OFFICE OF MANAGEMENT AND BUDGET

Division of Facilities Management

PROPOSED

PUBLIC NOTICE

Drug Testing Regulation

In accordance and compliance with the procedures set forth at 29 Del.C. §§1131, et seq. and 29 Del.C. §§10101, et seq., the Director of the Office of Management and Budget is proposing to adopt the following Regulation:

I. Title of Regulation:

Regulations for the Drug Testing of Contractor and Subcontractor Employees Working on Large Public Works Projects (hereafter the “Drug Testing Regulation”). Members of the public may receive a copy of the proposed regulation at no charge by United States Mail by writing Mr. Robert Scoglietti at the following address:

122 Martin Luther King Jr. Blvd South

Dover, DE 19901.

II. Brief Synopsis of the Subject, Substance, and Issues:

The proposed regulation is intended to safeguard the public by establishing the mechanism, standards and requirements of a Mandatory Drug Testing Program for Contractors and Subcontractors that will be incorporated by reference into all Large Public Works Contracts awarded pursuant to 29 Del.C. §6962.

The key components of the Drug Testing Regulation include the following:

III. Possible Terms of the Agency Action:

There is no sunset date for this Regulation.

IV. Statutory Basis or Legal Authority to Act:

29 Del.C. §§ 6903; 6905; 6908 (a)(6); 6961; 6962; 6964.

V. Other Regulations that May Be Affected by the Proposal:

None Known.

VI. Notice of Public Comment:

Any person who wishes to make written suggestions, provide compilations of data, testimony, briefs or other written materials concerning to the proposed Drug Testing Regulation must submit them to:

Robert Scoglietti

Delaware Office of Management and Budget

122 Martin Luther King Jr. Blvd. South

Dover, DE 19901

no later than the close of business on March 7, 2014.

VII. Notice of Public Hearing:

The Director of the Office of Management and Budget, or an employee of the Office of Management and Budget designated by the Director, will hold a public hearing at which members of the public may present comments on the proposed regulation on February 11, 2014 in Room 219 of the Haslet Armory, 122 Martin Luther King Jr. Blvd South, Dover DE at 2:00 PM. It is requested that those interested in presenting statements at the public hearing register in advance by contacting:

Robert Scoglietti

Delaware Office of Management and Budget

122 Martin Luther King Jr. Blvd. South

Dover, DE 19901

robert.scoglietti@state.de.us

VII. Prepared By:

Robert Scoglietti

Director of Policy and External Affairs

Delaware Office of Management and Budget

Regulations for the Drug Testing of Contractor and Subcontractor Employees Working on Large Public Works Projects

The Office of Management and Budget (“Office”), has developed these regulations that require Contractors and Subcontractors to implement a program of mandatory drug testing for Employees who work on Large Public Works Contracts funded all or in part with public funds pursuant to 29 Del.C. §6908(a)(6). The regulations establish the mechanism, standards and requirements of a Mandatory Drug Testing Program that will be incorporated by reference into all Large Public Works Contracts awarded pursuant to 29 Del.C. §6962.

“Contractor” means an entity such as, but not limited to, an individual, firm, partnership or corporation that has a contractual obligation to perform work for contracts awarded pursuant to 29 Del.C. §6962.

“Drug Testing Firm” is an entity engaged in the business of providing drug testing services for businesses, individuals, governments or any entity that requires drug testing of Employees, applicants, licensees, etc., in compliance with these requirements.

“Employee” means an individual employed by a Contractor or Subcontractor who works on the Jobsite of a Large Public Works Contract but does not fulfill a clerical or administrative function. For the purpose of this definition, clerical or administrative functions shall refer to job responsibilities that do not generally require an employee to work outside of the Contractor’s Jobsite office, home office or other employer-provided office. For the purposes of this regulation, the term “Employee” shall also include supervisors and foremen working on the Jobsite. The term “Employee” shall also include delivery personnel employed by a Contractor or Subcontractor working on or delivering materials and equipment to and from a Jobsite.

