uipl_0591.pdf

ETA Advisory File Text

U.S. Department of Labor CLASSIFICATION Employment and Training Administration UI Drug-Free Workplace Washington D.C. 20210 CORRESPONDENCE SYMBOL TEUM DATE November 21 1990 DIRECTIVE UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 5-91 TO ALL STATE EMPLOYMENT SECURITY AGENCIES FROM DONALD J. KULICK Administrator for Regional Management SUBJECT Drug-Free Workplace Regulatory Requirements 1. Purpose . To inform the State Employment Security Agencies SESAs of the changes to the Drug-Free Workplace regulatory requirements resulting from the Drug-Free Workplace Requirements Notice and Final Rule published May 25 1990 in the Federal Register. 2. Reference . Training and Employment Information Notice TEIN No. 15-90. 3. Background . The U.S. Department of Labor Employment and Training Administration ETA issued TEIN No. 1-89 dated July 3 1989 which set forth the requirements of the Drug-Free Workplace Act. This Act requires Federal agency grantees and contrac tors to certify that they will provide a drug-free workplace as a pre-condition of receiving a contract or a grant from a Federal agency. Recently ETA issued TEIN No. 15-90 Drug-Free Workplace Regulatory Requirements which replaced TEIN No. 1-89. A copy of this revised TEIN is attached for your information. Following are brief descriptions of the important changes to the certification process contained in TEIN No. 15-90. a. A State may still certify once annually. However under the new procedure the State retains the original of the statewide certification in the Governor s office. b. The State must submit a copy of the statewide certification for each grant unless the Federal agency designates a central location for submission. The Department of Labor will not designate a central location. Therefore grantees are required to s ubmit a copy of the certification with each grant application. c. The Governor of a State may exclude certain State agencies from the statewide certification and authorize these agencies to submit their own certifications to Federal agencies. The statewide certification shall name any State agencies so excluded. d. A State agency may elect to make its own annual certification only if 1 the Governor excluded the agency from the statewide certification or 2 the State does not have a statewide certification. e. The annual certification is for the Federal fiscal year which starts on October 1 of each year. 4. Action Required . SESA Administrators are requested to a ensure that the necessary certification as published in Appendix C of the final rule attached to the TEIN is made for the FY 1991 UI grant a copy of the certification should be attached to the grant application for the Grant Officer and b recertify on the revised form and submit a copy of the revised certification to the Grant Officer by November 30 1990 if the fiscal year 1991 UI grant has already been approved using the old c ertification form. 6. Inquiries . Inquiries concerning this UIPL and attached TEIN should be directed to the appropriate ETA Regional Office. 7. Attachment . TEIN No. 15-90 RESCISSIONS EXPIRATION DATE None November 30 1991 CLASSIFICATION U.S. Department of Labor Drug-Free Workplace Act Employment and Training Administration Washington D.C. 20210 CORRESPONDENCE SYMBOL TM DATE October 16 1990 TRAINING AND EMPLOYMENT INFORMATION NOTICE NO. 15-90 TO STATE JTPA LIAISONS STATE EMPLOYMENT SECURITY AGENCIES FROM ROBERTS T. JONES Assistant Secretary of Labor SUBJECT Drug-Free Workplace Regulatory Requirements RESCISSIONS EXPIRATION DATE TEIN 1-89 Continuing 1. Purpose . To explain the responsibilities of the Employment and Training Administration ETA and its grantees under the Drug-Free Workplace Act regulatory requirements. This information notice updates and replaces Training and Employment Informat ion Notice TEIN No. 1-89 and transmits a sample certification and the Federal Register Notice Part II Drug-Free Workplace Requirements Notice and Final Rules dated May 25 1990. 2. References . Drug-Free Workplace Act of 1988 Pub. L. 100-690 Title V Subtitle D 41 U.S.C. 701 et seq. 29 CFR Part 98 Federal Register 54 FR 4946 and Federal Register 55 FR 21679 Training and Employment Information Notice TEIN No. 21- 88 and TEIN No. 1-89. 3. Background . On November 18 1988 Congress enacted the Drug-Free Workplace Act requiring Federal agency contractors and grantees to certify that they will provide a drug-free workplace as a pre-condition of receiving a contract or a grant from a Federal agency after March 18 1989. The Office of Management and Budget OMB coordinated the participation of over 30 Federal agencies including the Department of Labor in the development of regulatory requirements to ensure prompt compliance prompt issuance of final rules and un iform government-wide implementation of the Act. The government-wide rule was issued as an interim final rule published Tuesday January 31 1989 Vol. 54 No. 19 Federal Register and was added as a new Subpart F to the Department s nonprocurement debarment and suspension regulations at 29 CFR P art 98. As an interim final rule this regulation was fully in effect and binding after its