These past couple of months, I focused on writing articles to help federal employees. In doing keyword research, I discovered that there were a lot of google searches for “federal employee drug testing” and not a lot of clear, easy to understand answers. Typically, I would be excited to find a topic like this to write about (and hopefully rank highly for on a search engine page).
However, I never really thought about workplace drug or substance abuse. I am not in a “testing designated position” and therefore would only get drug tested if there was a reasonable suspicion that I was a drug user. Furthermore, I’ve never used drugs and have recently quit drinking alcohol. Who wants to read about the federal employee drug testing program from a goody-two-shoes like me? Also, I’d much rather write about all of the benefits of working for the federal government instead of something like drugs.
On the other hand, it was hard to find clear information about this topic on the internet. I struggled finding the information I needed for this blog post. Hopefully this post is useful and can help potential federal employees understand federal employee drug testing policy and federal employee drug testing laws.
Note: This article represents my own personal writing and does not reflect the views of any government agency or policy. A blog article is not a substitute for legal advice. Please seek legal help or union representation if you need it. Also, please seek professional help if you are suffering from mental health issues or have dependency on any substance.
Table of contents
- What are the federal employment drug test laws?
- Understanding federal employee drug testing- “Testing Designated Positions”
- What positions are Testing Designated Positions (TDPs)
- Federal employee drug testing- what drugs does the federal government test for?
- How does the federal government conduct federal employee drug testing?
- What are the cutoffs for the SAMHSA 5 drug test:
- What if I know I will fail the federal employee drug test?
- Summary- federal employee drug testing
What are the federal employment drug test laws?
You may wonder where the legal authority for the federal government drug testing policy comes from. Depending on your job, you may be covered by one of two different legal authority. For example, if you are a truck driver, the authority comes from the Omnibus Transportation Employee Testing Act of 1991. This act, which covers nearly all transportation workers, covers more than just federal employees. It supersedes other federal drug testing policies where appropriate.
The authority for the remainder of federal employees testing programs comes from Executive Order 12564, Drug-Free Workplace. President Ronald Reagan signed this EO in 1986. The EO prohibited illegal drug use by federal employees whether on or off duty.
Are federal employees drug tested?
Executive order 12564 governs federal workplace drug testing programs. ALL federal employees are covered by EO 12564 and are prohibited from using illegal drugs. However, not all federal employees are subject to random drug testing, or pre-employment drug testing.
Do all federal jobs drug test?
While the EO 125645 applies to all federal employees, it instructed each Agency to develop their own drug free workplace program. The Agencies must coordinate with the US Department of Health & Human Services Substance Abuse and Mental Health Services Administration, or SAMHSA. Therefore, most Agencies have similar drug testing policies. However, there may be key differences on which positions require random drug testing.
Can federal employees be drug tested?
Any federal employee may be drug tested at any time if:
- There is a “reasonable suspicion” that the federal employee is using drugs
- They have an accident at work.
Furthermore, certain positions, called testing designated positions” or TDP are subject to random drug testing, applicant drug testing, or both.
Understanding federal employee drug testing- “Testing Designated Positions”
Two different authorities exist for drug testing, as a result, there are two types of testing designated positions, or TDPs.
Employees covered by the Omnibus Transportation Employee Testing Act of 1991
Federal employees covered by the Omnibus Transportation Employee Testing Act of 1991 must be randomly drug tested. (I will refer to these as DOT drug testing positions). The agency must test these employees as part of the hiring process. The agency must test 50% of these positions each year, as required by the Act.
Testing designated positions under Executive Order 12564
EO 12564 instructs each Agency to set up their own testing program. As such, they can name certain positions as TDPs. Each agency sets their own policy on the percentage of the TDP to randomly test. For example, the USDA tests 10% of their TPD each year. The Agency may or may not drug test these positions as a condition of employment. For example, within the USDA, some TDPs must undergo both applicant and random testing. Other TDPs are subject only to random testing.
Your position description must state whether you belong to a TDP and also the conditions of your random testing.
What positions are Testing Designated Positions (TDPs)
Perhaps you want to apply for a federal job but are unsure if it will be drug tested. SAMHSA issued guidance in 2010 on which positions should be classified as a TDP. While the ultimate authority rests with the Agency, most have followed these guidelines. The guidelines break federal jobs into 3 categories based upon litigation: jobs that should be a TDP, jobs that may have a TDP, and jobs that are “disfavored” from having a TDP. These have been determined through litigation. While I’m not a lawyer it appears that unless a job falls in the top two categories, the Agency must create a strong legal justification for why these jobs must be a TDP.
