B-227239, JUN 11, 1987

B-227239, JUN 11, 1987

MISCELLANEOUS TOPICS - FEDERAL ADMINISTRATIVE/LEGISLATIVE MATTERS - PERSONNEL - DRUGS - TESTING DIGEST: CIVILIAN PERSONNEL - COMPENSATION - ADVERSE PERSONNEL ACTIONS - DRUGS - TESTING 1. REGARDLESS OF WHETHER PROPOSED LANGUAGE REQUIRING THAT DRUG TESTING PROGRAMS ESTABLISHED PURSUANT TO EXECUTIVE ORDER 12564 COMPLY WITH TITLE 5 OF THE U.S.C. AND THE REHABILITATION ACT OF 1973, AS AMENDED, 29 U.S.C. 701 ET SEQ. IS ADDED TO THE SUPPLEMENTAL APPROPRIATIONS BILL FOR FISCAL YEAR 1987, THOSE LAWS AND THE PROTECTIONS DEVELOPED THEREUNDER WOULD BE APPLICABLE TO FEDERAL EMPLOYEES WHO TEST POSITIVE AND ARE DISCIPLINED. CIVILIAN PERSONNEL - COMPENSATION - ADVERSE PERSONNEL ACTIONS - DRUGS - TESTING 2. CASES DEVELOPED UNDER THE CIVIL SERVICE REFORM ACT, 5 U.S.C. 7513(A), SUGGEST THAT DRUG ABUSE PRESUMPTIVELY IS A VALID REASON FOR DISCIPLINING EMPLOYEES WHOSE WORK IS CRITICAL TO PUBLIC SAFETY, AND THAT NO DIRECT EVIDENCE OF JOB IMPAIRMENT NEED BE DEMONSTRATED TO JUSTIFY DISCIPLINARY ACTION.

THE HONORABLE STENY H. HOYER:

YOU HAVE ASKED WHETHER INCLUSION OF PROPOSED LANGUAGE IN SECTION 503(C) OF THE DRAFT SUPPLEMENTAL APPROPRIATIONS BILL FOR FISCAL YEAR 1987, REQUIRING THAT DRUG TESTING PROGRAMS ESTABLISHED PURSUANT TO EXECUTIVE ORDER 12564 COMPLY WITH TITLE 5 OF THE U.S.C. /1/ AND THE REHABILITATION ACT OF 1973, AS AMENDED, 29 U.S.C. SEC. 701 ET SEQ., WOULD INHIBIT FEDERAL AGENCIES FROM DISMISSION OR OTHERWISE DISCIPLINING EMPLOYEES WHO TEST POSITIVE AND ARE EMPLOYED IN POSITIONS CRITICAL TO THE PUBLIC SAFETY SUCH AS AIR TRAFFIC CONTROLLERS.

WE FIND THAT REGARDLESS OF WHETHER SUCH LANGUAGE IS INCLUDED IN THE BILL, THOSE LAWS AND THE PROTECTIONS DEVELOPED THEREUNDER, WOULD BE APPLICABLE TO FEDERAL EMPLOYEES WHO TEST POSITIVE AND ARE DISCIPLINED. FURTHERMORE, THE CASES DEVELOPED UNDER THE CIVIL SERVICE REFORM ACT, SUGGEST THAT DRUG ABUSE PRESUMPTIVELY IS A VALID REASON FOR DISCIPLINING EMPLOYEES WHOSE WORK IS CRITICAL TO PUBLIC SAFETY, AND THAT NO DIRECT EVIDENCE OF JOB IMPAIRMENT NEED BE DEMONSTRATED.

A PROVISION OF THE CIVIL SERVICE REFORM ACT OF 1978, PUB.L. NO. 95 454, 92 STAT. 1111, 1136, CODIFIED AT 5 U.S.C. SEC. 7513(A), AUTHORIZES AGENCIES TO TAKE DISCIPLINARY ACTION AGAINST FEDERAL EMPLOYEES ONLY FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE. THE ACT ALSO PROHIBITS AGENCIES FROM DISCRIMINATING AGAINST EMPLOYEES ON THE BASIS OF CONDUCT THAT DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE EMPLOYEE OR THE PERFORMANCE OF OTHERS. 5 U.S.C. SEC. 2302(B)(10). THE CASES UNDER THE ACT CONSISTENTLY HAVE HELD THAT IN TAKING DISCIPLINARY ACTIONS AGENCIES MUST ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE, A CONNECTION OR NEXUS BETWEEN AN EMPLOYEE'S MISCONDUCT AND IMPAIRED JOB PERFORMANCE. E.G., YOUNG V. HAMPTON, 568 F.2D 1253, 1258 61 (7TH CIR. 1977) (DISMISSAL OF ARMY EMPLOYEE FOR OFF-DUTY POSSESSION OF AMPHETAMINES, BARBITURATES AND MARIJUANA IMPROPER IN VIEW OF EMPLOYEE'S LENGTHY SATISFACTORY WORK RECORD, LACK OF CONTACT WITH THE PUBLIC AND ABSENCE OF SHOWING THAT MISCONDUCT AFFECTED THE GOVERNMENT).

