ADVISORY MEMORANDUM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01364R000700190011-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 23, 2016
• Document Release Date: April 18, 2013
• Sequence Number: 11
• Publication Date: August 31, 1988
• Content Type: MEMO

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Date ?
STAT
STAT
ROUTING AND TRANSMITTAL SLIP
7 September 1988
TO: (Name, office symbol, room number,
building, Agency/Post)
1. DIRECTOR OF MEDICAL SERVICES
Initials
Date
2.
3.
4.
5.
Action
File
Note and Return
Approval
For Clearance
Per Conversation
As Requested
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Prepare Reply
Circulate
For Your information
See Me
Comment
Investigate
Signature
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REMARKS
FYI
OGC, received a copy.
DO NOT use this form as a RECORD of approvals, concurrences, disposals.
clearances, and similar actions
VOA ahem& nrn SVIrlb01, Agency/Post)
EXA/DDA
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* U.S. Government Printing Office: 1987-181-246/60000
OPTIONAL FORM 41 (Rev. 7-76)
Prescribed by CM
FPRIR (41 CFR) 101-11.20$
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DEPARTMENT OF HEALTH & HUMAN SERVICES Public Health Servic DNA Registry f
MEMORANDUM
gg- 113/)(
Alcohol, Drug Abuse and
Mental Health Administration
Rockville MD 20857
DATE: August 31, 1988
FROM: Chairman, Interagency Coordinating Group
SUBJECT: Advisory Memorandum
TO: Tiers I, II, and III Liaisons for a Drug-Free Federal
Workplace
As Chairman of the Interagency Coordinating Group (ICG) for the
President's drug-free workplace initiative, I am writing to each
agency with responsibility for carrying out Executive Order 12564
for the purpose of bringing you up to date on issues concerning
Government-wide implementation of Federal Drug-Free Workplace
Programs and sharing with you information from the August meeting
of the Interagency Coordinating Group.
In the event some of you did not see the July 12 New York Times
editorial titled "Yes: Drug Tests for (Some) Officials", I have
enclosed it. It adds a rather persuasive voice to the drug
testing debate and puts into perspective our work as Federal
officials with responsibility for the Federal drug-free workplace
programs.
Tier III Plans: AS of this writing 56 Tier III agencies have
submitted plans which are now moving through the review process
in this order:
1. Receipt and review by OWI staff
2. Review by ICG members
3. Consolidation of OWI views by OWI staff and, if OWI
determines that negotiation is warranted, negotiation
responsibility is assigned to a member of the ICG (DoJ, OPM, or
DHHS). After negotiations, any revised plan is sent to all ICG
members for their concurrence and recommendation for
certification. If no issues or problems call for negotiation,
ICG members are asked to concur in a recommendation for
certification without any negotiation.
4. Request concurrence of DHHS Advisory Board members in
the ICG recommendation for certification by the Secretary.
5. Coordinate with OMB on the cost evaluation and OMB
report to Congress.
6. Prepare a report to Congress wherein the Secretary of
Health and Human Services certifies the plan as required by
Pub. L. 100-71.
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Page 2 - Tiers I, II, and III Liaisons for Drug-Free Federal
Workplace
Tier III plans are now at various levels in the review process.
Since there is no requirement that all Tier III plans be
submitted simultaneously, several reports to Congress will
transmit the plans in groups as they are completed until all are
certified. It is anticipated that at least one such group report
to Congress will be submitted by the end of the fiscal year.
Amendment of Certified Plans: As you know, section 503 of
Pub. L. 100-71 requires that the Secretary of Health and Human
Services certify to certain committees of Congress that each
agency plan is in compliance with applicable provisions of law
and the Guidelines. Section 503 makes no provision for the
ongoing review or continuing certification of plans. If an
agency sees a need to change its certified plan, i.e., the plan
which the Secretary of Health and Human Services certified to the
Congress, it is that agency's responsibility to ensure that any
modified plan is in compliance with the Executive Order and
Guidelines. Any proposed modifications should be carefully
reviewed with the agency's General Counsel. If the changes are
major, an agency may decide that they warrant consultation with
OWI, DoJ or OPM before amending its plan. Some agencies have
deferred any consideration of changes until after they have had a
year's experience with the certified plan. If an agency does
modify its plan it should notify employees of changes that will
affect them and include a copy of the plan as amended in the
agency's annual report to Congress required by section 503(f) of
Pub. L. 100-71.