effective date of March 18 1989. Comments were solicited. The government-wide rule was then issued as a final rule published in the Friday May 25 1990 Vol. 55 No. 102 Federal Register. This final rule amends the interim final rule in response to public comment. The final rule was effective July 24 19 90 with the exception of an effective date of June 25 1990 for certification by those States and State agencies that planned to certify under subsections 29 CFR 98.630 c and d . The Federal Acquisition Regulation FAR rules for contracts are contained in the same Federal Register notice but are not covered in this information notice which is addressed only to State grantee organizations. The requirements for individuals ar e not covered for the same reason. The Drug-Free Workplace common rule for grants amends the government-wide Nonprocurement debarment and suspension common rule at 29 CFR Part 98 to allow agencies to make use of existing debarment and suspension remedies as sanctions for non-complian ce with the requirements of the Drug-Free Workplace Act. It should be noted that in contrast to the debarment common rule the drug-free common rule applies only to prime grantees and does not extend to subgrantees. These requirements were effective for all grants awarded on or after March 18 1989 or for grants existing prior to March 18 1989 if modified in such a manner that it would be considered a new commitment. Grantees are not required to make a certi fication in order to continue receiving funds under a grant awarded before March 18 1989 or under a no cost time extension of such a grant. See also section No. 6 B 2 of this TEIN Frequency of Certification and section No. 11 Exemptions. 4. Definitions Controlled substance means a controlled substance as it is used in schedules I through V of sections 202 of the Controlled Substances Act 21 U.S.C. 812 . and as further defined by regulation at 21 CFR 1300.11 through 1300.15. Nei ther the regulations nor this TEIN expand upon the definition. Grant means an award of financial assistance including a cooperative agreement in the form of money or property in lieu of money by a Federal. agency directly to a grantee. The term grant includes block grant and -entitlement grant programs w hether or not exempted from coverage under the grants management government-wide common rule on uniform administrative requirements for grants and cooperative agreements. See also section No. 10 of this TEIN Coverage and 29 CFR 98.605 b 7 for the complete definition. Grantee means a person who applies for or receives a grant directly from a Federal agency. Person is defined in the debarment regulations at 29 CFR 98.105 n as any individual corporation partnership association unit of government or legal entity however organized.... In the final rule the definition of employee has been made more specific. The term employee includes persons hired by the grantee to manage the program and serve participants but does not include the program parti cipants. Whether or not the pers on is on the payroll of the grantee is key to this definition. It includes all direct charge employees and all indirect charge employees unless their impact or involvement is insignificant to the performance of the grant. It includes temporary pe rsonnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee s payroll even if not paid from grant funds. This definition does not include workers not on the payroll of the grantee such as employees of a subcontractor even if their physical place of employment is in the grantee s covered workplace. 5. Requirements . After March 18 1989 the ETA is not allowed to award a grant or to modify a grant that involves a new award unless it has received a certification or in the case of States a copy of the certification that the potential grantee will maintain a drug free workplace. The ETA Grant Officer must be satisfied that this certification requirement has been fulfilled by the potential grantee prior to making an award. As a pre-condition to receiving a grant a potential grantee shall certify to the ETA that it will maintain a drug-free workplace by see 29 CFR 98 Appendix C for the exact text a Publishing and distributing to each employee a statement notifying employees that the unlawful manufacture distribution dispensing possession or use of a controlled substance is prohibited in the grantee s workplace and specifying the actio n that will be taken against employees for violation of such prohibition. b Establishing an on-going drug-free awareness program to inform employees about 1 the dangers of drug abuse in the workplace 2 the grantee s drug-free workplace policy 3 any available drug counseling rehabilitation and employee assistan ce programs and 4 the penalties for drug-abuse violations occurring in the workplace. c Providing each employee with a statement including language required by a above and d notifying the employee that as a condition of employment the employee is to abide by the statement and is to notify the grantee within five calendar days if he or she is convicted for a violation of a criminal drug statute which occurred in the workplace. e Notifying the Grant Officer