| Read Time: 3 minutes | Federal Employment Law

Guidelines for Federal Workplace Drug Testing

Although being a federal employee has many benefits, it carries certain responsibilities as well. One of these obligations is to not use illegal drugs. To ensure that federal employees comply with this restriction, the government sometimes requires them to receive regular drug testing. In other situations, the government requires employees to be drug tested before starting a position.  However, there isn’t one clear-cut approach to drug testing. The exact federal employee drug testing policy varies from one position to the next. Because the rules around federal employee drug testing are far from straightforward, it’s critical to learn about drug testing laws to protect your rights.  A Brief Background of Federal Drug Testing Laws Prior to the 1970s, drug testing was unheard of in the United States. However, this changed during the Vietnam War. High levels of drug usage amongst American soldiers abroad and throughout the growing counterculture prompted the government to launch a “war on drugs.”   In 1986, President Ronald Reagan signed Executive Order (EO) 12564, which mandated that all government employees refrain from using illegal drugs at all times. It also stated that anyone who uses illegal drugs is unsuitable for federal employment.  Common Federal Employee Drug Testing Situations Executive order 12564 defined various circumstances where federal employees could receive drug testing.  Testing Designated Positions (TDPs) Under executive order 12564, each federal agency had to develop its own federal employee drug testing policy. One part of making an agency-wide drug testing policy is designating certain jobs as “testing designated positions” (TDPs). Any employee occupying a TDP can receive a drug test at any time. Agencies typically test a certain percentage of employees occupying TDPs each month. While the exact policy varies somewhat, federal law requires agencies to test at least 30% of all employees in TDPs every 12 months.  Each federal agency is free to designate any position as a TDP. However, the Department of Health & Human Services released guidance in 2010 to help agencies determine which positions should be TDPs. According to the DHHS guidance, some positions are “presumptive” testing designated positions. “Presumptive” TDPs are those that the agency must designate as TDPs unless there is a compelling reason to not do so. Examples of “presumptive” TDPs include: Positions requiring the use, possession, or maintenance of firearms; and Positions involving the use of a motor vehicle, aircraft, or train. The DHHS’s guidance also identified “preferred” TDPs which include: Presidential appointments; Frontline law enforcement positions; Drug rehabilitation positions; and Positions requiring security clearances.  If you are in a TDP, know that you may be subjected to a drug test at any time with little or no advance notice.  Federal Government Pre-Employment Drug Tests Whether a position is considered a TDP or not, agencies can make passing a drug test a condition of employment. When that happens, agencies can mandate that job candidates receive drug tests prior to beginning employment with the agency.  When Can Federal Employees Who Aren’t in a TDP Be Drug Tested? Every federal employee, regardless of whether they’re in a testing designated position, can receive a drug test in two situations after they have begun employment.  The first situation is if there is a “reasonable suspicion” that the employee is under the influence of illegal drugs. The agency can base its reasonable suspicion on various signs, including physical symptoms of being under the influence of drugs, abnormal behavior, and an arrest for drug possession or drug trafficking offense. The second situation is if the employee is involved in a work-related or vehicular accident.  Can I Get in Trouble for Using a Drug That Is Legal in My State? Yes. This is a common issue with marijuana now that it is legal for recreational or medical use in 36 states and Washington D.C. Even if a drug is legal under your state’s laws, it can still be illegal under federal law. And because federal laws control every federal workplace, you can be disciplined for using any drug that the federal government says is illegal. What Drugs Do Agencies Test for? The most common drug classes that agencies test for are: Marijuana, Cocaine, Opiates (heroin, opium, etc.),  Amphetamines Methamphetamines, and PCP. However, agencies can test for any illegal drug.  Want to Learn More About How Federal Drug Testing Laws Affect You? Federal drug testing laws and policies aren’t really straightforward. On top of that, federal agencies are far from perfect. If your employer is forcing you to get a drug test without reason, they may be infringing on your rights. At the Law Office of Aaron D. Wesing, PPLC., we work to guarantee that federal employees get the treatment they deserve from their employers. We’ve helped hundreds of current and former federal employees over the years stand up for their rights. So if you think that your federal employer is violating your rights, contact us or call (833) 833-3529 for a free initial consultation today.

