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(B) has a positive drug test result ments additional to those of the base(consistent with $707.14).

line, including drug testing employees (5) Provision to employees of the op and applicants for employment in any portunity for rehabilitation, consistent position and testing for any illegal with the contractor's policies, under drugs. However, the contractor shall circumstances as provided in this part inform DOE of such additional require(see $707.14(b));

ments at least 30 days prior to imple(6) Immediate notification to DOE se- mentation. curity officials whenever the cir (f) DOE shall periodically review and cumstances in connection with proce evaluate each contractor's program, indures under this part raise a security cluding the contractor's oversight of concern as provided in DOE Orders, the covered subcontractors, to assure rules and regulations; such cir- effectiveness and compliance with this cumstances including, but are not nec part. essarily limited to, a determination (g) Contractors or proposers will subthat an individual holding a DOE ac- mit their program to DOE for review cess authorization has used an illegal within 30 days of notification by DOE

that the contract or proposed contract (c) Each contractor's written policy falls within the scope of this part. and procedures under this part shall Workplace substance abuse programs, comply with the requirements of 10 as provided in this part, shall be impleCFR part 710, “Criteria and Procedures mented within 30 days of approval by for Determining Eligibility for Access DOE. DOE may grant an extension to to Classified Matter or Significant the notification or implementation peQuantities of Special Nuclear Mate- riod, as warranted by local conditions. rial.

Implementation may require changes (d) Contractors are required to sub to collective bargaining agreements as mit all subcontracts they believe to be discussed in $707.15 of this part. within the scope of this part to DOE (h) To assure consistency of applicafor a determination as to whether the tion, DOE shall periodically review subcontract falls within the scope of designated contracts and testing desthis part. Subcontractors so deter- ignated positions included in the workmined to be within the scope of this place substance abuse plans approved part shall be required to agree to com- by DOE. DOE will also periodically reply with its requirements, as a condi- view implementation of programs contion of eligibility for performing the ducted by prime contractors, to assure subcontract work. Each subcontractor consistency of application among subject to this part shall submit its prime contracts (and subcontracts plan to the appropriate prime con- where appropriate) throughout DOE. tractor for approval; the contractor (i) This part preempts any State or shall be responsible for periodically local law, rule, regulation, order, or monitoring the implementation of the standard to the extent that: subcontractor's program for effective- (1) compliance with both the State or ness and compliance with this part. local requirement and any require

(e) In reviewing each proposed work-ments in this part is not possible; or place substance abuse plan, DOE shall (2) compliance with the State or decide whether the program meets the local requirement is an obstacle to the applicable baseline requirements estab- accomplishments and execution of any lished by this part. The responsible requirement in this part. DOE official will reject proposed workplace substance abuse plans that are $707.6 Employee assistance, edudeemed not to meet the baseline re

cation, and training. quirements. DOE shall provide the con Contractor programs shall include tractor with a written notification re- the following or appropriate altergarding the decision as to the accept- natives: ability of the plan. Nothing in this rule (a) Employee assistance programs is intended to prohibit any contractor emphasizing preventive services, edusubject to this part from implementing cation, short-term counseling, coordiworkplace substance abuse require nation and referral to outside agencies,

and follow-up. These services shall be available to all contractor on-site em ployees involved in the DOE contract. The contractor has no obligation to pay the costs of any individual's counseling, treatment, or rehabilitation beyond those services provided by the contractor's employee assistance program, except as provided for in the contractor's benefits programs. DOE undertakes no obligation to pay for any individual's counseling, rehabilitation, or treatment, unless specifically provided for by contract.

(b) Education and training programs for on-site employees on a periodic basis, which will include, at a minimum, the following subjects:

(1) For all on-site employees: Health aspects of substance abuse, especially illegal drug use; safety, security, and other workplace-related problems caused by substance abuse, especially illegal drug use; the provisions of this rule; the employer's policy; and available employee assistance services.