in writing within 10 calendar days of receiving notice of any drug violation conviction. Such notifications shall be sent to the appropriate ETA Grant Officer and shall include the identification number s of each aff ected grant and the employee s position title. If the ETA was notified at the time of the violation through the Incident Report system a supplemental report should be submitted at the time of notice of conviction. f Within 30 calendar days of receiving notice of a conviction taking one of the following actions with respect to the employee convicted 1 a personnel action against the employee up to and including termination consistent with the requiremen ts of the Rehabilitation Act of 1973 or 2 requiring such employee to participate satisfactorily in a drug-abuse assistance or rehabilitation program. See the attached regulations and certification for more specific language on all of the above r equirements. Neither the Act nor the rules authorizes drug testing of employees. On the other hand drug testing in response to other Federal or State legislation is not prohibited. 6. Frequency of Certification . Under the interim final rules published January 31 1989 the certification requirements especially for States and State agencies were not clear and were at times confusing. The final rule expands the options availab le to States and attempts to clarify the requirements. A All grantees other than States and State agencies are required to make the drug-free certification for each grant. The use of the word State in this section should be understood to include State agencies unless otherwise indicated. B A grantee which is a State has a number of different options to choose from in order to certify that it will maintain a drug-free workplace see 29 CFR 98-630 . 1 A State or State agency may always elect to make a drug-free certification for each grant or award. The certification should be submitted to the ETA Grant Officer responsible for making the awards under the grant prior to the award of the grant . 2 A State or State agency receiving a mandatory formula grant or entitlement that has no application process no formal application shall submit a one-time certification in order to continue receiving awards 29 CFR 98.630 b . This one-time ce rtification agrees to maintain an ongoing drug-free workplace program that continues throughout the life of the grant or as long as the grantee continues to receive the mandatory award. This one time certification will only satisfy the requirement for mandatory awards e.g. JTPA Title II A B and III Formula grants . A State or State agency receiving a mandatory formula grant s is required to make a one-time certification using the format published in Appendix C of the final rule attached . This certification using the new format is required even if the State or State agency has previously submitted an annual certification. This certification need not be repeated in subsequent fiscal years as long as the content of the certification to which the State has certified does not change. The certification should be submitted to the ETA Grant Officer responsible for making the mandatory award s under the grant. These one time certifications were due July 24 1990. A State or State agency which receives a mandatory formula grant and other non-mandatory awards from the DOL will be able to fulfill all its certification requirements with the one-time certification. 3 The requirements for States and State agencies under the following single annual-certification option are slightly different and so are presented separately. A STATEWIDE . A State may elect to make one statewide certification in each Federal fiscal year which would cover all State agencies. The regulations required States to make a certification for FY 1990 by June 30 1990 29 CFR 98-630 c . States wh ich have made a certification in FY 1990 under the Interim Final Rule are not required to re-certify for FY 1990. For FY 1991 and all subsequent fiscal years each State electing the single annual Federal fiscal year option shall sign a statewide certification prior to the beginning of the subject fiscal year in order to submit a copy of the certification with applications for grants that run concurrently with or during the fiscal year. Certifications are to be signed by the Governor or by a State official authorized to commit the State and its agencies to the requirements of the Drug-Free workplace regulations. The certification shall follow the format published in Appendix C of the final rule attached . The original of the certification itself is to be retained in the Governor s office. A copy of the certification must be submitted to the ETA Grant officer responsible for making the awards under each grant prior to the dis cretionary award. The interim final rule permitted grantees to submit one annual certi- fication to a central DOL location. The final rule however requires the submission of a copy of the annual certification be submitted individually with respect to each grant u n1gss the Federal agency designates a central location for submission. The DOL and the ETA have decided to designate a central location