Drug Rules Say U.S. Employees May Be Fired

In its major move to carry out President Reagan’s call for a drug-free federal workplace, the Office of Personnel Management has written regulations that appear to depart from the President’s assurances to federal workers that drug users will not be fired.

Federal workers in sensitive positions may be fired for a single instance of illegal drug use and must be dismissed for a second offense, the new guidelines say.

The rules written by the OPM, the government’s personnel manager, lay out the details of the President’s Sept. 15 executive order mandating a drug-free workplace. They will be submitted to the Federal Register on Monday for official publication next week and will take effect immediately.

The guidelines go far beyond the President’s statements in August that urinalysis would not be used to identify federal workers for firing. “There should be no threat of losing their job or of any punishment,” Reagan said. “There should be an offer of help, that we would stand by ready to help them take that treatment that would free them from this habit.”

Counseling and employee assistance are important elements in the final rules. Under the guidelines, employees found to be using drugs must be referred to an employee-assistance program and must be given an opportunity to undergo rehabilitation. But the OPM leaves an agency head free to fire a drug user for a first offense. There is no requirement that the agency prove that drug use affects an employee’s work.

In part, OPM officials said, this punitive aspect of the regulations reflects existing law, which allows for the firing of drug abusers under certain carefully controlled circumstances.

“We didn’t want to confuse people by having one thing in the regulations and another in the law,” an OPM official said.

Political Pressure

Equally important, however, was intense political pressure on the OPM, primarily from the Justice Department, to make it possible for the government to fire a drug user. This latitude is expected to be used in “very rare circumstances,” one official said.

A Secret Service agent caught using drugs while entrusted with protecting the President’s life is a frequently cited example.

The threat of firing gives new importance to the question of who will be tested. The President said in his executive order that workers in “sensitive” positions may be tested at the discretion of agency heads.

The definition of a sensitive position is so broad that more than half of government workers are covered. However, once an agency head has defined the “pool” of employees who may be tested, the guidelines require that the secretary or director take the second step of deciding which groups of employees in that pool will be tested. Agency heads have complete latitude in deciding whom to test.

Possible Approaches

An agency head could decide not to test any employees, although OPM aides point out that this would violate the spirit of the President’s executive order. Others could decide to test virtually everyone, because in some agencies all jobs can be defined as sensitive.

The OPM expects that only a fraction of government employees will actually be tested.

Employees in sensitive positions include those in positions designated “special sensitive, critical sensitive or non-critical sensitive” for purposes of conducting background checks for federal applicants; employees who have been granted access--or may be granted access--to classified information; individuals serving under presidential appointments, and law enforcement officers.

Under the regulations, disciplinary action must be taken against federal workers--other than those who voluntarily turn themselves in--after a single confirmed positive drug test.

Anybody who refuses to be tested may be fired as “failing to meet a condition of employment.”

Court Ruling

The OPM was required to draft guidelines implementing the President’s executive order in consultation with the Justice Department. While the process was going on, with drafts being exchanged between the Justice Department and the OPM, a U.S. District Court judge in New Orleans ruled the Customs Service’s drug-testing program unconstitutional.

Judge Robert F. Collins ruled that the mandatory testing violates a federal employee’s constitutional protection against illegal search and seizure. The National Treasury Employees Union, which represents customs workers and brought the suit, predicted that the decision would kill the drug-testing program.

At least one Administration official argued in favor of holding up the regulations until a definitive higher court ruling has been issued. Several courts have ruled against drug testing; two have allowed it, and the issue is expected to go to the Supreme Court.