(2) For managers and supervisors:

(i) The subjects listed in paragraph (b)(1) of this section;

(ii) Recognition of deteriorating job performance or judgment, or observation of unusual conduct which may be the result of possible illegal drug use;

(iii) Responsibility to intervene when there is deterioration in performance, or observed unusual conduct, and to offer alternative courses of action that can assist the employee in returning to satisfactory performance, judgment, or conduct, including seeking help from the employee assistance program;

(iv) Appropriate handling and referral of employees with possible substance abuse problems, especially illegal drug use; and

(v) Employer policies and practices for giving maximum consideration to the privacy interests of employees and applicants.

(2) Programs developed under this part for positions identified in paragraph (b)(3) of this section shall provide for random tests at a rate equal to 50 percent of the total number of employees in testing designated positions for each 12 month period. Employees in the positions identified in paragraphs (b)(1), (b)(2), and (c) of this section will be subject to random testing at a rate equal to 100 percent of the total number of employees identified, and those identified in paragraphs (b)(1) and (b)(2) of this section may be subject to additional drug tests.

(b) The testing designated positions subject to random drug testing are:

(1) Positions determined to be covered by the Personnel Security Assurance Program (PSAP), codified at 10 CFR part 710. PSAP employees will be subject to the drug testing standards of this part and any additional requirements of the PSAP rule.

(2) Positions which entail critical duties that require an employee to perform work which affords both technical knowledge of and access to nuclear explosives sufficient to enable the individual to cause a detonation (high explosive or nuclear), in what is commonly known as the Personnel Assurance Program (PAP). PAP employees will be subject to the drug testing standards of this part and any additional requirements of the PAP program.

(3) Positions identified by the contractor which entail duties where failure of an employee adequately to discharge his or her position could significantly harm the environment, public health or safety, or national security, such as:

(i) Pilots;
(ii) Firefighters;

(iii) Protective force personnel, exclusive of those covered in paragraphs (b)(1) or (b)(2) of this section, in positions involving use of firearms where the duties also require potential contact with, or proximity to, the public at large;

(iv) Personnel directly engaged in construction, maintenance, or operation of nuclear reactors; or

(v) Personnel directly engaged in production, use, storage, transportation,

8707.7 Random drug testing require

ments and identification of testing

designated positions. (a)(1) Each workplace substance abuse program will provide for random testing for evidence of the use of illegal drugs of employees in testing designated positions identified in this section.

or disposal of hazardous materials suf- legal drugs before final selection for ficient to cause significant harm to the employment or assignment to such a environment or public health and safe position. Provisions of this part do not ty.

prohibit contractors from conducting (4) Other positions determined by the drug testing on applicants for employDOE, after consultation with the con ment in any position. tractor, to have the potential to significantly affect the environment, pub- $707.9 Drug testing as a result of an lic health and safety, or national secu

occurrence. rity.

When there is an occurrence which is (c) Each contractor shall require ran- required to be reported to DOE by the dom testing of any individual, whether contractor, under contract provisions or not an employee, who is allowed incorporating applicable DOE Orders, unescorted access to the control areas rules, and regulations, it may be necof the following DOE reactors: Ad essary to test individuals in testing vanced Test Reactor (ATR); C Produc- designated positions, or individuals tion Reactor (C); Experimental Breeder with unescorted access to the control Reactor II (EBR-II); Fast Flux Test Fa- areas of the DOE reactors listed in cility (FFTF); High Flux Beam Reactor $707.7(c), for the use of illegal drugs, if (HFBR); High Flux Isotope Reactor such individuals could have caused or (HFIR); K Production Reactor (K); L contributed to the conditions which Production Reactor (L); N Production caused the occurrence. For an occurReactor (N); Oak Ridge Research Reac- rence requiring immediate notification tor (ORR); and P Production Reactor or reporting as required by applicable (P). A confirmed positive test shall re- DOE Orders, rules, and regulations, the sult in such an individual being denied contractor will require testing as soon unescorted access. If such an individual as possible after the occurrence but is not an employee of the contractor, within 24 hours of the occurrence, unthat individual may be granted less DOE determines that it is not feaunescorted access only after the indi- sible to do so. For other occurrences vidual meets the conditions established requiring notifications to DOE as rein $707.14(d) of this part. If, after res quired by applicable DOE Orders, rules, toration of unescorted access, such an and regulations, the contractor may individual is determined to have used require testing. illegal drugs for a second time, unescorted access shall be denied for a $707.10 Drug testing for reasonable period of not less than three (3) years. suspicion of illegal drug use. Such an individual thereafter shall be (a)(1) It may be necessary to test any granted unescorted access only upon a employee in a testing designated posidetermination by DOE that a grant of tion, or individuals with unescorted acunescorted access to the individual pre- cess to the control areas of the DOE resents no unacceptable safety or secu actors listed in $707.7(c), for the use of rity risk. If such an individual is an illegal drugs, if the behavior of such an employee, that individual is subject to individual creates the basis for reasonthe other requirements of this part, in able suspicion of the use of illegal cluding appropriate disciplinary meas- drugs. Two or more supervisory or ures.