for submission. Therefore States are to submit copies of the certification to the appropriate ETA Grant Officer p rior to the award. The Governor of a State may exclude certain state agencies from the statewide certification and authorize those agencies to submit their own certifications to Federal agencies. The statewide certifications shall name any State agencies so excluded. B STATE-AGENCY WIDE. A State agency to which the statewide certification does not apply or a State agency in a State that does not have a statewide certification may elect to make one agency-wide certification in each Federal fiscal year. The regulations required State agencies to make a DrugFree Workplace certification for FY 1990 by June 30 1990. State agencies which have made a certification in FY 1990 under the Interim Final Rule are not required to re-certify for FY 1990. For FY 1991 and all subsequent fiscal years each State agency electing the single annual Federal fiscal year option shall sign the agency-wide certification prior to the beginning of the subject fiscal year in order to submit a copy of the certifi cation with applications for grants that run concurrently with or during the fiscal year. Certifications are to be signed by a State official authorized to commit the agency to the requirements of the Drug-Free Workplace regulations. Certifications shall follow the format published in Appendix C of the final rule attached . The certifi cation itself is to be retained in the central office of the State agency. A copy of the certification must be submitted to the Grant officer responsible for making the awards under each grant prior to the award. The DOL and the ETA have decided to designate a central location for submission. See 3 A above. 7. Listing of Worksites . Federal agencies in order to audit grantee compliance must have access to the addresses or locations of workplaces to which Drug-Free Workplace requirements apply - The final rule amended the listing of workplace requiremen ts so that grantees may elect one of three available options. Grantees shall 1 list the locations of workplaces on the certification document or 2 list the locations of workplaces on the grant application or submit a separate list of workplaces prior to the award if there is no application or 3 maintai n a list of workplaces on file and available for inspection by Federal agencies in the office of the Governor or State agency. The list of worksites is to be updated annually at the time of certification or on the anniversary of the certification fo r those grantees with a one-time certification. These lists must identify the street address or location of the workplace s in those instances in which work is to be performed at specific sites. In other situations it may be necessary to use a categorical identification instead of specific site s. The common rule defines in relevant part Drug-free workplace as a site for the performance of work done in connection with a specific grant... 29 CFR 98.605 b 4 . In the preamble to the interim common rule it stated that the term site for the performance of work is taken directly from the statute and it is intended that the grantee will determine what the site for the performance of work is and specify such in the grantee s certification - amended by the final rule to certification application or in a list on file with the grantee. In determining the number of sites for performance of work to be listed it should be noted that only the prime grantee and not subgrantees are covered by requirements under this subpart. Although not specifically addressing the number of sites to be listed the preamble to the interim final rule stated that if a Federal agency provides financial assistance to a State agency which in turn passes through the assistance to several local agencies only the State agency that receives th e assistance directly from the Federal agency receives the grant. Consequently it is only the State agency that is required to make a drug- free workplace certification under the regulation section by Section Analysis - 54 FR 4948 . Again emphasizing the limits of the requirements the preamble to the interim final rule states that only prime grantees and not subgrantees are covered by requirements under the new Subpart F Section by Section Analysis - 54 FR 4949 . 8. Grounds for Suspension Termination or Debarment . Grantees determined to be in violation of any of the following will be subject to the imposition of sanctions set forth in the Act a Submission of a false certification b Failure to comply with the requirements of the certification and c Failure by the grantee to make a good faith effort to maintain a drug-free workplace. Lack of a good faith effort would be indicated by such a number of the grantee s employees having been convicted under criminal drug statutes for violations occ urring in the workplace. Circumstances of grantees vary widely so that the actual number of violations will be determined on a case by case basis. The preamble to the interim final rule specifically states that criminal drug violations by employees not occurring in the workplace are not grounds for a sanction. Likewise evidence of drug abuse by employees in the workplace that does not result in a criminal conviction is not a ground for a sanction. 