PWS Appendix II - NPPD Drug Plan.pdf

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National Protection and Programs Directorate Drug Free Workplace Plan

Table of Contents Foreword I. Introduction

A. Background B. Statement of Policy C. Scope D. References and Authorities E. Definitions

II. Nature, Frequency, and Type of Drug Testing to be Instituted A. Circumstances for Drug Testing B. Drugs for Which Employees are Tested

III. Special Duties and Responsibilities A. The Secretary B. The Under Secretary of Management C. The Chief Human Capital Officer D. The Drug Program Administrator E. The EAP Program Manager F. The Office of Health Affairs G. Components H. Supervisors I. Labor Relations J. Contractor Services

IV. Employee Assistance Program A. Function B. Referral and Availability C. Leave Allowance D. Records and Confidentiality E. Structure

V. Training and Education A. Supervisory Training B. Employee Education

VI. Notice A. General Notice B. Individual Notice C. Signed Acknowledgement D. Administrative Relief

VII. Finding of Use and Disciplinary Consequences A. Determination B. Mandatory Administrative Actions C. Disciplinary Consequences D. Mandatory Removal From Service E. Refusal to Take Drug Test When Required F. Voluntary Referral

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VIII. Random Testing A. Sensitive Positions Designated for Random Testing B. Determining the Testing Designated Positions C. Implementing Random Testing D. Notification of Random Selection E. Deferral of Testing

IX. Reasonable Suspicion Testing A. Grounds B. Procedures

X. Applicant Testing A. Objectives B. Job Opportunity Announcements C. Procedures for Applicant Testing D. Consequences

XI. Other Circumstances for Drug Testing A. Accident or Unsafe Practice Testing B. Voluntary Testing C. Follow-up Testing

XII. Test Procedures in General A. Mandatory Guidelines for Federal Workplace Drug Testing B. Privacy Assurance C. Failure to Appear for Testing D. Opportunity to Justify a Positive Test Result E. Employee Counseling and Assistance F. Savings Clause

XIII. Records and Reports A. Confidentiality of Test Results B. Employee Access to Records C. Confidentiality of Records in General D. Maintenance of Records E. Records Maintained by Government Contractors F. Statistical Information

Appendix A: List of Testing Designated Positions

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Foreword

On February 6, 2013 the Department of Homeland Security’s drug free workplace plan was certified by the Department of Health and Human Services. Under its terms, all Employing Offices are required to submit a conforming plan for approval by the DHS Office of the Chief Human Capital Officer (OCHCO).

Questions should be directed to the National Protection and Programs Directorate, Medical Program Manager.

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I. Introduction

A. Background

Executive Order 12564, signed in 1986, established the goal of a Drug Free Federal Workplace and made it a condition of employment for all Federal employees to refrain from using illegal drugs on and off duty. The following year, Congress passed Section 503 of the Supplemental Appropriations Act of 1987, Pub.L. 100-71, 101 Stat. 391, 468- 471, codified at 5 U.S.C. § 7301 note (1987), (hereafter, the “Act”) to establish uniformity among Federal agency drug testing plans, reliable and accurate drug testing, employee access to drug testing records, confidentiality of drug test results, and centralized oversight of the Federal Government’s drug testing program. Since 1988, the oversight responsibility has been led by the White House Office of National Drug Control Policy (ONDCP), which convenes the Interagency Coordinating Group Executive Committee, comprised of representatives of the Department of Health and Human Services, Department of Justice and Office of Personnel Management.

B. Statement of Policy

The National Protection and Programs Directorate (NPPD) supports the Department of Homeland Security’s (DHS) mission to protect and enhance the resilience of the nation’s physical and cyber infrastructure.

NPPD has a compelling obligation to eliminate illegal drug use from its workplace in order to eliminate the range of risks to national security, public health, and public safety that could be posed by individuals who use illegal drugs.

The Federal Protective Service (FPS), an organization within NPPD, protects the critical infrastructure and key resources of the United States by providing law enforcement personnel security management services and leveraging stakeholder partnerships. FPS protects one component of the Nation’s infrastructure by mitigating risk to property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.

Consistent with departmental policy, it is the policy of NPPD to prevent and eliminate illegal use, possession, distribution, or trafficking of controlled substances, among its employees. The National Protection and Programs Directorate Drug Free Workplace Plan (the “Plan”) will inform employees about the testing program, the hazards of drug use and the resources available for meaningful assistance to employees and family members experiencing the problems associated with illegal drug use.

Employees are assured that personal dignity and privacy will be respected through the drug testing process and, when illegal drug use is detected, there will be consistent application of appropriate disciplinary consequences to the circumstances of each case.

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Accordingly, NPPD has established policies and procedures for: 1) drug testing on a carefully controlled and monitored basis; 2) Employee Assistance Programs; and 3) training and education for supervisors and employees.

C. Scope

This Plan, and the drug testing it requires, conforms to the terms of the DHS Plan certified by the Department of Health and Human Services (HHS) and applies to all NPPD federal civilian employees, upon approval by the DHS Chief Human Capital Officer.

