Applicability of Drug-Free Workplace Regulations

The regulations apply to grants approved or awarded on or after March 18, 1989. Grantees are not required to provide certifications to federal agencies to continue grants existing at that time, nor are they required to do so to receive a no-cost time extension of a grant awarded prior to that date. The regulations define a grant as any assistance provided to an organization in the form of money or property in lieu of money. Technical assistance. Ioans, loan guarantees, direct appropriations or veterans' benefits to individuals are not considered grants. The drug-free workplace regulations cover the block grant programs created under the Omnibus Budget Reconciliation Act of 1981, as well as entitlement programs. The regulations apply only to primary grantees. For example, if a state agency receives a federal grant and passes through the funds to several local agencies, only the state agency is required to make a drug-free workplace certification. The recipients of the pass-through funds are not required to make dug-free Workplace certifications.

Certifying A Drug-Free Workplace

The drug-free workplace certification is a precondition of receiving a federal grant. Grantees must provide the certification to the federal granting agency as part of the application process. For grant programs that do not have formal application or proposal procedures (such as formula grant programs in which grantees are entitled to receive federal funds), the drug-free workplace certification must be made prior to the actual award of the grant.

The drug-free workplace certification is required for each grant awarded to a recipient organization, except for states. A state can elect to make a single annual certification to each federal granting agency rather than a separate certification for each grant or workplace. One annual certification must be made to each federal granting agency, which would cover all of the state agency's workplaces. Therefore, if a state agency receives grants under several programs from the same federal agency, only one certification must be made to that federal agency.

The Grantee's Drug-Free Workplace Policy

Grantees must publish a statement (e.g., as part of a personnel policy or manual) that informs employees that the manufacture, distribution, possession or use of a controlled substance in the grantee's workplace is prohibited. The statement must identify the site(s) of the performance of the grant and the penalties to be imposed on employees who violate the grantee's drug-free workplace policy.

Grantees must establish a drug-free awareness program to inform employees of the dangers of drug abuse in the workplace, the grantee's policy of maintaining a drug-free workplace, and any available drug rehabilitation and employee assistance programs. Grantees are not required to Provide or pay for drug rehabilitation programs. Costs incurred by grantees to comply with the regulations are allowable.

All employees "engaged in the performance of the grant" must be given the drug-free workplace policy and informed that they must comply with the policy as a condition of employment under the grant. All direct and indirect charge employees of the grantee are covered by the regulations. Temporary personnel and consultants who are on the grantee's payroll are also covered. Grantees must include in their drug-free workplace policy a requirement that employees notify the grantee of any "criminal drug statute conviction for a violation occurring in the workplace" within five days of the conviction. The federal granting agency must be notified within 10 days after the grantee receives notice of such a conviction. Within 30 days of notice of an employee's conviction for a drug violation in the workplace, a grantee must either take appropriate personnel action against the employee, which can include termination, or require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program that is approved by a federal, state or local health, or law enforcement.

Grants to Individuals

An individual who receives a grant directly from a federal agency must also certify a drug-free workplace, even if another party has an administrative role in distributing the funds. Principal investigators in a research or similar grant are considered 'individual" grantees only if the grant is awarded directly to the investigator and not to a university or other organization. Individual grantees must sign a certification that states: "as a condition of the grant, I will not engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity associated with the grant.''

Sanctions for Non-Compliance

One or more sanctions apply to a grantee that makes a false statement in the certification or fails to make a good faith effort to comply with the drug-free workplace regulations (e.g., several employees of the grantee are convicted of criminal drug statute violations that occurred in the workplace). These sanctions include: suspension of payments under a grant; suspension or termination of a grant; and suspension or debarment from federally assisted activities.

A debarment for non-compliance with the drug-free workplace regulations cannot exceed five years. The law authorizes a longer debarment period for drug-free workplace violations than for other grantee violations (three years), which are listed in each agency's suspension and debarment regulations. The head of the granting agency can waive, in writing, a suspension of payments, suspension or termination of a grant, or suspension or debarment of a grantee if he or she determines that such a waiver would be in the public interest.

The regulations state that in determining the level at which a sanction should be imposed for a violation of the regulations, the federal agencies will determine the "department, division or other unit" of the grantee responsible for performing the grant. Therefore, if several units of a state agency receive federal grants and one unit is not in compliance with the regulations, sanctions can only be imposed on that unit and not the entire state agency.

The text of the drug-free workplace common rule, which amends federal agencies' non- procurement debarment and suspension procedures, is provided below.