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Federal Employment Law

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.

Author Photo

Aaron Wersing, Attorney at Law

Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a free consultation, please call him at (833) 833-3529.

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