D. References and Authorities

1. Executive Order 12564, Drug-Free Federal Workplace;

2. Executive Order 10450, Security Requirements for Government

Employees;

3. Executive Order 12958, Classified National Security Information (as amended);

4. Supplemental Appropriations Act of 1987, Public Law 100-71, as amended (5 U.S.C. §7301 note) (hereafter the “Act”);

5. Mandatory Guidelines for Federal Workplace Drug Testing

Programs, 53 FR 11970 (1988) (as amended) (hereafter Mandatory Guidelines”);

6. 2013 Guidance for Selection of Testing Designated Positions (TDPs);

7. Civil Service Reform Act of 1978, Pub. L. 95-454, Title II, Civil Service Functions; Performance Appraisal; Adverse Actions

8. The Public Health Service Act and implementing regulations, 42 C.F.R. Part 2, §§ 523 and 527, Confidentiality of Alcohol and Drug- Abuse Patient Treatment Records;

9. The Privacy Act of 1974 (5 U.S.C. §552a);

10. Anti-Drug Abuse Act of 1986, Pub. L. 99-570;

11. DHS Delegation 03000,Delegation for Human Capital and Human

Resources, June 5, 2012;

12. DHS Drug-Free Workplace Directive No. 066-05;

13. DHS Management Directive 254-02, Employee Assistance

Program, May 31, 2007;

14. DHS Management Directive 0470.2, Privacy Act Compliance, October 6, 2005;

15. DHS Management Directive 11005, Suspending Access to DHS

Facilities, Sensitive Information, and IT Systems, May 23, 2006;

16. DHS Management Directive 11056.1, Sensitive Security

Information (SSI), November 3, 2006;

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E. Definitions

1. Applicants: All individuals selected for positions, or transferred to FPS for employment, who have not, immediately prior to the selection, been subject to random drug testing under the Executive Order.

All individuals selected for positions, or transferred to NPPD Testing Designated Positions (TDPs), who have not, immediately prior to the selection, been subject to random drug testing under the Executive Order.

2. Employee Assistance Program (EAP): A confidential counseling program that offers assessment, short-term counseling, and referral services to employees for a wide range of problems that could interfere with work performance. Problems covered by the EAP include, but are not limited to, emotional, family relationship, substance abuse, occupational, legal or financial problems. For issues associated with substance abuse, the EAP offers short-term counseling and referrals to treatment, and monitors the progress of employees in treatment. Employees may obtain professional assistance through the EAP by self-referral, supervisory referral, referral following a verified positive drug test, or other support service referral. The EAP also includes consultation and training for managers and supervisors seeking guidance in enhancing the work environment; improving employee job performance; and providing outreach to employees. See DHS Directive 254-02 for further information.

3. Employee in a Sensitive Position:

a. One who occupies a position that the Secretary, or his/her designee, has designated as Special-Sensitive, Critical- Sensitive, or Noncritical-Sensitive under 5 CFR Part 732 or an employee in a position that a component head designates as sensitive in accordance with EO 10450, as amended;

b. One who has been granted access to classified information or who may be granted access to classified information pursuant to a determination of trustworthiness by the Secretary under Section 4 of Executive Order No. 12958;

c. Presidential appointees requiring Senate confirmation;

d. Law enforcement officers as defined in 5 U.S.C. §8331(20) and 8401(17); or

e. Other positions determined to involve law enforcement, national security, the protection of life and property, and public health or safety.

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4. Employing Office: For the purposes of the Drug Free Workplace Program, this means NPPD.

5. Illegal Drug: A controlled substance included in Schedule I or II, as defined by Section 802(6) of Title 21 of the United States Code, the possession of which is unlawful under chapter 13 of that Title.

“Illegal drug" does not refer to the use of a controlled substance pursuant to a valid prescription or other uses authorized by federal law. “Illegal drug” does refer to the use of a controlled substance in any manner other than that stipulated in a valid prescription or other use authorized by federal law.

6. Medical Review Officer (MRO): A licensed physician holding either a Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.)

degree who has:

a. Knowledge about and clinical experience in controlled substance abuse disorders;

b. Detailed knowledge of alternative medical explanations for laboratory positive drug test results;

c. Knowledge about issues relating to adulterated and substituted specimens;

d. Knowledge about possible medical causes for specimens reported as having an invalid result;

e. The training necessary to serve as an MRO as set forth in the Mandatory Guidelines for Federal Workplace Drug Testing; and

f. Satisfactorily passed an examination administered by a nationally recognized entity that certifies MROs or subspecialty board for physicians performing a review of federal employee drug test results, which has been approved by the Secretary, HHS.

7. Random Testing: A system of drug testing used for employees in

Testing Designated Positions, either:

a. Uniform, i.e., the unannounced testing of all testing designated employees occupying a specified area, element or position; or

b. A statistically random sampling of employees in testing designated positions based on a neutral criterion.