Waivers: Requests for waivers from provisions of the Mandatory
Guidelines for Federal Workplace Drug Testing Programs as
provided at section 1.1(f) of the Guidelines are being considered
by the Waivers Committee established by the DHHS. Scientific and
technical representatives from relevant Federal departments serve
on this committee. In order for consideration to be given to
waiving any requirement of the Guidelines, an agency must submit
a written request to the Secretary of Health and Human Services
describing the rationale for requesting deviation from the
specified provision(s).
Privacy Act: Attached for your information and guidance is a
summary statement on the Privacy Act prepared by OPM. Some of
you have brought to the ICG's attention your concern about
Privacy Act implications surrounding the creation of drug test
records following implementation of Drug-Free Federal Workplace
Programs. In particular, questions have arisen concerning use of
existing systems of records and the creation of new systems of
records for drug test results. OPM has amended two Government-
wide systems of records in which drug test results may be placed.
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Page 3 - Tiers I, II, and III Liaisons for a Drug-Free Federal
Workplace
Agency systems of records (pre-existing or new) may also become
the repository for drug test results. When a Privacy Act issue
arises, consult your agency's Privacy Act Officer. If you are
unable to resolve at the agency level a Privacy Act question
which focuses on systems of records for drug test results, also
consult OPM's Office of Workforce Information (John Sanet,
[phone]).
Litigation Update: There are more than a dozen pending legal
challenges to Federal agency drug testing programs and two broad
challenges to the Executive Order. The attached summary of
pending cases, prepared by DoJ for the ICG, gives an overview of
ongoing litigation surrounding Federal drug testing programs.
Conference: "Drugs in the Workplace: Research and Evaluation
Data": On September 14-16, 1988, the National Institute on Drug
Abuse (NIDA) is sponsoring a conference titled "Drugs in the
Workplace: Research and Evaluation Data." The conference, which
will be held in Washington, D. C., will provide current
information on the prevalence, impact, and treatment of drug use
in the work force. Such information is essential to the design,
implementation, and evaluation of drug programs in industry.
Through the sharing of information by members of the business and
research communities, NIDA hopes to encourage joint research and
evaluation projects related to issues of drugs in the workplace.
Registration information and other details can be obtained from
Ms. Loraine Price at the TRITON Corporation, 1010 Wayne Avenue,
Suite 300, Silver Spring, Maryland 20910, [phone].
DHHS Collection Contract: Although negotiations are in final
stages, no award has been made as of the date of this memorandum.
MRO Manual: This manual has been submitted to the printer. As
soon as it arrives from the printer, several copies will be
mailed to your agency. Additional copies will be available for
purchase from the. Government Printing Office.
National Laboratory Certification Program: The applicant
laboratories are currently undergoing the required performance
tests and inspection visits in order to be recommended for
certification. DHHS anticipates releasing the initial list of
certified laboratories in October and plans to transmit it to
your agency as soon as it is available.
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Page 4 - Tiers I, II, and III Liaisons for a Drug-Free Federal
Workplace
Videotapes: You should have already received complimentary
copies of the first two tapes in the four-part videotape series
developed by NIDA on the topics of drugs in the workplace and the
role of EAPs. Later this year the two remaining tapes on
education/prevention and drug testing will be furnished to you.
Additional copies will be available for loan from the National
Clearinghouse for Alcohol and Drug Information (NCADI) through
its video loan program ([phone]) and the entire series
will be available for purchase from National Audio Visual Center,
Customer Services Section, 8700 Edgeworth Drive, Capitol Heights,
MD 20043-3701, phone [phone].
Enclosures
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A24
(Mc ;New Mork Ttituteo
Founded in 1851
ADOLPH S. OCHS. Publisher 1896-1935
ARTHUR HAYS SULZBERGER. Publisher 1935-1961
ORVIL E. DRYFOOS, Publisher 1961-1963
7//;--
THE NEW YORK TIMES, TUESDA
essimmirmff.
ARTHUR OCHS SULZBERGER, Publisher
ARTHUR OCHS SULZBERGER JR.. Deputy Publisher
MAX FRANKEL, Executitte Editor
ARTHUR GELB, Managing Editor
JAMES L. GREENFIELD. Assistant Managing Editor
WARREN HOGE. Assistant Managing Editor
JOHN M. LEE. Assistant Managing Editor
ALLAN M. SIEGAL. Assistant Managing Editor
JACK ROSENTHAL. Editorial Page Editor
LESLIE H. GELB. Deputy Editorial Page Editor
LANCE R. PRIMIS. President
J. A. RIGGS JR., Exec. VP., Production
HOWARD BISHOW, Sr. V.P., Operations
RUSSELL T. LEWIS, Sr. VP, Production
ERICH G. LINKER JR.. Sr. V.P., Advertising
JOHN M. O'BRIEN. Sr. VP. Finance & Human Resources
ELISE J. ROSS, Sr.V.P., Systems
Yes: Drug Tests for (Some) Officials
Does the Federal Government have the right
"to seize at random the bodily fluids of hundreds of
thousands of its employees and search those fluids
by urinalysis for evidence of drug abuse?" That's
what the American Civil Liberties Union and other
critics of the Reagan Administration's random drug
testing program are asking.