9. Sanctions . Sanctions set forth in the Drug-Free Workplace Requirements include a Suspension ie. withholding of payments under the grant b Suspension or termination of the grant and c Suspension or debarment of the grantee. The decision o f which sanction or sanctions to apply in a particular case is left to the discretion of the Federal grantor agency. In determining the level of organization at which a sanction should be imposed in case of a violation of the certification requirements the regulation where appropriate focuses on the department division or other unit of the grantee responsib le for performance under the grant. For example if several different organizational units of a State agency receive grants from a Federal agency and one of the State organizational units violates a requirement of the regulation sanctions should be imposed on that organizational unit not on the entire State agency. On the other hand where it is appropriate in the context of a particular Federal grant program to view the entire grantee organization as responsible for the implementation of d rug-free workplace requirements under this rule the entire organization could be subject to sanctions. If the third sanction debarment is exercised the debarred grantee is ineligible for the award of any grant from any Federal agency for a period to be specified in the final decision not to exceed five years. The rules include a provision which allows the agency bead to issue a written waiver of any of these sanctions if the agency head determines that such a waiver would be in the public interest. The determination of the public interest is within the discretion of the agency head i.e. in the DOL the Secretary of Labor and this waiver authority may not be delegated. The review and administrative appeal available to grantees can be found in the debarment procedures at 29 CFR 98.310. The debarment regulations at 29 CFR 98.200 state that debarment or suspension does not affect a person s organization s eligibility for statutory entitlements or mandatory awards.... 10. Coverage . For the purpose of the Drug-Free Workplace Act grants include block grants and entitlement grant programs whether or not they are exempted from coverage under the grants management common rule Uniform Administrative Requirements f o r Grants and Cooperative Agreements to State and Local Governments . Subgrantees are not required to make a drug-free workplace certification under the regulation. 11. Exemptions . Exemptions include grants providing technical assistance in the form of in-kind services other assistance in the form of loans loan guarantees interest subsidies insurance direct appropriations and any veterans benefits to ind ividuals. Current grantees whose grants were approved and awarded prior to March 18 1989 are not required to make certifications in order to continue receiving payments under existing grants. Grantees are not required to make a certification prior to a no-cost time extension of an existing grant. 12. Costs . A grantee s costs incurred specifically to comply with these requirements are allowable costs under the grant provided that the costs meet the usual criteria for allowability. Grantees are not required by the common rule to provide or pay for rehabilitation programs. 13. Effective Date . This Training and Employment Information Notice shall be effective as of the date of issuance. 14. Rescission . Training and Employment Information Notice No. 1-89. 15. Inquiries . Questions concerning this information notice should be directed to James MacDonald on 202 535-0704. Grantees may also contact their respective ETA Grant Officers regarding specific certification questions. 16. Attachments . 1 Federal Register Notice - - Drug Free Workplace Requirements Notice and Final Rules and 2 Sample certification format . Instructions For The Attached Sample Drug-Free Workplace Certification Source Federal Register Vol. 55 No. 102 Friday May 25 1990 Please read the instructions carefully. By signing the accompanying document the grantee is providing the assurance that it will fulfill the requirements set forth by the Drug-Free Workplace Act of 1988 and its implementing regulations codified at 2 9 CFR 98 Subpart F. The certification set out below is a material representation of fact upon which reliance is placed when the Federal agency awards the grant. If it is determined that the grantee knowingly rendered a false certification or otherwise violated the requ irements of the Drug-Free Workplace Act the Employment and Training Administration ETA in addition to any other remedies available to the Federal Government may take action authorized under the Drug-Free Workplace Act. Workplaces under grants need not be identified on the certification. If known they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application or upon award if there is no application the grantee must keep the identity of the workplace s on file in its office and available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee s drug-free