8. Supervisor: The first level of management to whom an employee reports.

9. Testing Designated Positions (TDPs): Positions which have been designated for random testing in accordance with section VIII.B of this Plan.

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10. Transferee: Federal employee who is reassigned to NPPD from another federal agency.

11. Verified Positive Test Result: A test result that was positive on an initial FDA-approved immunoassay test, confirmed by a Gas Chromatography/Mass Spectrometry assay (or other confirmatory tests approved by the Department of Health and Human Services), and reviewed and verified by the Medical Review Officer in accordance with this Plan and the Mandatory Guidelines for Federal Workplace Drug Testing Programs.

II. Nature, Frequency and Type of Drug Testing to be Instituted

A. Circumstances for Drug Testing

1. Random testing;

2. Reasonable suspicion of drug use;

3. Applicant testing;

4. Post-accident or unsafe practice;

5. Voluntary; and

6. As follow-up to counseling or rehabilitation.

The annual rate of random testing will be determined by the NPPD Under Secretary considering mission sensitivity, experience, resources. The rate will be no less than ten percent (10%) of the number of employees in the random pool. NPPD reserves the right to increase or decrease the frequency of testing consistent with the duty to achieve a drug free workplace in accordance with the DHS Drug Free Workplace Plan. Any change in the rate of testing is considered a revision to the Component plan and must be approved by OCHCO.

B. Drugs for Which Employees are Tested

The substances employees and applicants will be tested for under this plan are:

1. Amphetamines;

2. MDMA (“ecstasy”), MDEA, MDA;

3. Cocaine;

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4. Marijuana;

5. Opiates;

6. 6-acetylmorphine (6 AM); and

7. phencyclidine (PCP).

If a compelling need to test for any drug other than those listed above is identified, NPPD Under Secretary will make a request to the CHCO. If approved, the CHCO will submit the request for the advance, written approval of the Secretary, HHS.

III. Special Duties and Responsibilities

A. The Director, Office of Human Resources serves as the Designated Component Official for NPPD. As the designated Component Official, the Director:

1. Designates a Drug Program Coordinator (DPC) to oversee implementation of the Plan; and

2. Establishes and maintains a NPPD-wide Employee Assistance Program and designates an EAP Program Manager; and

3. Advises the NPPD Under Secretary on issues involving illegal drugs, the drug free workplace program, and the implementation of this Plan.

B. The Drug Program Coordinator (DPC)

The Medical Program Manager serves as the DPC.

The DPC manages and implements the NPPD Plan in accordance with the Executive Order, Public Law, Mandatory Guidelines, and DHS policy;

serves as the principal contact for collection, laboratory, quality control, and MRO activities; and:

1. Serves as the principal contact with the MRO, with the laboratory and for collection activities to ensure the effective operation of the testing portion of the program;

2. Receives verified positive test results from the MRO and collaborates with Employee Relations to refer employees with verified positive test results to the EAP for counseling and treatment services;

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3. In the event of a verified positive test result for an applicant tentatively selected for employment, notifies the appropriate human resources official who is responsible for ensuring immediate withdrawal of the tentative offer of employment, based on the failure of the applicant to meet a condition of employment;

4. Coordinates with the DHS Drug Program Administrator (DPA) and participates on the working group of Component DPCs;

5. Coordinates all DPC duties in field offices to conserve resources and efficiently accomplish objectives;

6. Coordinates the annual review of the NPPD Plan and list of positions designated for random testing;

7. Provides educational materials and training, advice and assistance to supervisors and employees on illegal drugs in the workplace, and on the NPPD Drug Free Workplace Program;

8. Coordinates with the EAP staff to publicize and disseminate drug program educational materials and oversee training and education sessions on drug use, treatment and rehabilitation, etc.;

9. Ensures that all employees subject to random testing receive individual notices as described in Section VI of this Plan, prior to implementation, and that such employees return a signed acknowledgment or receipt form;

10. Assembles and submits Annual Survey Report inputs and other program and performance data to the DPA;

11. Oversees and inspects collection sites;

12. Monitors, evaluates, and reports on compliance, program quality and program statistics; and

13. Arranges for specimen collection, laboratory, quality control, and Medical Review Officer services and assures that any contract-maintained employee information is handled in accordance with privacy and security standards.

C. Employee Assistance Program Administrator

1. Leads the development, implementation, and evaluation of the

EAP;

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2. Designates and supervises EAP Coordinators and Counselors; and

3. Provides annual statistical and other consolidated reports on EAP activity.

Under DHS Directive 254-02, all EAPs provide confidential initial counseling and referral to employees and family members, among other services. In addition to these routine functions, the EAP has special duties and responsibilities under this Plan indicated in Sections E, F, and G below.