Almost certainly a TDP:
- Agency heads
- Political appointees
- Employees authorized to use firearms
- Railroad/Aviation personnel
- Law enforcement
- People with a security clearance
- People who help rehabilitate drug users
Agency discretion TDP:
Each Agency has a different mission and therefore may have unique positions that may require random drug testing. Some examples may be:
- Health care professionals
- Confidential security clearance holders
Specifically disfavored TDPs
If your job does not fall under one of the two categories above, it is likely that your position does not have random drug testing. (Please note that the government can test you at any time for reasonable suspicion or a workplace accident.)
The SAMHSA guidance classifies some jobs as “specifically disfavored”. It appears that the government has lost legal challenges over whether these positions should be randomly drug tested.
- “Positions designated based upon the need to foster public trust”
- “Access to sensitive information not meeting the “truly sensitive” criteria, e.g. personnel files, budget and financial information”
Federal employee drug testing- what drugs does the federal government test for?
Again, each Agency can establish their own drug testing policy. However, most Agencies test for the so called “SAMHSA 5”.
The SAMHSA five drugs are:
- Phencyclidine (PCP)
It is important to note that in addition to the SAMHSA drug test, DOT TDPs must also be tested for the presence of alcohol.
Can I smoke marijuana if it is legal in my state?
Many states are now legalizing marijuana for recreational or medical use. However, as a federal employee, you are still subject to EO 12564. Furthermore, marijuana is still an illegal federal drug. Therefore, regardless of the legality of marijuana in your state if you test positive for THC as a federal employee you can be in trouble.
Does federal employee drug testing test for CBD?
The SAMHSA drug test looks for THC as the marker for marijuana. In addition to states legalizing marijuana, CBD oil is also becoming popular. While there isn’t a lot of information about CBD oil on Agency webpages, I did receive an email a while ago discussing CBD oil. The Agency email stated that many CBD oils contain trace amounts of THC and that taking CBD oil may cause you to fail a drug test. It also reiterated the Agency’s believe that it was inappropriate for federal employees to consume CBD oil. I also read this very sad story of a federal employee who lost his job because of CBD. My guess is that as CBD oil becomes more popular, there will be more official Agency guidance in the future.
How does the federal government conduct federal employee drug testing?
The federal drug free workplace policy requires that urine samples be collected. However, some Agencies may also be collecting oral fluids.
If selected for a test, you will report to a testing site, provide identification and then provide a urine sample. Typically, you will be able to provide the urine sample in private unless there are extenuating circumstances. After urinating into the cup, you will return it to the technician who will divide the sample into an “A” sample and “B” sample and place the urine specimens in a sealed bag. You will be able to observe the technician placing the samples in the sealed bag and place a federal custody control form on the bag to track the chain of custody. In this way, you can be sure that your drug sample will not be swapped with someone else’s. A medical officer will then review the results provided by the testing company.
What are the cutoffs for the SAMHSA 5 drug test:
SAMHSA publishes the cutoffs for the SAMHSA 5 drug test. Note that if an initial test is positive, a confirmatory analyte will be examined. If you’re reading this section, you may wish to know if you will pass a drug test. According to my Agency’s drug policy training, the detection time for the SAMHSA 5 drugs are as follows:
- Marijuana: occasional user- 1 week, chronic user, 1 month after use
- Cocaine: 2-3 days after use
- Amphetamines: 1-2 days after use
- Opiates: 2 days after use
- PCP: 8 days after use
- Alcohol: hours after use
Please note that the above information was provided for information use only. Your body may metabolize drugs at a different rate than listed above. Furthermore, I do not wish for anyone to try to risk their job by doing drugs.
What if I know I will fail the federal employee drug test?
If you know you will fail the federal employee drug test, some Agencies have a “safe harbor” rule. This rule allows you to declare that you have done drugs before providing your sample. (You cannot wait until your test results come back to declare safe harbor!) Safe harbor protects the employee from disciplinary action because of their disclosed substance abuse issues while they undergo a treatment program.
Your Union probably negotiated your safe harbor program if you have one. If you’re a bargaining unit employee, you may wish you reach out to your union to understand the safe harbor rules and when to invoke safe harbor.
Summary- federal employee drug testing
Hopefully this answers all of your questions about federal employee drug testing. I certainly learned a lot writing the post. I hope you learned something too. If you are suffering from drug addiction, please seek out your employee assistance program. They can help you find resources for a drug addiction treatment program.
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