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.

Drug-Free Workplace

Did you know that as a Government contractor or subcontractor, you can be debarred for violations of the Drug-Free Workplace Act of 1988 (Public Law 100-690)? Debarment can occur by failing to comply with the Law's requirements or if there are a lot of contractor employees convicted of criminal drug statutes occurring in the workplace. The latter condition indicates that the contractor has failed to make a good faith effort to provide a drug-free workplace. Your contract can also be terminated for default and payments under the contract can be suspended.

So, what are the requirements of the Drug-Free Workplace Act as they pertain to Government contractors? The requirements are contained in FAR Subpart 23.5 and apply to pretty much all contracts with the exception of commercial items, contracts performed outside of the US, and contracts below the simplified acquisition threshold (currently $150 thousand). FAR 23.504 states that no offeror shall be considered a responsible source for a contract unless it agrees that it will provide a drug-free workplace. A drug-free workplace is characterized by the following:

1. Publishing 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.
2. Establishing an ongoing drug-free awareness program to inform its employees about the dangers of drug abuse in the workplace, the contractor's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations occurring in the workplace
3. Providing all employees engaged in performance of the contract with a copy of the statement required by No. 1 above.
4. Notifying all employees in writing in the statement required by No. 1 above that as a condition of employment, the employee will abide by the terms of the statement and notify the employer in writing of the employee's conviction under a criminal drug statute for a violation occurring in the workplace no later than five days after such conviction.
5. Notifying the contracting officer in writing within 10 days after receiving notice of a conviction. The notice shall include the position title of the employee.
6. Within 30 days after receiving notice of a conviction, take disciplinary action against the employee up to and including termination, or requiring the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program.
7. Make a good faith effort to maintain a drug-free workplace by implementing all of the foregoing requirements.

By the way, for contractors in Colorado and Washington State and soon to be Alaska, even though marijuana is legal in your states, it is still considered a "controlled substance" under this FAR provision. Controlled substances are those listed in Schedules I through V of 21 CFR 1308.11 to .15. Marijuana is listed in Schedule I.