U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210
Drug-Free Workplace Act
October 16, 1990
|DIRECTIVE||:||TRAINING AND EMPLOYMENT INFORMATION NOTICE NO. 15-90|
|TO||:||STATE JTPA LIAISONS
STATE EMPLOYMENT SECURITY AGENCIES
|FROM||:||ROBERTS T. JONES
Assistant Secretary of Labor
|SUBJECT||:||Drug-Free Workplace Regulatory Requirements|
Purpose. To explain the responsibilities of the Employment and Training Administration (ETA) and its grantees under the Drug-Free Workplace Act regulatory requirements. This information notice updates and replaces Training and Employment Information Notice (TEIN) No. 1-89 and transmits a sample certification and the Federal Register Notice, Part II, Drug-Free Workplace Requirements; Notice and Final Rules dated May 25, 1990.
References. Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.); 29 CFR Part 98 (Federal Register 54 FR 4946) and (Federal Register 55 FR 21679) ; Training and Employment Information Notice (TEIN) No. 21-88; and TEIN No. 1-89.
Background. On November 18, 1988, Congress enacted the Drug-Free Workplace Act requiring Federal agency contractors and grantees to certify that they will provide a drug-free workplace as a pre-condition of receiving a contract or a grant from a Federal agency after March 18, 1989.
The Office of Management and Budget (OMB) coordinated the participation of over 30 Federal agencies, including the Department of Labor, in the development of regulatory requirements to ensure prompt compliance, prompt issuance of final rules, and uniform government-wide implementation of the Act.
The government-wide rule was issued as an interim final rule, published Tuesday, January 31, 1989, Vol. 54, No. 19 Federal Register, and was added as a new Subpart F to the Department's nonprocurement debarment and uspension regulations at 29 CFR Part 98. As an interim final rule, this regulation was fully in ef fact and binding after its effective date of March 18, 1989. Comments were solicited.
The government-wide rule was then issued as a final rule, published in the Friday, May 25, 1990, Vol. 55, No. 102 Federal Register. This final rule amends the interim final rule in response to public comment. The final rule was effective July 24, 1990, with the exception of an effective date of June 25, 1990 for certification by those States and State agencies that planned to certify under subsections 29 CFR 98.630(c) and (d).
The Federal Acquisition Regulation (FAR) rules for contracts are contained in the same Federal Register notice but are not covered in this information notice which is addressed only to State grantee organizations. The requirements for individuals are not covered for the same reason.
The Drug-Free Workplace common rule for grants amends the government-wide Nonprocurement debarment and suspension common rule at 29 CFR Part 98 to allow agencies to make use of existing debarment and suspension remedies as sanctions for non-compliance with the requirements of the Drug-Free Workplace Act. It should be noted that, in contrast to the debarment common rule, the drug-free common rule applies only to prime grantees and does not extend to subgrantees.
These requirements were effective for all grants awarded on or after March 18, 1989 or for grants existing prior to March 18, 1989 if modified "in such a manner that it would be considered a new commitment." Grantees are not required to make a certification in order to continue receiving funds under a grant awarded before March 18, 1989, or under a no cost time extension of such a grant. (See also section No. 6(B)(2) of this TEIN, Frequency of Certification, and section No. 11, Exemptions.)
Definitions: "Controlled, substance" means a controlled substance as it is used in schedules I through V of sections 202 of the Controlled Substances Act (21 U.S.C. 812). and as further defined by regulation at 21 CFR 1300.11 through 1300.15. Neither the regulations nor this TEIN expand upon the definition.
"Grant" means an award of financial assistance, including a cooperative agreement, in the form of money, or property in lieu of money, by a Federal. agency directly to a grantee. The term grant includes block grant and -entitlement grant programs, whether or not exempted from coverageunder the grants management government-wide common rule on uniform administrative requirements for grants and cooperative agreements. (See also section No. 10 of this TEIN, Coverage, and 29 CFR 98.605(b) (7) for the complete definition.)
"Grantee" means a person who applies for or receives a grant directly from a Federal agency.
"Person" is defined in the debarment regulations at 29 CFR 98.105(n) as "any individual, corporation, partnership, association, unit of government or legal entity, however organized...."
In the final rule, the definition of "employee" has been made more specific. The term employee includes persons hired by the grantee to manage the program and serve participants but does not include the program participants. Whether or not the person is on the payroll of the grantee is key to this definition. It includes all "direct charge" employees and all "indirect charge" employees unless their impact or involvement is insignificant to the performance of the grant. It includes temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll, even if not paid from grant funds.
This definition does not include workers not on the payroll of the grantee, such as employees of a subcontractor, even if their physical place of employment is in the grantee's covered workplace.
