United Sta\es General Accounting Office -7 Fact Sheet for the Chairman, Gil0 Subcommittee on Treasury, Postal Service, and General Government, Committee on Appropriations, US. Senate April 1990 DRUG TESTING Action by Certain Agencies When Employees Test Positive for Illegal Drugs --, ?a RlllHlllR RR 141330 -~ GAO/GGD-90-66FS United States General Accounting Offke Washington, D.C. 20548 General Government Division B-238649 April 6,lQQO The Honorable Dennis DeConcini Chairman, Subcommittee on Treasury, Postal Service, and General Government Committee on Appropriations United States Senate Dear Mr. Chairman: In an October 23, 1989, meeting with your subcommittee, we agreed to explore certain issues that we identified during previous reviews of federal agency drug-testing programs. This fact sheet, prepared as part of this effort, provides information on one of the issues we identified--the actions that selected employers take when their employees test positive for illegal drugs. BACKGROUND In an effort to help eliminate the use of illegal drugs by federal employees, President Reagan issued Executive Order 12564, requiring each executive branch agency to establish a program to test for the use of illegal drugs by employees in sensitive positions. The executive order, which was issued on September 15, 1986, requires agencies to initiate action to discipline any employee who is found to use illegal drugs unless the employee voluntarily admits to using illegal drugs, obtains appropriate counseling and rehabilitation, and thereafter refrains from using them. The order also requires the Office of Personnel Management (OPM) to issue governmentwide guidance for agencies to use in initiating disciplinary actions against employees found to use illegal drugs. The OPM guidelines established disciplinary measures that ranged from reprimanding the employee in writing to removing the employee from federal service, and gave agencies discretion in deciding which disciplinary measure to initiate. In exercising this discretion, however, agencies are to consider other relevant factors such as an employee's B-238649 past work and disciplinary action records, the employee's potential for rehabilitation, and the impact of the employee's action on the agency's reputation.1 RESULTS IN BRIEF On May 20, 1987, we provided congressional testimony on OPM's guidelines for establishing a drug-free federal workplace. In it, we pointed out that because of the range of penalties that could be imposed, disciplinary actions an employee may face could vary from agency to agency or even within an agency. Information we obtained at three federal agencies we visited confirmed the view expressed in our testimony. The actions taken against employees testing positive for illegal drugs ranged from firing employees after the first positive testing to transferring them without rehabilitation to positions in which they were no longer subject to random testing. OBJECTIVES, SCOPE, AND METHODOLOGY Our objectives were to identify the differences in employer actions when employees test positive for illegal drugs and determine the basis for these actions. To achieve these objectives, we examined the random drug-testing programs at the Department of the Army, the Department of Transportation, and the Drug Enforcement Administration (DEA). These programs were selected because they were the first executive branch random drug-testing programs implemented. We also reviewed OPM's guidance and the provisions of the Civil Service Reform Act that pertain to 1The U.S. Merit Systems Protection Board, which by law has authority to review appealable disciplinary actions, has ruled that it will review relevant mitigating and aggravating factors in deciding what penalty to impose in each case. Thus, agencies must give due consideration to these factors. Douglas v. Veterans Administration, 5 MSPB 313, 331-33 (1981). 2 B-238649 disciplinary actions against employees found to use illegal drugs. We reviewed records and documents related to drug-testing activities at the three agencies and interviewed officials associated with the drug-testing programs. Within the Department of the Army, we also reviewed available records at the Depot System Command (DESCOM), because Army officials told us that DESCOMwas where slightly over 3,000 of the Army's 10,000 civilian employee positions subject to random testing were located. Our work was done from November 1988 to December 1989, in accordance with generally accepted government auditing standards. ACTIONS TAKEN BY DESCOM At DESCOM, employees who tested positive for illegal drugs were offered rehabilitation. Subsequent