“Jobsite” means the site or area directly or indirectly owned, operated or controlled by the Owner in which the Contractor or Subcontractor performs work or delivers services to the Owner. For the purpose of this definition, “Jobsite” does not mean a remote work site not under the direct or indirect control of the Owner in which work is performed to fulfill the Contractor’s or Subcontractor’s obligations.

“Large Public Works Contract” means a contract for a public works construction awarded pursuant to 29 Del.C. §6962.

“Mandatory Drug Testing Program” means a defined set of basic procedures, requirements and rules that must be used by a Contractor or Subcontractor to test Employees for drugs in compliance with these requirements.

“Owner” is the state agency, school district or entity that awards a Large Public Works Contract to a Contractor pursuant to 29 Del.C. §6962.

“Positive Test Result” and “Fail a Drug Test” means the result reported by a Health and Human Services certified laboratory when a specimen contains a drug or drug metabolite equal to or greater than the cutoff concentration.

“Random Drug Testing” means that an Employee is chosen at random for testing without advance notice, from a pool of Employees working on the Jobsite. Specific requirements for random drug testing conducted under these regulations are described in Section 5.0.

“Subcontractor” means an entity such as, but not limited to, an individual, firm, partnership or corporation that has a contractual obligation to perform work for, or supply services to a Contractor as defined in section 2.1.

“Testing Certification Forms” means a form supplied by the Owner and completed by the Contractor and Subcontractor certifying their Employees are subject to drug testing procedures in accordance with this regulation.

“Testing Result Forms” means a form summarizing drug testing completed monthly by the Contractor and Subcontractor and submitted to the Owner by the Contractor in accordance with requirements contained in the bid solicitation.

3.1 The following documentation requirements apply:

3.1.1 At bid submission - A solicitation for a Large Public Works Contract must require each Contractor that submits a bid for the work to submit with the bid a written plan for a program to test the Contractor's and listed Subcontractor’s Employees for drugs.

3.1.2 At contract award - A Large Public Works Contract may not be awarded to a Contractor whose bid does not include a written plan for an Employee drug testing program that complies with this regulation for all known Subcontractors.

3.1.3 During contract execution – Contractors that employ additional Subcontractors on the jobsite may do so only after submitting the Subcontractor’s plan for an Employee drug testing program.

3.1.4 In the event of an emergency a Contractor may employ additional Subcontractors on the jobsite prior to submitting the Subcontractor’s plan for an Employee drug testing program provided that said plan is submitted to the Owner as soon as practicable.

3.2 A Contractor shall be treated as having a Mandatory Drug Testing Program that complies with this regulation if the program includes the following:

3.2.1 The program meets the minimum standards in section 4.0 of this regulation.

3.2.2 The program provides for the frequency of testing of Employees as per section 5.0 of this regulation.

3.2.3 The program imposes disciplinary measures on an Employee who fails a drug test as per section 6.0 of this regulation.

4.1 Testing for the presence of drugs in an Employee's system and the handling of test specimens shall be conducted in accordance with guidelines for the collection, chain-of-custody procedures, laboratory testing, and Medical Officer Review procedures contained within the Mandatory Guidelines for Federal Workplace Drug Testing Programs published by the Substance Abuse and Mental Health Services Administration (SAMHSA). http://workplace.samhsa.gov/DrugTesting/Level_1_Pages/mandatory_guidelines5_1_10.html

All tests must be processed by a federal Health and Human Services certified laboratory. Contractors must provide documentation detailing the procedures used in the collection, testing and reporting of drug tests sufficient to show conformance with SAMHSA guidelines.

4.2 Contractors and Subcontractors subject to these regulations may procure the services of an appropriate Drug Testing Firm to administer their program. A Contractor or Subcontractor may also implement a Mandatory Drug Testing Program using in-house personnel and resources. However a Contractor or Subcontractor doing so shall have to demonstrate that the program meets or exceeds the requirements specified herein to the satisfaction of the Owner.