Requirements. After March 18, 1989, the ETA is not allowed to award a grant or to modify a grant that involves a new award, unless it has received a certification (or in the case of States, a copy of the certification) that the potential grantee will maintain a drug free workplace. The ETA Grant Officer must be satisfied that this certification requirement has been fulfilled by the potential grantee prior to making an award.
As a pre-condition to receiving a grant, a potential grantee shall certify to the ETA that it will maintain a drug-free workplace by (see 29 CFR 98 Appendix C for the exact text):
(a) Publishing and distributing to each employee a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace, and specifying the action that will be taken against employees for violation of such prohibition.
(b) Establishing an on-going drug-free awareness program to inform employees about (1) the dangers of drug abuse in the workplace, (2) the grantee's drug-free workplace policy, (3) any available drug counseling, rehabilitation, and employee assistance programs, and (4) the penalties for drug-abuse violations occurring in the workplace.
(c) Providing each employee with a statement including language required by (a) above and
(d) notifying the employee that, as a condition of employment the employee is to abide by the statement and is to notify the grantee within five calendar days if he or she is convicted for a violation of a criminal drug statute which occurred in the workplace.
(e) Notifying the Grant Officer in writing within 10 calendar days of receiving notice of any drug violation conviction. Such notifications shall be sent to the appropriate ETA Grant Officer and shall include the identification number(s) of each affected grant and the employee's position title. If the ETA was notified at the time of the violation through the Incident Report system, a supplemental report should be submitted at the time of notice of conviction.
(f) Within 30 calendar days of receiving notice of a conviction, taking one of the following actions, with respect to the employee convicted, (1) a personnel action against the employee up to and including termination (consistent with the requirements of the Rehabilitation Act of 1973), or (2) requiring such employee to participate satisfactorily in a drug-abuse assistance or rehabilitation program. (See the attached regulations and certification for more specific language on all of the above requirements.)
Neither the Act nor the rules authorizes drug testing of employees. On the other hand, drug testing in response to other Federal or State legislation is not prohibited.
Frequency of Certification. Under the interim final rules published January 31, 1989, the certification requirements, especially for States and State agencies, were not clear and were at times confusing. The final rule expands the options available to States and attempts to clarify the requirements.
(A) All grantees, other than States and State agencies, are required to make the drug-free certification for each grant. (The use of the word "State" in this section should be understood to include State agencies unless otherwise indicated.)
(B) A grantee, which is a State, has a number of different options to choose from in order to certify that it will maintain a drug-free workplace (see 29 CFR 98-630).
(1) A State or State agency may always elect to make a drug-free certification for each grant or award. The certification should be submitted to the ETA Grant Officer responsible for making the awards under the grant prior to the award of the grant.
(2) A State or State agency receiving a mandatory formula grant or entitlement that has no application process (no formal application), shall submit a one-time certification in order to continue receiving awards (29 CFR 98.630(b)). This one-time certification agrees to maintain an ongoing drug-free workplace program that continues throughout the life of the grant or as long as the grantee continues to receive the mandatory award. This "one time" certification will only satisfy the requirement for mandatory awards (e.g. JTPA Title II A/B and III Formula grants).
A State or State agency, receiving a mandatory formula grant(s), is required to make a one-time certification using the format published in Appendix C of the final rule (attached). This certification# using the new format, is required even if the State or State agency has previously submitted an annual certification. This certification need not be repeated in subsequent fiscal years as long as the content of the certification to which the State has certified does not change. The certification should be submitted to the ETA Grant Officer responsible for making the mandatory award(s) under the grant. These "one time" certifications were due July 24, 1990.
A State or State agency which receives a mandatory formula grant and other non-mandatory awards from the DOL will be able to fulfill all its certification requirements with the "one-time" certification.
(3) The requirements for States and State agencies under the following single annual-certification option are slightly different and so are presented separately.
(A) STATEWIDE. A State may elect to make one statewide certification in each Federal fiscal year which would cover all State agencies. The regulations required States to make a certification for FY 1990 by June 30, 1990 (29 CFR 98-630(c)). States which have made a certification in FY 1990 under the Interim Final Rule are not required to re-certify for FY 1990.
For FY 1991 and all subsequent fiscal years, each State electing the single annual Federal fiscal year option shall sign a statewide certification prior to the beginning of the subject fiscal year in order to submit a copy of the certification with applications for grants that run concurrently with or during the fiscal year.
Certifications are to be signed by the Governor or by a State official authorized to commit the State and its agencies to the requirements of the Drug-Free workplace regulations. The certification shall follow the format published in Appendix C of the final rule (attached). The original of the certification itself is to be retained in the Governor's office. A copy of the certification must be submitted to the ETA Grant officer responsible for making the awards under each grant prior to the discretionary award.