management officials, at least one of (d) A position otherwise subject to whom is in the direct chain of supertesting under this part may be exempt. vision of the employee, or is a physied from such testing if it is within the cian from the site occupational medscope of another comparable Federal ical department, must agree that such drug testing program, as determined by testing is appropriate. Reasonable susDOE, after consultation with the con- picion must be based on an articulable tractor, to avoid unnecessary multiple belief that an employee uses illegal tests.

drugs, drawn from particularized facts

and reasonable inferences from those $707.8 Applicant drug testing.

facts. An applicant for a testing designated (2) Such a belief may be based upon, position will be tested for the use of il- among other things:

(i) Observable phenomena, such as direct observation of:

(A) The use or possession of illegal drugs; or

(B) The physical symptoms of being under the influence of drugs;

(ii) A pattern of abnormal conduct or erratic behavior;

(iii) Arrest for a conviction of a drug related offense, or the identification of the individual as the focus of a criminal investigation into illegal drug possession use, or trafficking:

(iv) Information that is either provided by a reliable and credible source or is independently corroborated;

(v) Evidence that an employee has tampered with a drug test; or

(vi) Temperature of the urine specimen is outside the range of 32.5-37.7 degrees centigrade or 90.5-99.8 degrees Fahrenheit.

(b) The fact that an employee had a confirmed positive test for the use for the use of illegal drugs at some prior time, or has undergone a period of rehabilitation or treatment, will not, in and of itself, be grounds for testing on the basis of reasonable suspicion.

(c) The requirements of this part relating to the testing for the use of illegal drugs are not intended to prohibit the contractor from pursuing other existing disciplinary procedures or from requiring medical evaluation of any employee exhibiting aberrant or unusual behavior. $707.11 Drugs for which testing is per

formed. Where testing is performed under this part, at a minimum, contractors will be required to test for the use of the following drugs or classes of drugs: marijuana; cocaine; opiates; phencyclidine; and amphetamines. However, when conducting reasonable suspicion or occurrence testing, the contractor may test for any drug listed in Schedules I or II of the Controlled Substances Act.

or substitute the specimen to be provided. Contractors shall utilize a chain of custody procedure for maintaining control and accountability from point of collection to final disposition of specimens, and testing laboratories shall use appropriate cutoff levels in screening specimens to determine whether they are negative or positive for a specific drug, consistent with the HHS Mandatory Guidelines (see $707.5(a)). The contractor shall ensure that only testing laboratories certified by the Department of Health and Human Services, under subpart Cof the HHS Mandatory Guidelines are utilized.

(b)(1) If the individual refuses to cooperate with the urine collection (e.g., refusal to provide a specimen, or to complete paperwork), then the collection site person shall inform the MRO and shall document the non-cooperation on the specimen chain of custody form. The MRO shall report the failure to cooperate to the appropriate management authority, who shall report to DOE if the individual holds an access authorization. Individuals so failing to cooperate shall be treated in all respects as if they had been tested and had been determined to have used an illegal drug. The contractor may apply additional sanctions consistent with its disciplinary policy.

