Drug-Free Workplace Act

PURPOSE OF ACT

The Drug Free Workplace Act of 1988 aims to “prevent the manufacturing, distribution, and use of illegal drugs[.]”

GENERAL REQUIREMENTS

As a condition of receiving federal grants and being awarded certain federal contracts, an institution is required to (1) maintain a drug-free workplace by publishing a policy statement, establishing an awareness program, and taking “actions concerning employees who are convicted of violating drug statutes in the workplace[;]”and (2) “identify all known workplaces” under its federal awards.

HISTORY

On November 18, 1988, Congress enacted the Drug-Free Workplace Act of 1988 (the “Act”). The Act requires all organizations receiving grants from any federal agency and certain federal contractors to maintain a drug-free workplace. The BYU–Hawaii Drug-Free Workplace Policy was developed to accomplish this purpose. BYU–Hawaii’s policy was last updated on September 18, 2017.

APPLICABILITY TO BYU–Hawaii

The Drug-Free Workplace Act of 1988 applies to the following organizations:

• Federal grant recipients, regardless of the amount of the award and
• Federal contractors if (1) the value of the contract exceeds $100,000, (2) the contract is not for the acquisition of commercial goods, and (3) at least part of the contract is performed in the United States.

For purposes of the Act, a grantee is defined as “the department, division, or other unit of a person responsible for the performance under the grant.” Similarly, a contractor is defined as “the department, division, or other unit of a person responsible for the performance under the contract.”

To the extent it is the recipient of federal funds—either through grants to or sufficiently large contracts with its individual departments or units—BYU–Hawaii is subject to the Drug Free Workplace Act and must take measures to prevent the manufacturing, use, and distribution of illegal drugs.

REQUIREMENTS

Organizations covered by the Drug-Free Workplace Act are required to maintain a drug-free workplace by taking the following steps:

1. “publish . . . a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the [person’s or grantee’s] workplace and specifying the actions that will be taken against employees for violations of the prohibition[.]”
2. “establish . . . a drug-free awareness program to inform employees about—(i) the dangers of drug abuse in the workplace; (ii) the [person's or grantee’s] policy of maintaining a drug-free workplace; (iii) available drug counseling, rehabilitation, and employee assistance programs; and (iv) the penalties that may be imposed on employees for drug abuse violations[.]”
3. “mak[e] . . . it a requirement that each employee to be engaged in the performance of the [contract or grant] be given a copy of the statement” described in paragraph 1.
4. “notify . . . the employee in the statement required [above] that as a condition of employment [on the contract or in the grant] the employee will—(i) abide by the terms of the statement; and (ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction[.]”
5. “notify . . . the [contracting or granting] agency within 10 days after receiving notice [of an employee’s criminal drug statute conviction] from an employee or otherwise receiving actual notice of a conviction.” Thus, an institution must notify the relevant federal agency whether or not it learns of the conviction from the employee or some other source.
6. “impos[e] . . . a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted” of a reportable workplace drug conviction. Specifically, the law dictates that “[w]ithin 30 days after receiving notice from an employee of a conviction. . . “a contractor or grantee shall—(1) take appropriate personnel action against the employee, up to and including termination; or (2) require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for those purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.”
7. “mak[e] . . . a good faith effort to continue to maintain a drug-free workplace through implementation of [the Act’s requirements].”
8. For grants, identify all known workplaces, including actual addresses or other categorical descriptions, under each federal award. This identification can be made

(1) To the ED official that is making the award, either at the time of application or upon award; or
(2) In documents that you keep on file in your offices during the performance of the award, in which case you must make the information available for inspection upon request by ED officials or their designated representatives.

Recipients of a federal grant or contract award that do not have a drug-free workplace policy or program must “publish the statement and establish the program according to the timeline in the following table:”

As set forth above, organizations must take two separate actions when an employee is convicted of a drug violation in the workplace to comply with the Act: (1) notify the relevant federal agency of the conviction and (2) take action concerning the convicted employee. Pursuant to regulations governing grants, the agency notification must

(1) Be in writing;
(2) Include the employee's position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the conviction; and
(5) Be sent to every Federal agency on whose award the convicted employee was working. It must be sent to every awarding official or his or her official designee, unless the Federal agency has specified a central point for the receipt of the notices.

A federal contractor or grant recipient who fails to meet the requirements of the Act may have its payments suspended, its contract terminated, and its status as a federal contractor or grantee lost. The same consequences can occur if “the number of employees of the [contractor or grantee] who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the [contractor or grantee] has failed to make a good faith effort to provide a drug-free workplace[.]” A debarred contractor “is ineligible for award of a contract by a Federal agency, and for participation in a future procurement by a Federal agency, for a period . . . not to exceed 5 years.” Likewise, a debarred grantee “is ineligible for award of a grant by a Federal agency, and for participation in a future grant by a Federal agency, for a period . . . not to exceed 5 years.”

COMPLIANCE CALENDAR

The employee must notify the employer of any criminal drug conviction for a workplace violation within five calendar days after conviction. The employer must notify the contracting or granting agency within 10 days after receiving notice of a conviction from the employee. Within thirty days of receiving notice of an employee’s drug conviction, the employer must also take appropriate personnel action against the employee—termination or rehabilitation.