No statutory authority exists. The Drug-Free Work Force requirements are contained in the Department of Defense Federal Acquisition Regulation Supplement (DFARS), Subpart 223.570 with the required clause at 252.223-7004.
While the Drug-Free Workplace (P.L. 100-690) addressed the problems of drug manufacture, distribution, dispensation, possession or use of a controlled substance in the workplace, the Drug-Free Work Force requirement addresses employee involvement with controlled substances, regardless of where such involvement takes place.
The regulation is applicable to DOD solicitations and contracts made on or after October 31, 1988, which meet the following
a. all contracts involving access to classified information, OR
b. any other contract when the contracting officer determines that inclusion of the clause is necessary for reasons of national security or for the purpose of protecting the health or safety of those using or affected by the product of or the performance of the contract (except for commercial or commercial-type products).
Contracts or parts of contracts that are performed outside of the US, its territories and possessions are excluded, except as otherwise determined by the contracting officer. There is no requirement to flow-down these provisions
Illegal drugs are those defined as controlled substances included in Schedule I and II as defined in Section 802(6), Chapter 13, Title 21 of the USC; valid prescription drugs are excluded.
The contractor agrees to institute and maintain a program for achieving the objective of a drug free work force. Contractor programs shall include the following or appropriate alternatives:
1. Employee assistance programs emphasizing high level direction, education, counseling, rehabilitation, and coordination with available community resources.
2. Supervisory training to assist in identifying and addressing legal drug use by contractor employees.
3. Provision for self-referrals as well as supervisory referrals to treatment with maximum respect for individual confidentiality consistent with safety and security issues.
4. Provision of identifying illegal drug users, including testing on a controlled and carefully monitored basis. Employee drug testing programs shall be established taking account of the following:
i. The contractor shall establish a program that provides for testing for the use of illegal drugs by employees in sensitive positions. The extent of and criteria for such testing be determined by the contractor based on considerations that include the nature of the work being performed under the contract, the employee's duties, the efficient use of contractor resources, and the risks to public health, safety and national security that could result from the failure of an employee to adequately discharge his or her position.
ii. In addition, contractor may establish a program for employee drug testing:
a. when there is reasonable suspicion that an employee uses illegal drugs,
b. when an employee has been involved in an accident or unsafe practice,
c. as a part of or as a follow-up to counseling or rehabilitation for illegal drug use,
d. as a part of a voluntary employee drug testing program.
iii. The contractor may establish a program to test applicants for employment for illegal drug use.
iv. For the purposes of administering this clause, testing for illegal drugs may be limited to those substances for which testing is prescribed by sections 2. 1. of Subpart B of the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" (53 FR 11980 [April 11, 1988]), issued by the Department of Health and Human Services.
5. Contractors shall adopt appropriate personnel procedures to deal with employees who are found to be using drugs illegally. Contractors shall not allow any employee to remain on duty or to perform in a sensitive position who is found to use illegal drugs until such time as the contractor, in accordance with procedures established by the contractor, determines that the employee may perform in such a position.
6. The provisions of the clause pertaining to drug testing programs shall not apply to the extent they are inconsistent with state or local law, or with an existing collective bargaining agreement; provided that with respect to the latter, the contractor agrees that those issues that are in conflict will be a subject of negotiation at the next collective bargaining session.
Sanctions for Non-Compliance
General sanctions for non-compliance with DOD contracting terms apply up to and including suspension,
Minimum Compliance Action
Because this clause is only applicable to contracts involving access to classified information or when the contracting officer decides inclusion is necessary for protecting the health and safety of those using or affected by the product of or the performance of the contract, colleges and universities are usually successful in negotiating out the regulation for basic research contracts.
If the contract is classified or if an attempt at deleting the clause is unsuccessful, compliance with the Drug-Free Workplace Act of 1988 will satisfy most of the Drug-Free Work Force requirements with the exception of mandatory supervisory training and the provision for employee drug testing.
Note that the drug testing requirements are only applicable to persons employed directly as a result of contract funds and that those employees must be in a "sensitive position" defined as "an employee whose duties could reasonable be expected to affect health, safety, or national security, including, but not limited to, duties involving: .
(i) access to classified information;
(ii) possession or use of firearms;
(iii) design, manufacture, test and evaluation, or maintenance of aircraft, vessels, vehicles, heavy equipment, munitions, toxic materials, weapons, weapons systems, potentially dangerous equipment/material/or applications (such as lasers, explosives, unstable chemicals or medical equipment with potentially life threatening consequences), or major components of the foregoing which are directed contracted for by the Department of Defense;
(iv) control, operation or use of aircraft, vessels, vehicles, heavy equipment, toxic or nuclear materials, munitions, weapons, weapon systems, or potentially dangerous equipment/materials/or applications (such as lasers, explosives, unstable chemicals, or medical equipment with potentially life threatening consequences);
(v) transportation, storage, or protection of toxic or nuclear materials, or munitions, or potentially dangerous materials (such as explosives or unstable chemicals);
(vi) direct treatment or rehabilitation of employees for unlawful use or abuse of controlled substances;
(vii) air traffic control.
Note also that the testing requirement take precedence over any State or local laws to the contrary; the clause is silent on collective bargaining agreements. (This is a change from the original requirements.)