D. Employee Assistance Program Coordinator

In addition to routine EAP functions:

1. Works with the DPC to provide educational materials and training to managers, supervisors, and employees on illegal drugs in the workplace;

2. Works with the DPC to ensure that training is provided to supervisors in the recognition and documentation of facts and circumstances that support a reasonable suspicion that an employee may be using illegal drugs;

3. Assists supervisors with employee performance and/or personnel problems that may be related to illegal drug use;

4. Maintains a list of treatment and rehabilitation organizations, including:

a. Name, address, and phone number;

b. Types of services provided and client specialization;

c. Hours of operation, including emergency hours;

d. Contact person’s name and phone number;

e. Fee structure and insurance coverage; and

f. Other pertinent information.

5. Periodically visits treatment and rehabilitation organizations to meet administrative and other staff members, tour the site, and ascertain the experience, certification and educational level of staff, and the organization’s policy concerning progress reports on clients and post-treatment follow up;

6. Provide counseling and related services to employees referred to the EAP by their supervisors; and

7. Monitors the progress of referred employees during and after the

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E. Employee Assistance Program Counselor

In addition to routine EAP functions:

1. Serves as the initial point contact for employees referred for assessment and counseling by their supervisors;

2. Is familiar with all applicable laws and regulations, including drug treatment and rehabilitation insurance coverage available to employees through the Federal Employee Health Benefits Program;

3. Meets the qualifications as determined by the EAP Administrator and is trained in counseling employees in the occupational setting and in drug use;

4. Makes treatment and rehabilitation referrals, considering the:

a. Nature and severity of the problem;

b. Location of treatment;

c. Cost of treatment;

d. Intensity of the treatment environment;

e. Availability of inpatient/outpatient care;

f. Special needs, e.g., transportation, child care; and

g. Employee preferences.

5. Documents and signs the treatment plan prescribed for all employees referred for treatment, after obtaining the employee’s signature on the document.

F . Medical Review Officer (MRO), Among other duties stipulated in the Mandatory Guidelines for Federal Workplace Drug Testing Programs:

1. Receives all laboratory test results;

2. Assures that an individual who tests positive is afforded an opportunity to discuss the test results in accordance with Section XII.D of this Plan;

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3. Provides written determinations on all verified positive test results to the DPC and forwards a positive drug test result form, indicating that the positive result has been verified, together with relevant documentation and a summary of findings, excluding medical information;

4. Confirms with the DPC when an individual who has been tentatively selected for employment has obtained a verified positive test result;

and

5. Coordinates with and reports to the DPC on all activities and findings on a regular basis as determined by the DPC.

G. Supervisors

1. Receive training on: recognizing and addressing performance and conduct issues associated with illegal drug use by employees;

procedures for referral of employees to the EAP; the policy and procedures for drug testing; and the situations that may give rise to a reasonable suspicion that an employee may be using illegal drugs;

2. Initiate drug tests based on reasonable suspicion as described in

Section IX;

3. Refer employees to the EAP for assistance in obtaining counseling and rehabilitation, upon a finding of illegal drug use;

4. Initiate appropriate disciplinary action upon a finding of illegal drug use;

5. In conjunction with the NPPD Labor and Employee Relations Office, evaluate employee performance and/or conduct problems that may be related to illegal drug use; and

6. Obtain review and concurrence of second line supervisor, in advance, regarding all drug tests ordered on the basis of a reasonable suspicion in accordance with Section IX.

H. Labor Relations

The active participation and support of labor organizations can contribute to the success of this program. Management will seek ways in which bargaining unit representatives might assist in program implementation, e.g., by enhancing employee confidence in the program. Management will continue to observe agreements already reached, will include union representatives in general

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Chapter 71.

I. General Program Structure

The NPPD Medical Program Manager, as DPC, develops implementation procedures to enable NPPD to efficiently and effectively implement all aspects of this plan, taking into account the unique geographical, personnel, budgetary and other relevant factors. Such procedures will permit Regional Office implementation to proceed consistently with NPPD. Testing will proceed under this plan as soon NPPD is prepared to commence testing. Such procedures will encourage cooperation and coordination among components so as to conserve resources and efficiently implement this plan.

IV. Employee Assistance Program

A. Function

The EAP plays an important role in preventing and resolving employee drug use by providing an opportunity, with appropriate assistance, to end their use of illegal drugs. The EAP; however, is not involved in the collection of urine samples or the initial reporting of test results to employees or management officials. Specifically, the EAP:

1. Provides assessment, referral and short-term counseling and assistance to employees who self-refer for treatment or whose drug tests have been verified as positive;

2. Ensures the employees who self-refer for treatment or whose drug tests have been verified as positive are referred out to appropriate resources and/or for treatment;

3. Monitors individuals during the treatment and rehabilitation period to ensure program completion;

4. Provides education and training to all employees on types and effects of drugs, symptoms of drug use and its impact on performance and conduct, drug treatment and rehabilitation resources, and confidentiality issues;

5. Ensures that confidentiality of test results and related medical treatment and rehabilitation records is maintained, in accordance with Section XIII; and

6. Assists supervisors in recognizing drug use and confronting employees who have performance and/or conduct problems related to drug use.