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| Read Time: 3 minutes | Federal Employment Law

What You Need to Know About Paid Parental Leave As a Federal Employee

Last year, the federal government created a new paid leave category for federal workers—paid parental leave (PPL). As part of the Federal Employees Paid Parental Leave Act of 2019 (FEPLA), most federal workers can take up to 12 weeks of PPL in connection with the birth of a child. Employees can also use federal paid parental leave for the placement of a child under their care. This includes situations like adoption and foster care.  Paid parental leave is just the latest addition to the many benefits of federal employment, including generous retirement benefits, regular working hours, and ample health benefits. Learn more about the government’s new federal paid parental leave below. Which Federal Employees Qualify for Paid Parental Leave? To use paid parental leave, you must complete at least 12 months of federal service as stated in 5 CFR 630.1201(b)(1). Furthermore, you must not be under a temporary appointment (less than one year). You also cannot be an intermittent employee.  Provided you meet these basic requirements, you are eligible to take paid parental leave under FEPLA.   When Did Paid Parental Leave for Federal Employees Come Into Effect? As the name of the bill suggests, Congress passed the Federal Employee Paid Parental Leave Act of 2019 in December of that year.  However, the rule implementing the bill’s provisions did not come into effect until October 1, 2020. This means that federal employees cannot take any PPL for any births or placements of children that took place before that date. Additionally: You may only use PPL during the 12-month period immediately following the birth or placement of your child.  If multiple children were born or came under your care at the same time, you can only use one 12-week period of PPL.  However, if you have multiple children at different times during one year, each child qualifies you for a new PPL period.  What Are My Options If I Had a Child Before the Paid Parental Leave Law Came Into Effect? If your child was born or came into your care before October 1, 2020, you can still take leave to care for them. However, you won’t receive any pay during that time.  Before FEPLA, the closest thing to a Federal employee maternity leave law or a Federal paternity leave law was the Federal and Medical Leave Act of 1993 (FMLA).  FMLA allows eligible federal employees to take leave for up to 12 weeks for a variety of medical reasons, including the birth of a child. However, unlike FEPLA, FMLA provides employees only unpaid leave. Furthermore, you have to meet the same standards for FMLA as you would for FEPLA.  Can I Use Leave Under Both FMLA and FEPLA? No. PPL is provided as a replacement for the unpaid leave provided under FMLA. However, you can use sick leave and annual leave in coordination with PPL. Do I Have to Use My Sick or Annual Leave Before Using Paid Parental Leave? No. In fact, the Office of Personnel Management (OPM)—the agency responsible for determining the personnel practices of all federal agencies—explicitly states that federal agencies cannot force their employees to take other forms of leave before using PPL.  How Do I Request Paid Parental Leave? Most federal agencies have their own paid parental leave request forms. If you intend to request PPL, contact your local human resources office to learn about the forms that your agency uses.  Please note that you must provide supporting medical documentation if your employer requests it. The types of supporting documentation you have to submit will vary from agency to agency.  That said, OPM released guidance for the kinds of documents agencies may accept. Commonly accepted medical documents include birth certificates, hospital records, and any documents that name you as a parent.  Finally, FEPLA requires that you sign an agreement promising to work at least twelve weeks of work after using PPL.  Is Your Federal Employer Giving You the Paid Parental Leave You Are Entitled To? The new federal paid parental leave law recognizes that the birth or placement of a child is a life-changing event. It’s also a stressful period that requires your full attention without the interference of work. If your employer is denying you paid parental leave or retaliating against you because you took PPL, they are infringing on your rights.  That’s why we are here. At the Law Office of Aaron D. Wesing, PPLC., we fight to protect our clients’ rights. We also work to ensure that they get fair treatment from their employers.  Over the years, we’ve helped hundreds of federal employees deal with a huge range of federal employment problems. So let us help you stand up to your employer. If you think that your federal employer is violating your rights, contact us online or call (833) 833-3529 for a free initial consultation today. 

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| Read Time: 4 minutes | Federal Employment Law

Using Marijuana as a Federal Employee Still Has Consequences (Even if It’s Legal in Your State)