The interim final rule permitted grantees to submit one annual certi-fication to a central DOL location. The final rule, however, requires the submission of a copy of the annual certification be submitted individually with respect to each grant, un1gss the Federal agency designates a central location for submission. The DOL and the ETA have decided to designate a central location for submission. Therefore, States are to submit copies of the certification to the appropriate ETA Grant Officer prior to the award.
The Governor of a State may exclude certain state agencies from the statewide certification and authorize those agencies to submit their own certifications to Federal agencies. The statewide certifications shall name any State agencies so excluded.
(B) STATE-AGENCY WIDE. A State agency to which the statewide certification does not apply or a State agency in a State that does not have a statewide certification, may elect to make one agency-wide certification in each Federal fiscal year.
The regulations required State agencies to make a DrugFree Workplace certification for FY 1990 by June 30, 1990. State agencies which have made a certification in FY 1990 under the Interim Final Rule are not required to re-certify for FY 1990.
For FY 1991 and all subsequent fiscal years, each State agency electing the single annual Federal fiscal year option shall sign the agency-wide certification prior to the beginning of the subject fiscal year in order to submit a copy of the certification with applications for grants that run concurrently with or during the fiscal year.
Certifications are to be signed by a State official authorized to commit the agency to the requirements of the Drug-Free Workplace regulations. Certifications shall follow the format published in Appendix C of the final rule (attached). The certification itself is to be retained in the central office of the State agency. A copy of the certification must be submitted to the Grant officer responsible for making the awards under each grant prior to the award. (The DOL and the ETA have decided to designate a central location for submission. See (3)(A) above.)
Listing of Worksites. Federal agencies in order to audit grantee compliance, must have access to the addresses or locations of workplaces to which Drug-Free Workplace requirements apply - The final rule amended the listing of workplace requirements so that grantees may elect one of three available options.
Grantees shall: 1) list the locations of workplaces on the certification document; or 2) list the locations of workplaces on the grant application or submit a separate list of workplaces prior to the award, if there is no application; or 3) maintain a list of workplaces on file and available for inspection by Federal agencies in the office of the Governor or State agency. The list of worksites is to be updated annually at the time of certification or on the anniversary of the certification, for those grantees with a one-time certification.
These lists must identify the street address or location of the workplace(s) in those instances in which work is to be performed at specific sites. In other situations, it may be necessary to use a categorical identification instead of specific sites.
The common rule defines, in relevant part, Drug-free workplace as a "site for the performance of work done in connection with a specific grant..." (29 CFR 98.605(b) (4)). In the preamble to the interim common rule, it stated that the term "site for the performance of work" is taken directly from the statute and it is intended that the grantee will determine what the "site for the performance of work" is and specify such in the grantee's certification - amended by the final rule to certification, application, or in a list on file with the grantee.
In determining the n er of "site (a) for performance of work," to be listed, it should be noted that only the "prime grantee, and not "subgrantees," are covered by requirements under this subpart. Although not specifically addressing the number of sites to be listed, the preamble to the interim final rule stated that, if a Federal agency provides financial assistance to a State agency, which in turn passes through the assistance to several local agencies, only the State agency that receives the assistance directly from the Federal agency receives the "grant. " Consequently, it is only the State agency that is required to make a drug-free workplace certification under the regulation (section by Section Analysis - 54 FR 4948).
Again, emphasizing the limits of the requirements, the preamble to the interim final rule states that only "prime grantees" and not "subgrantees" are covered by requirements under the new Subpart F (Section by Section Analysis - 54 FR 4949).
Grounds for Suspension, Termination or Debarment. Grantees determined to be in violation of any of the following will be subject to the imposition of sanctions set forth in the Act:
a) Submission of a false certification;
b) Failure to comply with the requirements of the certification; and
c) Failure by the grantee to make a good faith effort to maintain a drug-free workplace. Lack of a good faith effort would be indicated by such a n er of the grantee's employees having been convicted under criminal drug statutes for violations occurring in the workplace. Circumstances of grantees vary widely so that the actual n er of violations will be determined on a case by case basis.
The preamble to the interim final rule specifically states that criminal drug violations by employees not occurring in the workplace are not grounds for a sanction. Likewise, evidence of drug abuse by employees in the workplace that does not result in a criminal conviction is not a ground for a sanction.
Sanctions. Sanctions set forth in the Drug-Free Workplace Requirements include: a) Suspension (ie., withholding) of payments under the grant; b) Suspension or termination of the grant; and c) Suspension or debarment of the grantee. The decision of which sanction or sanctions to apply in a particular case is left to the discretion of the Federal grantor agency.