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B. Referral and Availability

Employees found to be using illegal drugs will be referred to the EAP. The EAP will be administered separately from the testing program and will be available to all employees without regard to a finding of drug use through the drug testing program. The EAP will provide counseling or referrals to counseling or rehabilitation, as well as education and training on issues associated with illegal drug use. The EAP is available to employees and to the families of employees with drug problems, as well as to employees with family members having drug problems.

In the event the employee is not satisfied with the program of treatment or rehabilitation, the employee may seek review of the EAP Counselor’s referral by notifying the EAP Administrator prior to the completion of the program. The decision of the EAP Administrator shall be final and shall not be subject to further administrative review.

Regardless of the treatment program chosen, the employee remains responsible for successful completion of the treatment. Assertions that the EAP failed to consider one or more factors in making a referral will not constitute either an excuse for continuing to use illegal drugs or a defense to disciplinary action if the employee does not complete treatment.

C. Leave Allowance

Employees will be allowed up to one hour (or more as necessitated by travel time) of administrative leave, as determined by the supervisor, for each counseling session during the assessment and referral phases of rehabilitation up to a maximum of six hours. Absences during duty hours for rehabilitation or treatment must be charged to the appropriate leave category in accordance with OPM regulations, any applicable leave policy and at supervisor discretion.

D. Records and Confidentiality

All EAP services will be confidential in accordance with Section XIII addressing records and confidentiality.

E. Structure

The Director, Office of Human Resources shall be responsible for oversight and implementation of the NPPD EAP consistent with DHS policy and will provide high level direction and promotion of the EAP.

NPPD EAP services are provided by a contractor. Employees should call 866-511-3372 for assistance.

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V. Training and Education

A. Supervisor Training

Supervisors have a key role in any drug-free workplace program. NPPD provides training to supervisors and managers to assist them in recognizing and addressing illegal drug use by employees.

Supervisor training is being based on a curriculum developed at the departmental level. The DPC is responsible for implementing the curriculum and delivering the training.

Supervisor training is required of all supervisors and may be presented as a separate course or may be included as part of a comprehensive supervisor training program. Training is provided as soon as possible after a person assumes supervisory responsibility. Supervisor training includes the following topics:

1. NPPD policies relevant to performance and conduct problems, drug use, and the EAP;

2. Recognition of possible drug use in employees;

3. Recognition and documentation of employee performance, conduct and behavioral changes;

4. Confronting employees with possible problems;

5. Standard operating procedures for specimen collection, laboratory services and Medical Review Officer services;

6. EAP services;

7. Procedures for referring employees to the EAP;

8. Options for disciplinary actions, up to and including removal from federal service; and

9. How to address illegal drug use by employees, to recognize facts that give rise to a reasonable suspicion, and to document facts and circumstances to support a finding of reasonable suspicion. Failure to receive such training, however, shall not invalidate otherwise proper reasonable suspicion tests.

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B. Employee Education

The DPC ensures that the NPPD drug free workplace program education is offered to all employees. Employee training will include the following topics:

1. Types and effects of illegal drugs;

2. Symptoms of drug use, and the effects on performance and conduct;

3. Counseling, treatment, rehabilitation resources and associated confidentiality requirements;

4. Provisions of the NPPD drug free workplace program, including testing and potential disciplinary consequences in the event of a finding of use;

5. The roles of the supervisor, EAP, MRO, DPC, and others; and

6. Resources available to assist employees and families.

VI. Notice

A. General Notice

DHS HQ will issue a general notice to all employees advising of the implementation of the testing program. The notice sets forth:

1. The purpose and history of the Federal Drug Free Workplace

Program;

2. The shift from legacy agency plans to Employing Office Plans approved by DHS;

3. Conformance of the DHS Plan;

4. Procedures for mandatory and voluntary testing;

5. That even voluntary admission of illegal drug use may require action by DHS Office of Security related to the employee’s eligibility for access to classified information and subsequent management action pursuant to a determination by the Office of Security;

6. That those in positions identified as testing designated positions for random testing will be issued an individual notice no later than 30

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7. The counseling and rehabilitation services available through the

EAP;

8. The circumstances under which testing may occur;

9. The opportunity to defend a positive drug test by submitting medical documentation evidencing lawful use of an otherwise illegal drug;

10. That the laboratory assessment is a series of tests which are highly accurate and reliable and that, as an added safeguard, laboratory results are reviewed by the MRO;

11. That positive test results verified by the MRO may only be disclosed to the employee, the DPC, the EAP, and the appropriate officials necessary to process an adverse action against the employee, or a court of law or administrative tribunal in any adverse personnel action; and

12. That all medical and rehabilitation records created by the EAP will be deemed confidential “patient records” and may not be disclosed without the prior written consent of the patient, an authorizing court order, or otherwise as permitted by Federal law implemented at 42 CFR Part 2.

B. Individual Notice

In addition to the information provided in the general notice, NPPD will issue an individual notice to all employees explaining:

1. Positions that have been designated as a TDP;

2. Positions subject to random testing no earlier than thirty days following the notice;

3. That the employee will have the opportunity to voluntarily admit to the use of illegal drugs and to receive counseling or rehabilitation.

