4 things for federal contractors to remember about the Drug Free Workplace Act

As 20 states and the District of Columbia have legalized marijuana for medical or recreational use, details on federal drug policy for employees and contractors are becoming hazier.

Both federal employees and contractors are still subject to the Drug Free Workplace Act, which says that companies that receive a federal contract of $100,000 or more and organizations that receive a federal grant of any size must maintain a drug-free policy.

The Federal Acquisition Regulation (FAR), along with a specific contract clause, defines the terms and conditions of companies’ drug policies. The terms themselves haven’t been updated in years, but the application of these regulations are slowly evolving, said Alan Chvotkin, executive vice president and counsel for the Professional Services Council.

Still, that evolution brings up some serious questions for the federal contracting community. Here are four things to remember about the Drug Free Workplace Act.

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Who it applies to

The short answer: everyone. But there are some exceptions. For example, individuals who enter into personal contracts with an agency may be exempt from developing and maintaining a specific drug-free policy.

Contractors who do business outside of the U.S. are also typically exempt.

But federal contractors who work with the government must maintain drug-free policies, and they apply to contract employees who are directly engaged in the performance of contract work.

In theory, companies would determine what relationship their employees have to the performance of the contract.

Chvotkin said in many cases, companies may decide to apply these provisions broadly to their workforce, rather than specifying exactly which employees are performing direct federal contract work.

In addition, contract employees usually have five days to tell their employer if he or she has been convicted of a criminal drug violation. Companies subsequently have 10 days to notify their contracting agency that a covered employee has received a criminal conviction.

“This applies outside the workplace,” Chvotkin said Tuesday, during a PSC event on marijuana use and federal contractors. “It is one of the very few government contract clauses that has application outside of the specific workplace, so an employee who is impaired for use even outside the workplace might violate the clause.”

What contractors have to do

Companies typically must issue a statement that specifies that the “unlawful use or possession of controlled substances is prohibited in the workplace.”

In addition, contractor statements must demonstrate that employee compliance is a condition of continued employment.

“[It’s] one of the few times I’ve seen government contract clauses impose that and say your failure to comply is a condition of continued employment and therefore may trigger other remedies for the contractor if the employee were to violate that policy,” Chvotkin said.

If a contractor does violate this policy, agency contracting officers may decide to suspend payments or terminate the contract for default. Contracting officers could also defer the situation to agency suspension and debarment officials.

Communication

Federal employees or contractors with medical marijuana prescriptions may do best to communicate their situations with their agencies or employers.

“Accommodation starts with communication with the employer and the employee,” said Alan Symonette, a labor arbitrator and president and owner of Symonette ADR Services. “If the employee is diagnosed with Crohn’s disease, for example, I think there becomes a responsibility for the employee to have a conversation with their employer to say look, ‘I have this diagnosis.’ This is important. There has to be a prescription for the use of medical marijuana. It’s not sufficient for the doctor to say, oh, you should try this. … Then the conversation can begin to try to find a way for the accommodation.”

Typically, employers have a tougher burden to show that they can’t accommodate an employee, Symonette said.

Be truthful on security clearance forms

Security clearance applicants must report drug use on their SF-86 forms, even if it’s not illegal in all states. Security executive agents added this distinction to the SF-86 form in July.

Federal suitability guidelines are more concerned about an employee or contractor’s frequent or recent use of marijuana. Drug use on its own isn’t a complete disqualification, Chvotkin said.

“Don’t withhold information, because more clearances are denied based on the falsification on the application or information that surfaces during the background investigation than ever for the full disclosure on the application,” he said. “You may have an opportunity to explain.”