In determining the level of organization at which a sanction should be imposed in case of a violation of the certification requirements, the regulation, where appropriate, focuses on the "department, division, or other unit" of the grantee responsible for performance under the grant. For example, if several different organizational units of a State agency receive grants from a Federal agency, and one of the State organizational units violates a requirement of the regulation, sanctions should be imposed on that organizational unit, not on the entire State agency. On the other hand, where it is appropriate, in the context of a particular Federal grant program, to view the entire grantee organization as responsible for the implementation of drug-free workplace requirements under this rule, the entire organization could be subject to sanctions.
If the third sanction, debarment, is exercised, the debarred grantee is ineligible for the award of any grant from any Federal agency for a period, to be specified in the final decision, not to exceed five years. The rules include a provision which allows the agency bead to issue a written waiver of any of these sanctions, if the agency head determines that such a waiver would be in the public interest. The determination of the "public interest" is within the discretion of the agency head (i.e., in the DOL, the Secretary of Labor) and this waiver authority may not be delegated.
The review and administrative appeal available to grantees can be found in the debarment procedures at 29 CFR 98.310.
The debarment regulations at 29 CFR 98.200 state that debarment or suspension does not affect a person's (organization's) eligibility for statutory entitlements or mandatory awards.
Coverage. For the purpose of the Drug-Free Workplace Act, grants include block grants and entitlement grant programs, whether or not they are exempted from coverage under the grants management common rule (Uniform Administrative Requirements f or Grants and Cooperative Agreements to State and Local Governments).
Subgrantees, are not required to make a drug-free workplace certification under the regulation.
Exemptions. Exemptions include grants providing technical assistance in the form of in-kind services; other assistance in the form of loans, loan guarantees, interest subsidies, insurance; direct appropriations; and any veterans' benefits to individuals.
Current grantees, whose grants were approved and awarded prior to March 18, 1989, are not required to make certifications in order to continue receiving payments under existing grants.
Grantees are not required to make a certification prior to a no-cost time extension of an existing grant.
Costs. A grantee's costs incurred specifically to comply with these requirements are allowable costs under the grant, provided that the costs meet the usual criteria for allowability.
Grantees are not required by the common rule to provide or pay for rehabilitation programs.
Effective Date. This Training and Employment Information Notice shall be effective as of the date of issuance.
Rescission. Training and Employment Information Notice No. 1-89.
Inquiries. Questions concerning this information notice should be directed to James MacDonald on (202) 535-0704. Grantees may also contact their respective ETA Grant Officers regarding specific certification questions.
Attachments. (1) Federal Register Notice - - "Drug Free Workplace Requirements; Notice and Final Rules," and (2) Sample certification format.
Instructions For The Attached
Sample Drug-Free Workplace Certification
(Source: Federal Register Vol. 55, No. 102, Friday, May 25, 1990)
Please read the instructions carefully. By signing the accompanying document, the grantee is providing the assurance that it will fulfill the requirements set forth by the Drug-Free Workplace Act of 1988 and its implementing regulations cc>dified at 29 CFR 98 Subpart F.
The certification set out below is a material representation of fact upon which reliance is placed when the Federal agency awards the grant. If it is determined that the grantee knowingly rendered a false certification, or otherwise violated the requirements of the Drug-Free Workplace Act, the Employment and Training Administration (ETA), in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act.
Workplaces under grants need not be identified on the certification.If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and available for Federal inspection. Failure to identify all known workplaces constitutes a#violation of the grantee's drug-free workplace requirements.
Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g. all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
If the workplace identified by the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplace in question.
Definitions of terms in the NonProcurement Suspension and Debar-
ment common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules:
"Controlled substance" means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15) ;
"Conviction" means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes;
"Criminal drug statute" means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing-, use, or possession of any controlled substance;
"Employee" means the employee of a grantee directly engaged in the performance of work under a grant, including (i) All "direct charge" employees; (ii) all "indirect charge" employees unless their impact or involvement is insignificant to the performance of the grant and (iii) temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g. volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll or employees of subrecipients or subcontractors in covered workplaces).
Drug-Free Workplace Requirements Certification
Alternate I. (Grantees Other Than Individuals)
Persuant to the The Drug-Free Workplaoe Act of 1988, and its implementing regulations codified at 29 CFR 98, Subpart F, I,_____________________ the undersigned, in representation of _________________________, the grantee, attest and certify that the grantee will provide a drug-free workplace by:
Check ( ) if there are workplaces on file that are not iden-tified here.
Check ( ) if an additional page was required for the listing of the workplaces.
I declare, under penalty of perjury under the laws of the United States, and under the Penalties set forth by the Drug-Free Workplace Act of 1988, that this certification is true and correct.
Signature (Typed Name and Title)
I, _________________________, certify that I am the ___________________ of
(Signer Name) (Official Title)
_____________________, the grantee; that I who sign this Drug-Free
workplace certification on behalf of the grantee, do so by the authority
given by _____________________ , and such signing is within the scope
(Source of Authority)
of my powers.
Executed on: __________________