In the event the employee voluntarily admits illegal drug use, disciplinary action may be initiated although it is not required by the Executive Order; and

4. That voluntary admission of illegal drug use may require action by DHS Office of Security related to the employee’s eligibility for access to classified information and their ability to maintain a

- 19 -security clearance and subsequent management action pursuant to a determination by the DHS Office of Security although it is not required under the Executive Order.

C. Signed Acknowledgement

Each employee in a TDP will be asked to acknowledge in writing that s/he has received and read the notice advising that the employee's position has been designated for random drug testing and that refusal to submit to testing will result in initiation of disciplinary action, up to and including removal from federal service. If the employee refuses to sign the acknowledgement, the employee's supervisor will note on the acknowledgement form that the employee received the notice. An employee's failure to sign the notice will not preclude testing that employee nor otherwise affect the implementation of this Plan because the general sixty-day notice will previously have notified all employees of the requirement to be drug-free. This acknowledgement should be retained by the supervisor per the applicable Records Schedule.

D. Administrative Relief

If an employee believes his or her position has been wrongly designated as a TDP, that employee may file an administrative appeal to the NPPD Under Secretary who has authority to change the TDP designation, i.e., the employee can be removed from the TDP list, however, the position cannot be removed from the TDP list. The appeal must be submitted by the employee through the DPC, in writing, within 15 days following receipt of notification, setting forth all relevant information. The NPPD Under Secretary will review the appeal based upon the criteria applied in designating the employee's position as a TDP, and will render a decision that is final and not subject to further internal administrative review, to include the internal administrative grievance process.

VII. Finding of Drug Use and Disciplinary Consequences

A. Determination

An employee may be 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 result; or

4. An employee's voluntary admission.

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B. Mandatory Administrative Actions

Employees found to use illegal drugs will be referred to the EAP and, if the employee occupies a sensitive position, immediately removed from that position without regard to whether it is a TDP. However, at the discretion of the NPPD Under Secretary and in consultation with DHS Office of Security part of an EAP rehabilitation or counseling program, an employee may be returned to duty to a sensitive position if the employee's return would not pose a danger to public health or safety, or the national security.

C. Disciplinary Consequences

Disciplinary action taken against an employee found to use illegal drugs may include the full range of disciplinary actions, up to and including removal from federal service. The severity of the action chosen will depend on the circumstances of each case, and will be consistent with the Executive Order, DHS, and NPPD disciplinary policies.

NPPD will initiate disciplinary action against any employee found to use illegal drugs, provided that such action is not required for an employee who voluntarily admits to illegal drug use, and obtains counseling or rehabilitation and thereafter refrains from using illegal drugs. Although disciplinary action is not required for an employee who voluntarily admits to illegal drug use, disciplinary action may be taken depending on the circumstances of each case. Disciplinary action may include appropriate measures consistent with the requirements of governing collective bargaining agreements, the Civil Service Reform Act and other statutes, regulations, DHS, and NPPD policy.

D. Mandatory Removal From Service

NPPD will initiate action to remove an employee from federal service for:

1. Refusing to obtain counseling or rehabilitation through an EAP as required by the Executive Order after having been found to use illegal drugs; or

2. Failing to refrain from illegal drug use after a first finding of such use.

All removal actions will be coordinated with the servicing personnel office, the supervisor, and the Office of the General Counsel.

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E. Refusal to Take Drug Test When Required

An employee who refuses to be tested when so required is subject to the full range of disciplinary action, up to and including removal from federal service.

Any applicant for employment who refuses to be tested will not be extended a final offer of employment. Attempts to alter or substitute the specimen provided will be deemed a refusal to take a required drug test.

F. Voluntary Referral

NPPD is required to initiate action to discipline any employee found to use illegal drugs in every circumstance except that such discipline is not required, but may be taken, for an employee who: 1) voluntarily identifies him/herself as a user of illegal drugs prior to being identified through other means; 2) obtains counseling or rehabilitation through an EAP; and 3) thereafter refrains from using illegal drugs.

The decision to discipline a voluntary referral will be made by the Under Secretary on a case by case basis depending upon the facts and circumstances.

Although an absolute bar to discipline cannot be provided, the NPPD will consider that the employee has come forward voluntarily. Consistent with Section XI.B., an employee may volunteer for a drug test as a means of identification. The results of this test, however, will not constitute a second finding of illegal drug use under subsection D.

VIII. Random Testing

A. Sensitive Positions Designated for Random Testing

Random drug testing is required for employees in sensitive positions, subject to agency criteria. NPPD has determined that the sensitive positions specified in Appendix A of this plan are TDPs subject to random testing. The position titles designated for random drug testing are listed, along with the series, duties, justification, and the approximate number of incumbents in those positions.