In due course, they'll get an answer from the
Supreme Court. The right answer is yes: if limited
to cases of demonstrated need, such testing can be
conducted with decent regard for privacy.
President Reagan is entitled to some latitude to
fight the drug war on his own turf. Government has
made the sale and use of certain substances illegal.
Government need not hire drug users or keep them
on the public payroll. But it's crucial that Govern-
ment use its power sensibly and sensitively.
Law and public perceptions have come a long
way since the Plainfield, N.J., fire department
raided its own fire station two years ago, roused
sleeping firefighters and demanded urine samples
on the spot. The Reagan program addresses the
need for fair warning to employees and job appli-
cants, dignified yet reliable collection of samples,
safeguards against false results and considerate
behavior toward users willing to accept help.
The Civil Liberties Union argues that urine test-
ing is a search. That's correct, but the next question
is whether such a search is reasonable under the
Fourth Amendment without a warrant based on
reasonable suspicion of criminal conduct. The Gov-
ernment makes a plausible case when it compares
drug testing to administrative health and building
inspections, for which the Court has not demanded
probable cause that there's evidence of crime.
The random drug testing program also asserts
plausible Federal interests. Ir one case before the
Court, a Customs Service regulation requires test-
ing for any employee seeking a transfer to a posi-
tion involving interdiction of narcotics, carrying
firearms or handling classified material. In the
other case, the Transportation Department man-
dates testing of railroad employees who are in-
volved in train accidents.
It seems absurd, at least for personnel who en-
force the law and have heavy responsibility for pub-
lic safety, to insist that authorities must harbor
strong suspicions before testing them. Random test-
ing does not cast a net of suspicion over all employ-
ees in sensitive positions.
Despite court challenges, including a lawsuit
filed by 42 Justice Department employees, the basic
programs on their face are not excessively sweep-
ing. The Justice plan, which conceivably can cover
anyone connected with law enforcement, is pru-
dently limited to employees with grand jury respon-
sibility or access to classified information.
Even if the Supreme Court gives broad ap-
proval to the Reagan testing programs, the need
will remain to administer them compassionately.
But to tolerate drug abuse among pivotal public ser-
vants is to abuse the public they serve.
A Fair and Practical Plant-Closings Bill
The House is scheduled to vote this week on the
controversial plant-closings bill, which would re-
quire businesses to give 60 days' notice when plan-
ning large layoffs or a complete shutdown. The Sen-
ate passed it by a surprisingly large 72-to-23 mar-
gin, but the bill needs veto-proof House approval,
, _Act?, It is ay due act of social ustice.
year's foreign trade bill, which President Reagan
singled out as his main reason for vetoing that bill.
The House voted to override, but the Veto was sus-
tained in the Senate. The strategy of Congress's
Democratic leadership now is to send the President
a free-standing plant-closings bill with such strong
su rt that a veto would be seen as proof that Re-
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PRIVACY ACT UPDATE
OPM published amendments to two existing systems of records:
"Recruiting, Examining, and Placement Records" (OPM/GOVT-5) and
"Employee Medical File System Records" (OPM/GOVT-10), in the
Federal Register on June 12, 1987, 52 FR 22564. Each system
notice contains a list of routine uses to which the records may
be put and provided, in pertinent part, as follows:
d. To disclose information to the Department of Justice, or
in a proceeding before a court, adjudicative body, or other
administrative body before which the agency is authorized to
appear, when:
/1. The agency, or any component thereof; or
2. Any employee of the agency in his or her official
capacity; or
3. Any employee of the agency in his or her individual
capacity where the Department of Justice or the agency has
agreed to represent the employee; or
4. The United States, where the agency determines that
litigation is likely to affect the agency or. any of its
components,
is a party to litigation or has an interest in such
litigation, and the use of such records by the Department of
Justice or the agency is deemed by the agency to be relevant
and necessary to the litigation, provided, however, that in
each case it has been determined that the disclosure is
compatible with the purpose for which the records where
collected.