workplace requirements. Workplace identifications must include the actual address of buildings or parts of buildings or other sites where work under the grant takes place. Categorical descriptions may be used e.g. all vehicles of a mass transit authority or State highway department while in operation State employees in each local unemployment office performers in concert halls or radio studios . If the workplace identified by the agency changes during the performance of the grant the grantee shall inform the agency of the change s if it previously identified the workplace in question. Definitions of terms in the NonProcurement Suspension and Debar- ment common rule and Drug-Free Workplace common rule apply to this certification. Grantees attention is called in particular to the following definitions from these rules Controlled substance means a controlled substance in Schedules I through V of the Controlled Substances Act 21 U.S.C. 812 and as further defined by regulation 21 CFR 1308.11 through 1308.15 Conviction means a finding of guilt including a plea of nolo contendere or imposition of sentence or both by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture distribution dispensing use or possession of any controlled substance Employee means the employee of a grantee directly engaged in the performance of work under a grant including i All direct charge employees ii all indirect charge employees unless their impact or involvement is insignificant to the perfor mance of the grant and iii temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee s payroll. This definition does not include workers not on the payroll of the grantee e.g . volunteers even if used to meet a matching requirement consultants or independent contractors not on the grantee s payroll or employees of subrecipients or subcontractors in covered workplaces . Sample format Drug-Free Workplace Requirements Certification Alternate I. Grantees Other Than Individuals Persuant to the The Drug-Free Workplaoe Act of 1988 and its implementing regulations codified at 29 CFR 98 Subpart F I the undersigned in representation of the grantee attest and certify that the grantee will provide a drug-free workplace by 1. Publishing a statement notifying employees that the unlawful manufacture distribution dispensing possession or use of a controlled substance is prohibited in the grantees workplaoe and specifying the actions that will be taken against employ ees for violation of such prohibition 2. Establishing a drug-free awareness program to inform employees about a The dangers of drug in the workplace b The grantee s policy of maintaining a drug-free workplace c Any available drug counseling rehabilitation and employee assistance programs and d The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace 3. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statenent requixed by paragraph 1 4. Notifying the employee in the statement required by paragraph 1 that as a condition of employment under the grant the employee will a Abide by the terms of the statement and b Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction 5. Notify the agency in writing ten calendar days after receiving notice under subparagraph 4 b from an employee or otherwise receiving actual notice of such conviction. We will provide such notice of convicted employees including position titl e to every grant officer on whose grant activity the convicted employee was working. The notice shall include the identification number s of each affected grant. 6. Taking one of the following actions within 30 calendar days of receiving notice under subparagraph 4 b with respect to any employee who is so convicted a Taking appropriate personnel action against such an employee up to and including termination consistent with the requirements of the Rehabilitation Act of 1973 as amended or b Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal State or local health law enforcement or other appropriate agency 7. Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs 1 2 3 4 5 6 . 8. Notwithstanding it is not required to provide the workplace addresses under the grant as of today the specific sites are known and we have to provide the specific addresses with the understanding that if any of the identified places change durin g the performance of the grant we will inform the agency of the changes. The following are the sites for the performance of work done in connection with the specific grant including street address city county state and zip code Check if there are workplaces on file that are not iden- tified here. Check if an additional page was required for the listing of the workplaces. I declare under penalty of perjury under the laws of the United States and under the Penalties set forth by the Drug-Free Workplace Act of 1988 that this certification is true and correct. Signature Typed Name and Title I certify that I am the Signer Name Official Title of the grantee that I who sign this Grantee Name Drug-Free workplace certification on behalf of the grantee do so by the authority given by and such signing is Source of Authority within the scope of my powers. Authorized Signature Executed on