B. Determining the Testing Designated Positions

In determining the TDPs, NPPD reviewed all positions characterized by critical safety or security responsibilities and then applied the criteria defined in the Department of Health and Human Services 2013 Guidance for Selection of Testing Designated Positions, as follows:

1. Presumptive TDPs are positions that must be included if such positions exist (unless clear and compelling reasons exist not to do so). The positions are any in which employees:

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a. Are required to carry firearms on a daily or regular basis;

b. Operate motor vehicles carrying passengers, including operators of motor vehicles weighing more than 26,001 pounds and operators of motor vehicles transporting hazardous materials;

2. Preferred TDPs are positions in which the government has strong interests in drug testing. The inclusion or exclusion of these positions must be justified:

a. Certain health and safety positions in which an employee under the influence of drugs could cause immediate, substantial physical injury to others, usually involving a potentially dangerous instrument or machine. These positions are:

• any in which employees are authorized to carry firearms in some circumstances (vs. those who are required to carry firearms on a daily or regular basis which fall within the presumptive category);

b. Presidential appointees requiring Senate confirmation;

c. Front line law enforcement personnel especially those with proximity to criminals, drugs, or drug traffickers;

d. Drug rehabilitation employees with direct client contact in providing treatment services; and

e. Positions having access to truly sensitive information for example, individuals with access to national security material that a “reasonable person” would consider damaging to national interests if compromised. This category of information includes individuals with access to truly sensitive information requiring a clearance of Top Secret; or requiring a Secret clearance where access to truly sensitive information can be demonstrated.

3. Discretionary TDPs are positions that may warrant designation for testing where a clear nexus between the employee’s duties and the potential harm if the employee is under the influence of drugs.

Such positions may include confidential (and above) position sensitivity, health care professionals responsible for direct patient care, firefighters, medical doctors (except those performing research or administrative duties), nurses, nursing assistants, pharmacists, and medical technicians.

NPPD will propose additions to, or deletions from, the random testing pool to the DPA for the approval of the Under Secretary of Management. The DHS Chief Human Capital Officer will submit approved TDP requests for the consultative review and concurrence of the Interagency Coordinating Group Executive Committee.

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C. Implementing Random Testing

The DPC will ensure that the means of random selection remains confidential.

The methodology may be disclosed (e.g., a computer program), but not the particular algorithm. The DPC, in consultation with the DPA, will periodically evaluate whether the numbers of employees tested and the testing frequency satisfy NPPD’s duty to achieve a drug-free work force.

D. Notification of Random Selection

An individual selected for random testing will be notified the same day the test is to occur, preferably within two hours of the scheduled testing. The supervisor, or other designated management official, will explain to the employee that the employee is under no suspicion of taking drugs and that the employee's name was selected randomly.

E. Deferral of Testing

If the employee's first-level supervisor and a higher-level supervisor concur that a compelling need necessitates a deferral of testing, it may be granted on the grounds that any of the following three circumstances exists, i.e., the employee:

1. Is in a leave status (e.g., sick, annual, administrative, leave without pay, etc.);

2. Is in official travel status away from the test site or is about to embark on official travel scheduled prior to testing notification; or

3. Is performing law enforcement duties under cover, the breaking of which for the purposes of drug testing would cause irremediable risk to the employee and/or the investigation.

An employee whose random drug test is deferred will be subject to an unannounced test within the following 60 days. Therefore, the DPC must be notified immediately of all deferrals of testing. In general, telework is not a valid reason for deferral of testing.

IX. Reasonable Suspicion Testing

Reasonable suspicion testing may be required of any employee in a TDP when there is a reasonable suspicion that the employee is using illegal drugs whether on or off duty.

Reasonable suspicion testing may be required of any employee, in any position, when there is reasonable suspicion of on-duty use or on-duty impairment.

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A. Grounds

Reasonable suspicion testing may be based upon, among other things:

1. Observable phenomena, such as the direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;

2. A pattern of abnormal conduct or erratic behavior, not known to be attributable to another cause;

3. Arrest or conviction for a drug-related offense, or if an employee is identified as the focus of a criminal investigation into illegal drug possession, use or trafficking;

4. Information provided either by reliable and credible sources or independently corroborated; or

5. Newly discovered evidence that the employee has tampered with a previous drug test.

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

B. Procedures

If an employee is suspected of using illegal drugs, the supervisor will gather all information, facts, and circumstances leading to and supporting this suspicion, and present the information for the review and concurrence of a higher-level supervisor. The facts leading to the suspicion of illegal drug use will be reviewed by the DPC, Office of the General Counsel, Labor and Employee Relations Specialists or other appropriate official(s) for approval prior to administration of a drug test.

When higher-level concurrence of a reasonable suspicion determination has been made, the appropriate supervisor will promptly prepare a written report detailing the circumstances which form the basis to warrant the testing. This report should include the appropriate dates and times of reported drug-related incidents, reliable/credible sources of information, rationale leading to a decision to test, and the action taken. Written reports will be reviewed by the Office of the General Counsel.