(2) The collection site person shall ascertain that there is a sufficient amount of urine to conduct an initial test, a confirmatory test, and a retest, in accordance with the HHS Mandatory Guidelines. If there is not a sufficient amount of urine, additional urine will be collected in a separate container. The individual may be given reasonable amounts of liquid and a reasonable amount of time in which to provide the specimen required. The individual and the collection site person must keep the specimen in view at all times. When collection is complete, the partial specimens will be combined in a single container. In the event that the individual fails to provide a sufficient amount of urine, the amount collected will be noted on the “Urine Sample Custody Document.” In this case, the collection site person will telephone the individual's supervisor who will determine the next appropriate action.

8707.12 Specimen collection, handling

and laboratory analysis for drug

testing. (a) Procedures for providing urine specimens must allow individual privacy, unless there is reason to believe that a particular individual may alter

This may include deciding to reschedule the individual for testing, to return the individual to his or her work site and initiate disciplinary action, or both. $707.13 Medical review of results of

tests for illegal drug use. (a) All test results shall be submitted for medical review by the MRO. A confirmed positive test for drugs shall consist of an initial test performed by the immunoassay method, with positive results on that initial test confirmed by another test, performed by the gas chromatography/mass spectrometry method (GC/MS). This procedure is described in paragraphs 2.4 (e) and (f) of the HHS Mandatory Guidelines.

(6) The Medical Review Officer will consider the medical history of the employee or applicant, as well as any other relevant biomedical information. When there is a confirmed positive test result, the employee or applicant will be given an opportunity to report to the MRO the use of any prescription or over-the-counter medication. If the MRO determines that there is a legitimate medical explanation for a confirmed positive test result, consistent with legal and non-abusive drug use, the MRO will certify that the test results do not meet the conditions for a determination of use of illegal drugs. If no such certification can be made, the MRO will make a determination of use of illegal drugs. Determinations of use of illegal drugs will be made in accordance with the criteria provided in the Medical Review Officer Manual issued by the Department of Health and Human Services (DHHS Publication No. (ADM) 88–1526).

for, an access authorization, then the contractor shall immediately notify DOE security officials for appropriate adjudication. If this is the first determination of use of illegal drugs by that employee (for example, the employee has not previously signed a DOE drug certification, and has not previously tested positive for use of illegal drugs), the employee may be offered a reasonable opportunity for rehabilitation, consistent with the contractor's policies. If rehabilitation is offered, the employee will be placed in a non-testing designated position, which does not require a security clearance, provided there is such an acceptable position in which the individual can be placed during rehabilitation; if there is no acceptable non-testing designated position, the employee will be placed on sick, annual, or other leave status, for a reasonable period sufficient to permit rehabilitation. However, the employee will not be protected from disciplinary action which may result from violations of work rules other than a positive test result for illegal drugs.

(2) Following a determination by the site occupational medical department, after counseling or rehabilitation, that the employee can safely return to duty, the contractor may offer the employee reinstatement, in the same or a comparable position to the one held prior to the removal, consistent with the contractor's policies and the requirements of 10 CFR part 710. Failure to take the opportunity for rehabilitation, if it has been made available, for the use of illegal drugs, will require significant disciplinary action up to and including removal from employment under the DOE contract, in accordance with the contractor's policies. Any employee who is twice determined to have used illegal drugs shall in all cases be removed from employment under the DOE contract. Also, if an employee who has signed a DOE drug certification violates the terms of the certification, DOE shall conduct a timely review of the circumstances of such violation, and the individual's continued eligibility for a DOE access authorization shall be determined under the provisions of 10 CFR part 710,

$707.14 Action pursuant to a deter

mination of illegal drug use. (a) When an applicant for employment has been tested and determined to have used an illegal drug, processing for employment will be terminated and the applicant will be so notified.

(b)(1) When an employee who is in a testing designated position has been tested and determined to have used an illegal drug, the contractor shall immediately remove that employee from the testing designated position; if such employee also holds, or is an applicant

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