4.3 Employees subject to drug testing shall be tested using at a minimum a ten-panel protocol testing plus urine alcohol screening for the following:

4.4 The frequency of Random Drug Testing and the methodology for selecting Employees to be screened are defined in section 5.0 and shall be incorporated into Contractor and Subcontractor mandatory testing procedures. A Contractor or Subcontractor may incorporate rules or requirements that exceed the requirements defined herein.

5.1 Initial Drug Testing - Employees commencing work on a Jobsite must be tested with the exception that an Employee who has passed a random or scheduled drug test within the past 60 days from the date of commencing work shall be permitted to work at the Jobsite without further testing; however, the Employee is still subject to random testing.

5.2 Random Drug Testing - During the course of a project, each Contractor and Subcontractor with Employees on the Jobsite shall implement Random Drug Testing according to the following requirements.

5.2.1 All Employees will be subject to random, unannounced testing.

5.2.2 The selection of Employees shall be made by a scientifically valid method of randomly generating an Employee identifier from a Contractor or Sub-contractor’s pool of Employees.

5.2.3 No less that 10% of a Contractor’s or Subcontractor’s Employees shall be randomly selected each month for testing. Contractors or Subcontractors with less than 10 Employees shall test at least one of their Employees, selected randomly per month. Each Employee shall have an equal chance of selection each time the selection is made. Because the selection process is random, some Employees may not be tested within a year, while others may be tested more than once.

5.2.4 Employees notified that they have been selected must report within four hours for testing to a site specified. Employees so notified must have been given such notification at least four hours before the scheduled closing time of the testing facility. Any failure to report for random testing, or to cooperate with the testing procedure shall be considered a positive result.

5.2.5 Purposely impeding or delaying an Employee’s fulfillment of the testing requirements herein by a Contractor or Subcontractor may subject the Contractor or Subcontractor to sanctions listed in Section 8.

5.3 Reasonable Suspicion Testing – An Employee will be required to take a drug test at any time his or her employer or the Owner reasonably believes that he or she is using or possessing a drug, displaying physical symptoms of being under the influence of drugs, or finding drug paraphernalia or open alcohol containers on the Jobsite.

5.4 Return to Duty Testing – As required in Section 6.0.

5.5 Accident Triggered Testing – An Employee will be required to take a drug test and may be subject to an onsite alcohol breathalyzer test at any time there is a Jobsite accident involving loss or significant property damage, injury or death to an Employee of the Contractor, Subcontractor, or Owner or member of the public.

5.5.1 As soon as practicable following an accident, the Contractor will notify the Employee(s) whose performance could have contributed to the accident of the need for the test.

5.5.2 The appropriate Contractor shall ensure that an Employee, required to be tested under this section, is tested as soon as practicable, but no longer than 4 hours after the accident. Employees so notified must have been given such notification at least four hours before the scheduled closing time of the testing facility. If the drug test is not conducted within 4 hours, attempts to conduct the test must cease and the reasons for the failure to test documented.

5.5.3 An Employee who is subject to post-accident testing who fails to remain readily available for such testing, including notifying a supervisor of his or her location if he or she leaves the scene of the accident prior to submission to such test, may be deemed to have refused to submit to testing.

5.5.4 If an Employee fails or refuses to be tested, he/she must be removed from the Jobsite.

5.5.5 Nothing in this section shall be construed to require the delay of necessary medical attention for the injured following an accident, or to prohibit an Employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.

5.6 All testing required by this section shall be administered according to the standards outlined in Section 4.

6.1 The disciplinary measures contained within a Contractor’s or Subcontractor’s drug testing program for an employee who tests positive to a mandatory drug test must include at a minimum, all of the following:

6.1.1 The Employee is subject to an immediate suspension from any public works Jobsite.

6.1.2 The Employee is not eligible for reinstatement by the Contractor or Subcontractor to any public works Jobsite until 30 days after the Employee tests negative on a ten drug panel plus alcohol test certified by a medical review officer.