After the publication of the amended system of records
notices in the Federal Register, Congress passed Pub. L. 100-71
which contains provisions at section 503 that provided for
strictly circumscribed disclosure of drug test results. It
provides, in pertinent part, as follows:
(e) The results of a drug test of a Federal employee
may not be disclosed without the prior written consent
of such employee, unless the disclosure would be --
(1) to the employee's medical review
official (as defined in the scientific and
technical guidelines referred to in
subsection (a)(1)(A)(ii));
(2) to the administrator of any Employee Assistance
Program in which the employee is recelving
counseling or treatment or is otherwise
participating;
( 3 ) to any supervisory or management
official within the employee's agency having
authority to take adverse personnel action
against such employee; or
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(4) pursuant to the order to a court of
competent jurisdiction where required by the
United States Government to defend against
any challenge against any adverse personnel
action.
In order to conform the two previously amended systems of
records notices to provisions of Pub. L. 100-71 concerning
disclosure pursuant to a court order, OPM published a new set of
amendments to those two systems of records on January 26, 1988,
53 FR 2118. Those amendments, which brought the systems notices
into strict conformity with section 503, became effective on
March 28, 1988.
OPM has made these changes to the two Government-wide
systems of records in which drug test results could be placed.
Indeed, it is anticipated that drug test results will be placed
in "Employee Medical File System Records" (OPM/GOVT-10) by the
Medical Review Officers when received from the laboratory. Other
pre-existing or new agency systems of records may also become the
repository for drug test results. Drug test results will stay in
OPM/GOVT-10 until such time as they may be used for an authorized
purpose; for example, as support for an adverse disciplinary
action.
To the extent that an agency has a previously established
system of records for that type of record, it may amend it to
provide for inclusion of drug test results. Any such amendment
should include the disclosure prohibitions contained in section
503. In addition, new systems of records may be established by
agencies as the need arises. Agencies may consult with the
Office of Management and Budget (OMB), as the agency tasked with
oversight responsibilities under the Privacy Act, concerning the
amendment or creation of systems of records for those purposes.
OMB is considering the issuance of a model systems notice for
agencies to use when amending or establishing systems of records
that will contain drug test results. The ICG will continue to
monitor recordkeeping issues as agencies move toward
implementation of the program.
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STATUS OF FEDERAL DRUG-TESTING CASES
August 12, 1988
BROAD CHALLENGES TO THE EXECUTIVE ORDER:
NTEU v. Reagan, Civil No. 86-4058 (E.D. La). On April 29,
1988, the Court dismissed the challenge to the Executive Order,
holding that it was not ripe for review. The Court also held that
the FPM letter concerning drug testing was procedurally invalid.
Motions to reopen the case and amend the opinion by both sides
were argued on June 1, 1988.
AFGE v. Reagan, No. C-88-1697-AJZ (N.D. Cal.), is a broad-
based challenge to the Constitutionality of the Executive Order,
which is nearly identical to that filed by the National Treasury
Employees Union in the Eastern District of Louisiana.
U.S. CUSTOMS SERVICE:
National Treasury Employees Union v. von Raab, 816 F.2d 170
(5th Cir. 1987), stay denied, 55 U.S.L.W. 1879 (U. S. June 1,
1987) is a challenge to the Customs Service policy of testing
applicants for sensitive positions. The Supreme Court has
accepted certiorari on this case. 56 U.S.L.W. 3590 (February 29,
1988). Government's brief was filed on June 17; argument is
expected in October.
DEPARTMENT OF THE ARMY:
The Army's civilian drug testing program, implemented in
1986, was upheld by a federal district court in Virginia.
Mulholland v. Department of the Army, 660 F. Supp. 1565 (E.D. Va.
1987) and the appeal dismissed. In Thomson v. Weinberger, 1988
U.S. Dist. LEXIS 2560 (D. Md. March 28, 1988), the court
permanently enjoined random testing of a civilian biologist and
pipefitter at the Aberdeen Proving Grounds.
In a decision regarding three consolidated cases, a federal
district court for the District of Columbia (Judge Hogan) held
the random testing portion of the Army's program was unconsti-
tutional, National Federation of Federal Employees v. Carlucci,
680 F. Supp. 416 (D.D.C. 1988). The United States Court of
Appeals for the District of Columbia granted the government's
motion to stay that decision, pending appeal, and the Army has
resumed all forms of civilian drug testing, No. 87-1797 (D.C.
