oversight

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)

                   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).

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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
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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.




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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




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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




                                      ,ā€
                                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




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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)&


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