Supervisors will be trained to address illegal drug use by employees, to recognize facts that give rise to a reasonable suspicion, and to document facts and circumstances to support a finding of reasonable suspicion. Failure to

- 25 -receive such training, however, shall not invalidate otherwise proper reasonable suspicion tests.

X. Applicant Testing

A. Objectives

To maintain the high professional standards of the NPPD workforce, it is imperative that individuals who use illegal drugs are screened out during the pre-employment process prior to entrance on duty. This procedure will have a positive effect on reducing the number of NPPD employees found to be using illegal drugs, as an applicant with a positive drug test will not receive a final offer of employment.

For these reasons, drug testing will be required of applicants as defined in Section I.E.1.

B. Job Opportunity Announcements

NPPD Job Opportunity announcements for Testing Designated Positions will include the following statement: "All applicants tentatively selected for this position will be required to submit to a drug test to screen for illegal drug use prior to receiving a final offer of employment. A final offer of employment is contingent upon a negative drug test result.”

NPPD Job Opportunity announcements for all FPS positions will include the following statement: "All applicants tentatively selected for this position will be required to submit to a drug test to screen for illegal drug use prior to receiving a final offer of employment. A final offer of employment is contingent upon a negative drug test result.”

Failure of Job Opportunity announcement to contain this statement will not preclude applicant testing if advance written notice is provided to applicants in some other manner.

C. Procedures for Applicant Testing

Upon notification that an individual has been tentatively selected for employment, the DPC will provide instructions guiding the candidate through the drug testing process. A separate notification will be sent to the applicant notifying the applicant of the date, time, and location of the drug test. The drug test must be undertaken as soon after this notification as possible but no later than 48 hours after notice to the applicant.

In the event of a positive test, applicants will be offered the opportunity to submit medical documentation evidencing a legitimate use of a specific drug. Such

- 26 -information will be reviewed only by the MRO to determine whether the individual is legally using an otherwise illegal drug.

The DPC will ensure, after consultation with the MRO that a drug test has been conducted on that individual and the results reviewed. In the event of a verified positive result, the Human Resources Office will be notified as quickly as possible so appropriate action can be taken to withdraw the tentative job offer.

D. Consequences

NPPD will withdraw the tentative offer of employment made to any applicant with a verified positive test result, and no final offer of employment will be extended.

The Human Resources Office will inform the applicant that a confirmed presence of an illegal drug in the applicant’s urine, or finding that the sample was adulterated or substituted, precludes an offer of employment, based on the grounds that the applicant was unable to meet a condition of employment.

Following a verified positive drug test result, applicants are not to apply for other positions at DHS for a period of one (1) year.

In the event that the selected applicant is preference eligible with a compensable service-connected disability of thirty percent (30%) or more, the current DHS pass-over processes apply.

XI. Other Circumstances for Testing

A. Accident and Unsafe or Unhealthful Practice Testing

NPPD is committed to providing a safe and secure work environment for all personnel. NPPD will seek to determine the cause of serious accidents and will undertake to implement appropriate corrective measures. Employees involved may be subject to testing when, based upon the circumstances of the accident, their actions are reasonably suspected of having caused or contributed to an accident described as follows:

1. The accident resulted in a death or personal injury requiring immediate hospitalization, or

2. The accident resulted in damage to government or private property estimated to be in excess of $10,000.

If an employee is suspected of having caused or contributed to an accident meeting the above criteria, the supervisor will present the facts leading to this suspicion to Management, who will consult as necessary with the DPC, Office of the General Counsel, Labor and Employee Relations, and other advisors as appropriate, to approve the test. Once approval has been obtained, and

- 27 -arrangements made for testing, the supervisor will prepare a written report detailing the facts and circumstances that warranted the testing.

B. Voluntary Testing

In order to demonstrate a commitment to the NPPD goal of a drug-free workplace and to set an example for other federal employees, employees not in TDPs may volunteer for unannounced random testing by notifying the DPC in writing. Upon the receipt of such notification, the DPC will include these employees in the random testing pool, and they will then be subject to the same conditions and procedures, including the provisions of Section VII, as persons in TDPs. Volunteers will remain in the random pool until they withdraw from participation by notifying the DPC in writing, at least 48 hours prior to a scheduled test.

C. Follow-up Testing

In the event that an employee is permitted to return to work after being referred through administrative channels to undergo counseling or rehabilitation for illegal drug use through the EAP, to work, s/he will be subject to unannounced testing for a period of one year following completion of such a program. Such employee will be tested at the frequency stipulated in the abeyance contract or, in the alternative, at an increased frequency of once a month. Such testing is distinct from testing which may be imposed as a part of the EAP.

XII. Test Procedures in General

A. Mandatory Guidelines for Federal Workplace Drug Testing Programs

NPPD will adhere to the Mandatory Guidelines for Federal Workplace Drug Testing Programs promulgated by the Department of Health and Human Services consistent with the authority granted by Executive Order 12564 and to the requirements of Section 503 of Public Law 100-71.