Cir. March 30, 1988). Our appellate brief is due on August 11,
Appellees' brief due on September 13, and oral argument scheduled
October 18, 1988 before Chief Judge Wald, Circuit Judges Mikva
and Sentelle. Oral argument is consolidated with American
Federation of Government Employees v. Dole, No. 87-5417.
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DEPARTMENT OF TRANSPORTATION:
American Federation of Government Employees v. Dole, 670 F.
Supp 445 (D.D.C. 1987) upheld all of the Department's program.
That case is currently on appeal. Appellant's brief is due July
22, amicus curia's brief due August 11, and our brief is due
September 13. Oral argument is consolidated with National
Federation of Federal Employees v. Carlucci, No. 88-5080 on
October 18 before the same panel: Chief Judge Wald, Circuit
Judges Mivka and Sentelle.
DOT's post-accident testing program for the railroad
industry is being separately challenged in Railway Labor
Executives' Association v. Burnley, 839 F.2d 575-(9th Cir. 1988).
In this case, a divided panel of the Ninth Circuit held that the
Federal Railway Association's (FRA) post-accident testing program
violated the Fourth Amendment. The Ninth Circuit has stayed its
decision pending a ruling from the Supreme Court. Accordingly,
the FRA continues to test under its three-year old program. The
Supreme Court granted certiorari in this case, 56 U.S.L.W. 3831
(U.S. June 6, 1988) and will combine this case with the Customs
program for oral argument.
DOT's post-accident testing program is also being challenged
in Nat'l Air Traffic Controllers Ass'n v. Burnley, No. C-88-2028-
JPV (N.D. Cal.). On June 6, 1988, the District Court denied
plaintiff's motion for a temporary restraining order, and on July
19, the Court granted the government's motion for summary
judgment. The plaintiffs plan to appeal.
BUREAU OF PRISONS:
AFGE v. Meese, No. C-88-1419-SAW (N.D. Cal.), is a
challenge by the American Federation of Government Employees
Union against the Bureau of Prison's Drug-Free Workplace Plan.
Following a Temporary Restraining Order issued on May 20, 1988,
Judge Stanley Weigel preliminarily enjoined all but the applicant
testing program of the Bureau on June 16. A request to stay the
decision was denied by a two member panel of the 9th Circuit on
June 29, 1988, and by U.S. Supreme Court Justice Sandra Day
O'Connor on July 25, 1988. Plaintiffs are currently engaged in
discovery.
DEPARTMENT OF JUSTICE (OFFICES, BOARDS & LITIGATING
DIVISIONS):
Harmon v. Meese, No. 88-1766 (D.D.C.), is a challenge by 41
DOJ employees against the DOJ Drug-Free Workplace Plan,
contesting random testing of DOJ employees in "sensitive"
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positions. On July 29, 1988, Judge George H. Revercomb
preliminarily enjoined the DOJ Plan. At DOJ's request, the
injunction was made permanent the following day.
DEPARTMENT OF COMMERCE (NATIONAL WEATHER SERVICE):
Ouadros v. Reagan, No C-88-1764-RHS (N.D. Cal.), is a
challenge by the National Weather Service Employee's Union
against the U.S. Department of Commerce Drug-Free Workplace Plan
in the context of random testing of meteorlogists, meteorological
technicians, hydrologists, and hydrological technicians. On
August 12, 1988, Judge Robert H. Schnacke preliminarily enjoined
the testing of those four positions under the DOC plan.
VETERANS ADMINISTRATION:
AFGE v. Turnage, No. 088-20357 WAI (N.D. Cal.), is a
challenge by the American Federation of Government Employees
Union of the drug testing plan of the Veterans Administration
which issued its 60-day notice on May 25.
Hansen et al. v. Turnage, No. C88-20361 RPA (N.D. Cal.), is
a challenge filed by the ACLU to the drug testing plan of the
Veterans Administration which issued its 60-day notice on May 25.
The complaint alleges a class of VA employees, not covered in a
union bargaining. unit. On July 28, 1988, Judge Robert P. AqUilar-
preliMinarily enjoined the program.
DEPARTMENT OF DEFENSE (DEPENDENTS SCHOOLS):
Ahlisten v. Reagan, No. C-88-2007-BLJ (N.D. Cal.), is a
challenge by the Oversees Education Association against the
Department of Defense Dependents Schools Drug,-Free Workplace
Program, specifically contesting random testing of oversees
school teachers. The case is currently pending on a motion for
summary judgment filed by the Association.
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