Country-wide adoption of recreational marijuana laws has some people wondering if the mandatory drug test prior to employment is a thing of the past. Unfortunately, without federal legislation on the issue, the answer is likely yes for anyone seeking employment in the federal government sector. Federal laws continue to classify marijuana as an illegal Schedule 1 drug, putting it in the same category as heroin, ecstasy, and LSD.  Despite widespread approval for the plant and state regulations allowing its recreational use, those subject to federal regulations must refrain from using the substance or face consequences. Recent Federal Cannabis News In 2015, the Office of Personnel Management (OPM) advised federal agencies that under federal laws on marijuana, it is considered a Schedule 1 controlled substance. The OPM also reminded federal agencies of the rules established in 1986 by President Ronald Reagan in Executive Order 12564, Drug-Free Federal Workplace. This order stated that: Federal employees must refrain from the use of marijuana; The use of marijuana, whether on or off duty, is contrary to the efficiency of federal services; and People who use marijuana (or any drugs currently illegal under federal law) are unsuitable for federal employment.  Since 2015, public acceptance of marijuana use has continued to increase. In February 2021, the OPM issued new guidance for federal agencies designed to relax the hiring practices related to past marijuana use. Acknowledging that marijuana remains categorized as a Schedule I controlled substance under federal law, the OPM told agencies that use or possession of marijuana should not automatically disqualify the person from applying for federal employment. Instead, the federal agencies must find a nexus between the employee’s possession or use of marijuana and its impact on the integrity or efficiency of the government. What Does This Mean for Federal Employees? The OPM’s new guidance outlines the process for determining whether federal applicants using or in possession of marijuana are suitable for federal positions. Factors that agencies should look at include: Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and Criminal or dishonest conduct.  As stated above, the OPM advised federal agencies that the existence of either of these factors should not automatically disqualify an applicant from consideration. Instead, agencies evaluate each individual applicant’s conduct on a case-by-case basis to determine whether their behavior will impact the integrity and efficiency of the federal government. The factors agencies must consider include: The nature of the position the applicant is seeking; The nature and seriousness of the applicant’s conduct; Relevant circumstances surrounding the applicant’s conduct; Contributing societal conditions; Absence or presence of rehabilitation; The recency of the conduct; and The applicant’s age at the time of the conduct. Additionally, the Federal OPM specifically noted that past marijuana use, including recently discontinued marijuana use, should be viewed differently than current or ongoing marijuana use. This case-by-case analysis applies not only to new applicants but also to incumbent federal government employees. Can I Use Marijuana If I Already Work for the Federal Government? You have completed the hiring process and been working for the federal government for several years. Now, are you allowed to use marijuana? Unfortunately, that answer is still no. The OPM reiterated that the mandates of Executive Order 12564, Drug-Free Federal Workplace, prohibiting the use of illegal drugs on or off duty remain in effect for all federal employees. Employees struggling with substance abuse issues should seek counseling and rehabilitation. Who is Considered a Federal Employee? Any job within the three branches of the United States Government—the judicial branch, the legislative branch, and the executive branch—is considered federal employment. The OPM reported in 2017 that the federal government employs at least 4.4 million workers. Areas of federal employment include: All military service members; Postal service workers; Department of Transportation; Department of Labor; Politicians and legislative staff; and The FBI. A common misconception about federal employment is that all federal employees work in Washington, D.C. However, this is not the case. In fact, the majority of federal government employees do not work in the D.C. area. Are There Other Limits on Marijuana Use in Legalized States? Marijuana use creates barriers for the federal employment sector, but that is not the only barrier. Student Loans Section 484(R) of the Higher Education Act of 1998 states that a student with a past conviction for possession of a controlled substance is not eligible for financial aid. Federal law still defines marijuana as a controlled substance. Therefore, a conviction for possession of marijuana can disqualify you from receiving any student financial aid. Purchasing a Firearm Federal law requires gun purchasers to fill out a federal Form 4473, which inquires about the unlawful marijuana use of the applicant. Because marijuana is still criminalized under federal law, any use of marijuana is considered unlawful. Thus, a marijuana user attempting to purchase a firearm may have his or her application denied. Furthermore, it should be noted that individuals who lie on Form 4473 can be charged with a felony. Such a charge carries a maximum penalty of five years in prison. Contact a Federal Employment Lawyer for Additional Details Navigating federal workplace requirements can be confusing and tricky, especially when federal law starkly differs from state law. Federal cannabis news may change at any time, but for right now, cannabis use still greatly impacts federal employment. Attorney Aaron Wersing has extensive experience in all aspects of federal government employment law. His familiarity with the intricacies of federal employment law can save you pain and frustration if you work in, or are applying for federal work. If you have questions, he can provide detailed explanations to address your concerns. Mr. Wersing knows that the process for protecting the rights of federal employees differs significantly from the private sector and he stands ready to fight for you. At the Law Office of Aaron D. Wersing, we are committed to protecting federal employees from having their rights abused. So contact us today to set up your free initial consultation.

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