actions varied within the agency. Some employees who tested positive twice for illegal drugs were fired. One employee who refused rehabilitation was also fired. Others were permanently reassigned or demoted to positions in which they were no longer subject to random drug testing. According to an attorney in the headquarter's office of the Judge Advocate General, each Army installation commander is vested with the authority to make the final decision for disciplinary actions at his or her installation. He also said that since Executive Order 12564 and OPM guidance give discretion to the agencies, such disciplinary actions could be appropriately taken. Available information shows that 13,861 random drug tests were done at DESCOMbetween May 1986 and September 1989. The information also shows that 110 employees tested positive for illegal drugs. As indicated in appendix I, 34 of these individuals were permanently reassigned or demoted to a position that was not subject to random testing and 7 were fired as of October 1, 1989. When it was a first offense and the employee refused rehabilitation, DESCOM fired one employee and permanently reassigned or demoted five others to positions in which they would no longer be 3 B-238649 subjected to random drug testing. Four employees who tested positive twice for illegal drugs were fired, and 14 were permanently reassigned or demoted to positions in which they would not be subjected to future random drug tests. Six of DESCOM's employees were permanently reassigned to positions in which they would not be subjected to future random drug testing without being offered rehabilitation. According to an Army official, these six were among the very first employees who tested positive and, at that time, how to deal with such individuals was unclear. ACTIONS TAKEN BY THE DEPARTMENT OF TRANSPORTATION According to Department of Transportation procedures, employees who test positive for illegal drugs are to be offered rehabilitation. If the offer of rehabilitation is not accepted, the employee is to be fired. If it is accepted and the employee successfully completes rehabilitation, tests negative for illegal drugs for one year I and meets agreed aftercare rehabilitation requirements, the employee is put back into the random testing pool. The employee is reminded that a second positive drug test at any time following completion of rehabilitation will result in immediate removal. According to a Department of Transportation official, these procedures provide the Department with the opportunity to overcome any drug-related problems. As indicated in appendix II, 20,414 random drug tests were done between July 1988 and September 1989. These tests identified 115 employees who tested positive for illegal drugs, 8 of whom were fired. Four of the employees failed to complete rehabilitation and, according to drug-testing program officials, were fired because they were assigned to public safety positions that required public confidence. The remaining four employees tested positive a second time. 4 B-238649 ACTIONS TAKEN BY DEA Though DEA policy states that a range of disciplinary actions is available when an employee is found to use illegal drugs, officials said such employees would be fired except in unusual circumstances. We were told that one situation in which an employee might not be fired for testing positive for an illegal drug could involve the use of medication containing a narcotic that was legally prescribed to an immediate family member. DEA officials thought that in such a case, firing the employee might be too severe a punishment for the situation. As indicated in appendix III, 1,222 random drug tests were done between July 1988 and September 1989. DEA fired one of the five employees who tested positive, and the remaining four employees resigned. According to the DEA Administrator, because of the nature of law enforcement at that agency, it must take a firm stand against employees found to use illegal drugs. The official said that if the testimony of a DEA employee could be questioned in a criminal court case because the employee had been found to use illegal drugs, the employee's actions could jeopardize the chance of obtaining a successful criminal prosecution. AN OPM OFFICIAL BELIEVED ACTIONS TAKEN WERE IN ACCORDANCEWITH ESTABLISHED GUIDANCE An official in the OPM Office of General Counsel believed that the actions taken at the Departments of the Army and Transportation and DEA were in accordance with OPM guidance and the executive order. He said that because the guidance requires agency officials who decide on the appropriate disciplinary action to consider