Supplement No. 3
June 29, 1990
Subject: Certification Regarding Drug-Free Workplace, Final Regulations
Enclosure 1 is a copy of the final regulation for grants and the final Federal Acquisition Regulation for contracts implementing the Drug-Free Workplace Act of 1988. The final grant regulations for the Drug-Free Workplace published May 25, 1990 in the Federal Register make some changes from the interim rule published January 31, 1990, as summarized below.
The definition of employee of a grantee directly engaged in the performance of work under the grant has been expanded to include "indirect charge" employees, unless their impact or involvement is insignificant to the performance of the grant, and temporary personnel and consultants who are on the grantee's payroll. The issue of how to identify employees whose salaries are included in indirect costs will be discussed by the Office of the President task force on implementation of the Drug Free Workplace regulations. It is likely that implementation of both this regulation and the new regulation regarding Drug-Free Schools and Campuses will require notification to all employees of the University policy, thereby insuring that both direct and indirect charge employees are covered. As such, it would only be at the time of conviction for a violation occurring in the workplace that the University would have to determine the source of funds supporting the employee in order to comply with the federal reporting requirements.
A new part (e) has been added to section 630 specifying that grantees shall have their drug-free policy statement and program in place within 30 days after the award.
A new section 635 on Reporting of the Employee Sanctions for Convictions of Criminal Drug Offenses has been added. It specifies that the grantee shall provide written notice to every federal grant officer on whose grant activity the convicted employee was working, including the identification number of each grant and the position title of the convicted employee, within 10 calendar days of receiving notice of the conviction. It also specifies that the appropriate personnel action must be taken within 30 calendar days, and the personnel action taken must be consistent with the requirements of the Rehabilitation Act of 1973. Finally, the new section 635 also requires individuals who receive grants, such as National Research Service Awards, to report in writing to the grant officer within 10 calendar days a conviction for a violation of a criminal drug statute occurring during the conduct of any grant activity.
The above summarized changes from the interim rule are incorporated into Appendix C, Certification Regarding Drug-Free Workplace Requirements. Also incorporated into the Certification are new sections 5., 6., and, 7., regarding identification of the workplaces under grants in the instructions for completing the certification. It specifies that workplace identification must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. The grantee must so specify the workplaces in the certification, or in the grant application, or in the grant award, or must keep the identity of the workplaces on file in its office and make the information available for Federal inspection. If the grantee has specified the workplaces in the certification, grant application or award, and if the workplace identified changes during the performance of the grant, the grantee shall inform the agency of the changes. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements. Finally, the Certification now requires the drug-awareness program of the grantee be "ongoing."
In the May 25, 1990 Federal Register, the Office of Management and Budget has also published a Notice providing information, in the form of nonbinding questions and answers, to assist grantees in meeting the requirements of the Drug-Free Workplace. This government-wide non- regulatory guidance, in response to the question about how the Drug-Free Workplace Act will be enforced, states, in part: "As part of normal Federal auditing, compliance will be checked. And, lastly, as part of grantees' Single Audits, compliance checking will be required. OMB's compliance supplements for State and local governments and for other entities will include a requirement for such compliance checking."
The task force previously convened in the Office of the President to develop the University Policy on Substance Abuse and the Implementing Guidelines will be reconvened to determine what additional guidance, if any, is required to insure University compliance with these final regulations.
Subject Index: 02, 12
Organization Index: U-115, F-622, F-020
David F. Mears
Research Administration Office
Associate Vice President Moore
Assistant Vice President Levin
University Counsel Canning
Personnel Analyst McConnell