Tuesday, March 22, 2016

What Does the Drug-Free Workplace Clause Require?

Most contractors are well aware of the drug-free workplace clause found in their Government contracts. Too often however, we forget that there is an on-going requirement imposed on contractors in order to stay in compliance. This isn't one of those "hang a poster in the break-room and be done with it" requirements. Today we're going to review the basic requirements of the drug-free workplace clause (FAR 52.223-6).

First, contractors must publish a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the contractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition. The clause does not specify what actions should be taken or provide a menu of available actions. Needless to say however that the actions must be sufficient to deter such activity. Many contractors use a scale of increasing severity for repeat offenders. For example, oral reprimand, written reprimand, suspension, and finally termination.

After publishing a statement, contractors must establish an ongoing drug-free awareness program to inform employees about (i) the dangers of drug abuse in the workplace, (ii) the contractor's policy of maintaining a drug-free workplace, (iii) any available drug counseling, rehabilitation, and employee assistance programs, and (iv) the penalties that may be imposed upon employees for drug abuse violations occurring in the workplace. This is where many contractors fail. The Government is prone to believe that anything less than an annual update is not "ongoing". Documentation showing employees participated in awareness programs is essential in this regard.

Contractor employees also have an affirmative duty under this clause. The must agree to abide by the terms of the statement and notify the contractor in writing if they are convicted under a criminal drug statute for a violation occurring in the workplace no later than five days after conviction.

After receiving notification from an employee, the contractor has 10 days to notify the contracting officer in writing of the conviction. The contractor must also notify the contracting officer if it becomes aware of a conviction by other means.

Within 20 days after receiving notice of a conviction, the contractor must take one of the following actions with respect to any employee who is convicted of a drug abuse violation occurring in the workplace:

  1. Taking appropriate personnel action against such employee up to and including termination or
  2. Require such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.

The clause provide for penalties when contractors do not comply with drug-free workplace requirements. These include suspension of contract payments, termination of the contract for default, and suspension or debarment.

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