other factors, the type of disciplinary action taken for the same misconduct may differ across and within agencies. Y 5 B-238649 This fact sheet was prepared to provide information on the actions being taken by federal employers when an employee tests positive for illegal drugs. Its contents were discussed with officials of the Department of the Army, the Department of Transportation, DEA, and OPM. All of the officials agreed with the facts presented. As requested, we plan no further distribution of this report until 30 days from its issue date unless the contents are announced earlier. The major contributors to this fact sheet are listed in appendix IV. If you have any questions concerning the report, please contact me at 275-5074. Sincerely yours, Bernard L. Ungar u Director, Federal Human Resource Management Issues ,” CONTENTS Page LETTER 1 APPENDIXES I STATUS AS OF OCTOBER 1, 1989, OF DESCOM EMPLOYEES TESTING POSITIVE FOR ILLEGAL DRUGS THROUGH RANDOMTESTING FROM MAY 1986 TO SEPTEMBER 1989 8 II STATUS AS OF NOVEMBER17, 1989, OF DEPARTMENT OF TRANSPORTATION EMPLOYEES TESTING POSITIVE FOR ILLEGAL DRUGS THROUGHRANDOM TESTING FROM JULY 1988 TO SEPTEMBER 1989 9 III STATUS AS OF NOVEMBER30, 1989, OF DEA EMPLOYEES TESTING POSITIVE FOR ILLEGAL DRUGS THROUGHRANDOMTESTING FROM JULY 1988 TO SEPTEMBER 1989 10 IV MAJOR CONTRIBUTORS TO THIS REPORT 11 ABBREVIATIONS DEA Drug Enforcement Administration DESCOM Depot System Command OPM Office of Personnel Management I I APPENDIX I APPENDIX I I STATUS AS OF OCTOBER 1, 1989, OF DESCOM EMPLOYEES TESTING POSITIVE FOR ILLEGAL DRUGS THROUGH RANDOMTESTING FROM MAY 1986 TO SEPTEMBER 1989 Number Actions 41 Employees who tested positive in random drug tests that DESCOM took action against 34 Permanently reassigned or demoted to non-random testing designated position 5 After refusing rehabilitation 7 After completing rehabilitation 6 After testing positive oncea 14 After testing positive twice 2 After testing positive once and admitting to second incident of drug use later 7 Fired 1 After refusing treatment (fired in fiscal year 1986) 4 After testing positive twice 1 After testing positive once (probationary employee) 1 For reason other that illegal drug use -- theft 9 Currently in rehabilitation 45 Completed rehabilitation, returned to random testing designated position 15 Resigned 10 After testing positive once 5 After testing positive twice Ilo Total employees testing positive for illegal drugs 13,861 Total random tests conducted aThese were six of the very first positive drug tests. The employees were permanently reassigned to non-random testing positions without being offered rehabilitation, as guidance at that time was unclear. 8 APPENDIX II APPENDIX II STATUS AS OF NOVEMBER 17, 1989, OF DEPARTMENT OF TRANSPORTATION EMPLOYEES TESTING POSITIVE FOR ILLEGAL DRUGS THROUGH RANDOMTESTING FROM JULY 1988 TO SEPTEMBER 1989 Number Actions 8 Fired 4 After failing to complete rehabilitation 4 After testing positive twice 13 Currently in rehabilitation 63 Completed rehabilitation, returned to random testing designated position, and currently in the DOT follow-up programa 18 Completed the l-year follow-up program 12 Resigned 7 After testing positive once 1 During rehabilitation 3 After testing positive twice 1 Before being removed for tampering with test 1 Retired Total employees testing positive for illegal drugs 20,414 Total random tests conducted aUnder the follow-up program the employee is subject to unannounced testing for 1 year after return to safety/security duties or completion of the rehabilitation program, whichever is later. 9 I / I APPENDIX III APPENDIX III STATUS AS OF NOVEMBER30, 1989, OF DEA EMPLOYEES TESTING POSITIVE FOR ILLEGAL DRUGS THROUGH RANDOM TESTING FROM JULY 1988 TO SEPTEMBER 1989 Number Actions 4 Resigned 1 Fired 2 Total employees testing positive for illegal drugs 1,222 Total random tests conducted Y 10 ~APPENDIX IV APPENDIX IV MAJOR CONTRIBUTORS TO THIS REPORT GENERAL GOVERNMENTDIVISION, WASHINGTON, D.C. / / Norman Stubenhofer, Assistant Director, / Federal Human Resource Management Issues NORFOLK REGIONAL OFFICE ' James G. Bishop, Regional Management Representative Robert Aughenbaugh, Evaluator-in-Charge Henry Arzadon, Site Senior Angela Pun, Evaluator (966420)& 11 ------ .v-v--- _.“l.-I”..c- -_.-- .I.-_ .-... -“I-______~ First-Class Mail Postage & Fees Paid GAO 1 Permit No. GlOO Pctzalty for Private IJse $300
Drug Testing: Action by Certain Agencies When Employees Test Positive for Illegal Drugs
Published by the Government Accountability Office on 1990-04-06.
Below is a raw (and likely hideous) rendition of the original report. (PDF)