6.1.3 The Employee is subject to unscheduled monthly random testing for at least one (1) year after reinstatement.

6.1.4 An Employee who has tested positive for more than one drug test within a three year period shall be permanently banned from working at public works Jobsites.

6.2 A Contractor or Subcontractor shall report the Positive Test Result to the Employee’s professional licensing board, if applicable.

7.1 Prior to the Award of a Contract:

7.1.1 All requests for proposals for Large Public Works Contracts awarded pursuant to 29 Del.C. §6962 shall incorporate these regulations by reference. All bids received in response to Large Public Works Contract requests for proposal without inclusion of a Mandatory Drug Testing Program shall be deemed non-responsive.

7.1.2 Each solicitation shall include a Testing Certification Form to each bidder. The Testing Certification Form shall be executed by the bidder and all listed Subcontractors to certify to the Owner that the bidder and all Subcontractors shall adhere to the requirements defined herein.

7.1.3 Individual Testing Certification Forms shall be completed and executed by the bidder and each listed Subcontractor. The executed Testing Certification Forms shall be submitted to the Owner with the bid documents, or when Subcontractors are determined.

7.1.4 If a bidder fails to provide properly completed or executed Testing Certification Forms for itself or its listed Subcontractors as required by this section, the Owner shall determine that the bid is non-responsive according to 29 Del.C. §6962.

7.2 At bid award:

7.2.1 A Large Public Works Contract may not be awarded to a Contractor whose bid does not include a testing program certification form for all known Subcontractors at the time of award.

7.3 During the term of the contract:

7.3.1 The State shall not be obligated to pay, and the Contractor or Subcontractor shall expressly agree that, any portion of work performed by a Contractor or Subcontractor commenced before that Contractor or Subcontractor has provided a properly executed Testing Certification Form, provided however that emergency work as referenced in 3.1.4 may not be subject to this provision.

7.3.2 During the term of the contract, Contractors and Subcontractors shall submit monthly Testing Report Forms to the Owner by the 10th of each month. The forms shall at a minimum contain the following information:

7.3.2.1 The number of Employees who worked on the Jobsite during the previous month.

7.3.2.2 The number of employees subjected to random testing during the previous month.

7.3.2.3 The number of negative results and the number of positive results.

7.3.2.4 Action taken by the Contractor or Subcontractor on an Employee who failed or tested positive to a random test.

7.3.3 The general or prime Contractor shall be responsible for the timely submission of properly executed Testing Certification Forms and Testing Results Forms.

7.3.4 Any Positive Test Result including the Employee name and action taken in response by a Contractor or Subcontractor must be reported by the Contractor to the Owner within 24 hours of the Contractor receiving the test results.

7.3.5 The Owner shall have the right to periodically audit all Contractor and Subcontractor test results at the Contractor or Subcontractor’s offices.

7.3.6 The failure to comply with these reporting requirements shall be considered a material breach of any agreement relating to the performance of work by the Contractor or Subcontractor.

8.1 A Contractor or Subcontractor on a Large Public Works contract that fails to implement a Mandatory Drug Testing Program in accordance with this regulation or falsifies testing results shall be subject to the following sanctions:

8.1.1 Written warning (1st offense).

8.1.2 Prohibition from bidding on new public works jobs for a period not to exceed three months (2nd offense) and one year (3rd offense).

8.1.3 For subsequent offenses, debarment or bond revocation.

8.2 Notwithstanding any other provision of this regulation, if any failure to comply with the requirements of this regulation are particularly flagrant or egregious, the Owner may seek a termination for cause, a temporary suspension, a determination that the Contractor or Subcontractor are not responsible, debarment or bond revocation, and any other statutory, common law, or equitable remedy.