What are the practical requirements of the Drug-Free Workplace Act for tribal employers?

The Drug-Free Workplace Act of 1988 (Public Law 100-690) requires that organizations receiving grants from any federal agency agree to maintain a drug-free workplace.  Most tribes exercise their right to receive federal grants and therefore comply with the Act.  The Act requires grant recipients to perform certain specific functions and the Act makes room for recipients to exercise a fair amount of discretion in performing other tasks.

What are those specific tasks?

In complying with the Act, tribal employers must publish a statement (think Employee Handbook or Policy Manual) notifying employees of the reach of the law.  Here is a sample policy statement which I believe is consistent with the Act’s requirements:

The ABC Tribe, in compliance with its laws and policies, and in compliance with the Drug-Free Workplace Act, provides notice that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace and a violation of this rule will result in discipline up to and including termination of employment.  As a condition of employment and retention as an employee, the ABC Tribe requires employees to follow this policy.  Employees convicted of a drug related crime connected to this workplace shall notify the ABC Tribe within 5 days of the criminal conviction.  Upon receipt of information relating to a conviction, the ABC Tribe will communicate those facts to funding agencies.  Accordingly, these communications are not confidential.

Tribal employers should require new employees (and present employees for any changes)  to sign an acknowledgement of the handbook or manual which includes the policy set forth above.  Because of the impact of other related rules and precedent, in addition to getting consent from employees as required by the Act, obtaining employee consent of a tribal employer’s rules is very important to preserve and enhance the tribe’s ability to exercise its civil regulatory jurisdiction over employees.

Moreover, to comply with the Act, employers must establish a drug-free awareness program which informs employees about (1) the dangers of drug abuse in the workplace; (2) the employer’s duty to maintain a drug-free workplace; (3) available drug counseling, rehabilitation and employee assistance programs; and (4) the penalties that may be imposed upon employees for drug abuse violations.

If the tribal employer receives notice of a work related criminal conviction, the tribe is required to inform the contracting agency within 10 days.

A failure by the tribal employer to follow these rules could generate a process wherein the contract or grant payments could be suspended and the contract or grant terminated.

What are those tasks which require tribal employers to exercise discretion?

The consequences of violating the rules, whether the tribal employer requires treatment or directs termination of employment, is up to the tribal employer.  Accordingly, tribal employers must use their discretion in determining whether the tribe, as to drug related matters, is a zero tolerance tribe or a rehabilitation tribe or a mix of both approaches.  In other words, the Act does not impose a standard for the tribal employer’s reaction to an employee breaking the rules, so therefore whether the tribe terminates the employee or gives the employee an opportunity to rehabilitate themselves (depending on the severity of the issue) the tribe must exercise that discretion.

As part of this analysis, what is the impact on tribal employers of those state laws which have legalized the recreational use of marijuana (Washington and Colorado) and those states which permit the use of marijuana for limited medical reasons (21 additional states)?  President Obama’s executive branch has declared that it will not enforce federal marijuana laws within Indian Country presenting an opportunity to tribes to exercise their sovereignty and define the rules in this area.  That declaration could change but in the meantime there are options for tribes to evaluate.  An option for tribal employers is to reject the application of these state laws for tribal employers engaged in activities within tribal lands.  Another option is for tribes to exercise their sovereignty and define these rules and apply them to the tribal workplace.

As part of a tribal employer’s effort to eradicate illegal drug use from the workplace, many tribal employers simultaneously address alcohol in the workplace with similar rules prohibiting the possession or consumption of alcohol in the workplace or in a tribal vehicle while also prohibiting employees to be under the influence of alcohol while on the clock.

While not the focus of this newsletter, many tribal employers utilize testing protocols to determine if employees are violating the rules.  Tests are typically taken after a workplace accident, on a random basis and if the employer has evidence to believe the employee is under the influence of drugs or alcohol.  Those policies also address the type of testing (urine, hair follicle, saliva) and whether a religious based objection will be tolerated if certain tests are requested.  I do not believe there exists an illegal search and seizure defense to tribal employers requiring drug and alcohol tests but this question (like all the others) should be evaluated prior to implementing these policies.

Recommendation:  Check to see if your policy meets the requirements of the Drug-Free Workplace Act and whether your human resources team has the protocols in place to assure compliance with the rules.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.