NEVERTHELESS, IN CASES INVOLVING POSITIONS THAT ARE CRITICAL TO THE PUBLIC SAFETY OR WHERE DRUG ABUSE OTHERWISE IS INCOMPATIBLE WITH JOB PERFORMANCE, COURTS GENERALLY HAVE PERMITTED DISCIPLINARY ACTION EVEN WHERE THERE WAS NO DIRECT PROOF THAT THE DRUG ABUSE HAD IMPAIRED THE EMPLOYEE'S JOB PERFORMANCE. E.G., BORSARI V. FAA, 699 F.2D 106, 110-11 (2D CIR. 1983) (EVEN THOUGH EVIDENCE INDICATED SUPERIOR JOB PERFORMANCE DISMISSAL OF AIR TRAFFIC CONTROLLER WAS PROPER BASED ON EMPLOYEE'S SALE AND POSSESSION OF MARIJUANA AND COCAINE, CONVICTION FOR UNLAWFUL MARIJUANA POSSESSION, AND FAA FINDING THAT DRUG INVOLVEMENT WAS INCOMPATIBLE WITH SUCCESSFUL AIR TRAFFIC CONTROL); MASINO V. UNITED STATES, 589 F.2D 1048, 1055-57 (CT.CL. 1978) (DISMISSAL OF CUSTOMS INSPECTOR FOR PERSONAL USE AND TRANSPORTATION OF MARIJUANA PROPER WHERE EMPLOYEES DUTIES REQUIRED ENFORCEMENT OF FEDERAL LAWS AGAINST ILLEGAL TRANSPORTATION OF MARIJUANA). THUS, THE CASES SUGGEST THAT DISCIPLINING EMPLOYEES WHO ARE DRUG ABUSERS AND PERFORM WORK SIMILAR TO THAT AT ISSUE IN BORSARI AND MASINO WOULD BE CONSISTENT WITH THE CIVIL SERVICE REFORM ACT.

WE ADD ONE CAVEAT. THE CASES UNDER THE CIVIL SERVICE REFORM ACT GENERALLY HAVE NOT INVOLVED DISCIPLINARY ACTION BASED SOLELY ON POSITIVE DRUG TESTING, BUT ON A SHOWING OF DRUG POSSESSION, SALE, OR BOTH, OR CONVICTIONS FOR EITHER ONE, OR BOTH. ARGUABLY, THE NEXUS SHOWING COULD BE MORE RIGOROUSLY REQUIRED WHEN DISCIPLINARY ACTIONS ARE BASED SOLELY ON POSITIVE DRUG TESTS. /2/

AMONG OTHER THINGS, THE REHABILITATION ACT OF 1973, AS AMENDED, 29 U.S.C. SEC. 794, PROTECTS HANDICAPPED EMPLOYEES FROM BEING EXCLUDED FROM PARTICIPATION IN, BEING DENIED THE BENEFITS OF, OR BEING SUBJECTED TO DISCRIMINATION UNDER ANY EXECUTIVE AGENCY PROGRAM OR ACTIVITY. A DRUG ABUSER GENERALLY IS CONSIDERED A HANDICAPPED INDIVIDUAL UNDER THE ACT. E.G., DAVIS V. BUCHER, 451 F.SUPP. 791, 795-96 (E.D. PA. 1978). NEVERTHELESS, THE ACT EXEMPTS FROM ITS PROTECTION DRUG ABUSERS WHOSE CURRENT USE OF DRUGS PREVENTS THE INDIVIDUAL FROM PERFORMING HIS OR HER JOB, OR WHOSE EMPLOYMENT BY REASON OF SUCH DRUG ABUSE WOULD CONSTITUTE A DIRECT THREAT TO PROPERTY OR THE SAFETY OF OTHERS. 29 U.S.C. SEC. 706(8)(B). CONSISTENT WITH THE CIVIL SERVICE REFORM ACT CASES, IT WOULD APPEAR THAT DRUG ABUSERS EMPLOYED IN POSITIONS CRITICAL TO PUBLIC SAFETY WOULD BE EXCLUDED FROM THE BENEFITS OF SECTION 794. THUS, THE REHABILITATION ACT WOULD NOT INHIBIT DISCIPLINING EMPLOYEES WHO ARE DRUG ABUSERS AND WHO HOLD THOSE POSITIONS.

IN ANY EVENT, REGARDLESS OF WHETHER THESE LAWS SPECIFICALLY ARE MENTIONED IN THE SUPPLEMENTAL APPROPRIATIONS BILL, THEY WOULD BE APPLICABLE TO FEDERAL EMPLOYEES DISCIPLINED FOR POSITIVE DRUG TESTS. TO THE EXTENT THAT THE EXECUTIVE ORDER OR IMPLEMENTING REGULATIONS CONFLICT WITH THOSE LAWS, IT IS EVIDENT THE LAWS WOULD PREVAIL.

WE HOPE WE HAVE BEEN OF ASSISTANCE.

/1/ WE LIMIT OUR COMMENTS ON TITLE 5, TO THE PERTINENT PROVISIONS OF THE CIVIL SERVICE REFORM ACT.

/2/ IN VIEW OF TIME CONSTRAINTS, WE HAVE NOT THOROUGHLY RESEARCHED THIS POINT.