides an understanding of:

1. Agency policies relevant to work performance problems, drug use, and the Agency’s EAP.
2. The responsibilities of offering EAP services.
3. How to recognize and document employee performance and behavioral changes.
4. The roles of the MRO, medical staff, supervisors, HRD, LERD, and EAP personnel.
5. The ways to use the Agency’s EAP.
6. How the EAP is linked to the performance appraisal and the disciplinary process.
7. The process of reintegrating employees into the workforce.
8. The documentation of facts and circumstances needed to support the reasonable suspicion case.

D. Supervisory training:

1. Assist supervisors in documenting facts and circumstances to support the reasonable suspicion case.
2. Is a primary part of the ongoing supervisory training programs. Training is provided as soon as possible after an employee assumes supervisory responsibilities. Training courses include:

• a. Overall Agency policy.
• b. The prevalence of various employee problems with respect to drugs and alcohol.
• c. The EAP approach to handling problems including the supervisor’s role and relationship to EAP.
• d. How to recognize employees with possible problems.
• e. Documentation of employee performance or behavior.
• f. Skills in confronting employees with possible problems.
• g. Agency procedures for referring employees to EAP.
• h. Disciplinary action and removal from sensitive positions.
• i. Reintegration of employees into the workforce.
• j. Written materials for supervisory use at the work site.

XV. EMPLOYEE EDUCATION

The CFL and OM share responsibility for providing on-going drug education to all Agency employees.

A. Drug education objectives include:

1. Type and effect of drugs.
2. Symptom of drug use, and the effect on performance and conduct.
3. The relationship of the EAP to drug testing.
4. Other relevant treatment, rehabilitation, and confidentiality issues.

B. Drug education activities may include:

1. Written materials.
2. Videotapes.
3. Lunchtime or work unit employee forums.
4. Employee drug awareness days and events. Also, any employee or supervisor can contact the ADTL at any time for educational information or materials.

XVI. CONFIDENTIALITY

A. Test Results.

1. The laboratory discloses confirmed test results only to the Department’s MRO. The MRO interprets and evaluates positive laboratory test results. The MRO discusses the lab results with the employee. If the employee cannot provide valid reasons for the positive result, the MRO tells the employee that he or she is reporting the result as a verified positive to the Department EAP Manager. The Department EAP Manager discloses results to the Department’s PPPD and then to the Agency’s Director, LERD.
2. Test results are protected by the Privacy Act and may not be released in violation of that Act. Drug testing shall not be conducted for the purpose of gathering evidence for use in criminal proceedings. USDA is not required to report to the Attorney General for investigation or prosecution any information, allegation or evidence relating to violations of 21 U.S.C., received as a result of the operation of drug testing programs established under the USDA Drug-Free Workplace Plan.

B. Medical and Rehabilitation Records.

1. EAP records, on an employee’s drug abuse, prognosis, or treatment are confidential. Disclosure is authorized by 42 CFR Part 2, and includes obtaining the employee’s written consent. An employee may consent to release their records to verify treatment progress.
2. EAP records may be disclosed without the prior written consent of the employee to:

• a. Medical personnel when necessary to meet a genuine medical emergency.
• b. The administrator of the EAP in which the employee is receiving counseling or treatment or is otherwise participating.
• c. Qualified personnel for conducting scientific research, management audits, financial audits, program evaluation or communications with all identifying information removed from the data.
• d. Comply with a court order when defending a challenge against any adverse personnel action.

XVII. TEST PROCEDURES IN GENERAL

A. The Agency observes the Mandatory Guidelines for Federal Workplace Drug Testing Programs. The testing component provides for professionally trained collection personnel, quality assurance requirements for urinalysis procedures, and strict confidentiality requirements.

B. The Plan permits any individual subject to testing to provide urine specimens in private and in a rest room stall or similar enclosure so that the employee is not observed while providing the sample. Collection site personnel of the same sex as the individual tested, however, may observe the individual provide the urine specimen when such personnel have reason to believe the individual may alter or substitute the specimen to be provided. Collection site personnel may have reason to believe that a particular individual may alter or substitute the specimen to be provided when:

1. The individual:

• a. Is being tested pursuant to reasonable suspicion testing.
• b. Has previously been found by the Agency to be an illegal drug user.
• c. Has previously tampered with a specimen.

2. The facts and circumstances suggest that the individual:

• a. Is an illegal drug user.
• b. Is under the influence of drugs at the time of the test.
• c. Has equipment or implements capable of tampering with the specimen.

3. The specimen:

• a. Has a temperature outside the specified range in the guidelines.
• b. Shows signs of contaminants.

See full PDF for Attachments 

• USDA Position Titles Designated for Random Testing
• Sample of Individual 30-Day Notice
• Sample of Reasonable Suspicion Drug Testing Letter
• Supervisory Checklist for Reasonable Suspicion Drug Test
• Employee Checklist for Reasonable Suspicion Drug Test Program
• Sample of Random Drug Test Letter
• Sample of Random Drug Test Program Checklist for Supervisors
• Sample of Random Drug Test Program Checklist for Employees
• Drugs for Which Individuals are Tested