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NASA
Procedural
Requirements

NPR 3792.1D
Effective Date: May 14, 2018
Expiration Date: May 14, 2025

COMPLIANCE IS MANDATORY FOR NASA EMPLOYEES

Subject: NASA’s Plan for a Drug Free Workplace (Updated w/Change 2)

Responsible Office: Office of the Chief Human Capital Officer

Chapter 4. Finding of Illegal Drug Use and Disciplinary Consequences

4.1 Determination

4.1.1 An employee may be found to use illegal drugs on the basis of any appropriate evidence including, but not limited to:

a. Direct observation.

b. Evidence obtained from an arrest or criminal conviction.

c. A verified other than negative (positive, adulterated, substituted, or invalid) test result.

d. An employee's admission.

4.2 Mandatory Administrative Actions upon a Finding of Illegal Drug Use

4.2.1 The supervisor shall:

a. In consultation with HR, initiate disciplinary action against any employee found to use illegal drugs.

b. Refer employees found to use illegal drugs to the EAP.

c. If an employee occupying a TDP is found to use illegal drugs, consult with HR and OCC or OGC on steps to immediately remove the employee from that position.

d. Notify the Office of Protective Services or Personnel Security in situations when there is a potential safety issue or if the employee holds a security clearance or has access to National Security information.

4.2.2 At the discretion of the Center Director (or designee) and as part of a program of counseling and rehabilitation approved by the EAP, an employee may be permitted to return to duty in a TDP if the return would not endanger public health, safety, or national security.

4.3 Disciplinary Action

4.3.1 Disciplinary action initiated against an employee found to be using illegal drugs may include the full range of disciplinary options, up to and including removal. The severity of the action will depend on the circumstances of each case and be consistent with E.O. 12564.

4.3.2 Supervisors shall initiate disciplinary action against any employee found to use illegal drugs except when an employee voluntarily admits to illegal drug use in accordance with the conditions identified in paragraph 4.4 of this directive.

4.3.3 Disciplinary action will be consistent with Government-wide statutes and regulations, collective-bargaining agreements, and Agency policies.

4.3.4 A supervisor may enter into a disciplinary or last chance agreement with the employee that includes requirements for successful completion of a program of counseling and rehabilitation approved by the EAP.

4.4 Voluntary Referral (Safe Harbor)

4.4.1 Under E.O. 12564, management shall initiate action to discipline any employee found to use illegal drugs in every circumstance except when an employee completes the following under the Agency's "Safe Harbor," which is a self-referral option that allows any employee to step forward and identify him or herself as an illegal drug user for the purpose of entering a drug-treatment program.

a. Voluntarily identifies him or herself to management as a user of illegal drugs, prior to being identified through other means.

b. Successfully completes counseling and rehabilitation through a program recommended and/or approved by an EAP clinician.

c. Refrains from using illegal drugs after successful completion of counseling and rehabilitation.

4.4.2 The key to this provision's rehabilitative effectiveness is an employee's willingness to overcome denial by voluntarily admitting their drug-use problem to their self, to management, and others. Therefore, this provision is not available to an employee who:

a. Is asked to provide a specimen under random, reasonable-suspicion, post-accident, or unsafe practice testing and who thereafter (i.e., just before or after the specimen is collected) admits to drug use.

b. Admits to drug use (on a form or in an interview) during a background investigation required for his/her position or admits to drug use after being asked to provide drug-use information for the investigation.

c. Admits to drug use after being arrested, indicted, or convicted for a drug-related felony or misdemeanor.

d. Has previously been found to use illegal drugs. A second finding of illegal drug use requires initiation of removal and thus is not covered by the protection of Safe Harbor.

4.4.3 When an employee admits to illegal drug use for purposes of invoking Safe Harbor, it constitutes a finding of illegal drug use. This means that the employee is subject to other (non-disciplinary) consequences applicable to an employee found to use illegal drugs, to include removal from his/her TDP, follow-up testing, and the requirement that a subsequent finding result in initiation of removal.

4.4.4 An employee who invokes Safe Harbor is subject to review of their eligibility to occupy a sensitive position or hold a security clearance (if applicable), based on the admission of drug use. Safe Harbor does not protect an employee from disciplinary action (up to and including removal) based on revocation of their security clearance or eligibility to occupy a sensitive position, even if such revocation is due to illegal drug use reported by the employee under Safe Harbor.

4.5 Initiation of Mandatory Removal from Federal Service

4.5.1 In accordance with E.O. 12564, § 5(d), supervisors shall initiate action to remove an employee for any of the following reasons:

a. Refusal to obtain counseling and rehabilitation through an EAP, after having been found to use illegal drugs.

b. Use of illegal drugs following a first finding of illegal drug use.

c. Refusal to be tested, when required.

4.5.2 Supervisors and/or management officials will consult with HR before any disciplinary action is initiated.

4.6 Refusal to Take a Drug Test

4.6.1 Any one of the following is deemed a refusal to take a drug test. For a complete list, see Mandatory Guidelines, section 1-7.

a. Failure to appear for any test within a reasonable time, as determined by management, after being directed to do so.

b. Failure to remain at the collection site until the specimen collection process is complete.

c. Failure to provide a specimen for any drug test required by the Agency.

d. Failure to permit observation or monitoring while providing a specimen, when required as described in chapter 3 of this directive, or failure to follow the observer's instructions related to the collection process.

e. Failure to provide a sufficient amount of urine when directed and when the MRO has determined through a required medical evaluation that there was no adequate medical explanation for the failure.

f. Failure or refusal to take an additional drug test or provide a specimen, as directed by management or by the collector (e.g., based on information that the specimen provided has been tampered with).

g. Failure to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process (i.e., as described in section 3.1) or as directed by management.

h. Failure to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, disrupt the collection process, failure to wash hands after being directed to do so by the collector).

i. Wearing or possession of a prosthetic or other device or substance that could be used to interfere with the collection process or to adulterate or substitute the specimen.

j. Any attempt to adulterate or substitute the specimen provided or admission to the collector or MRO that the donor adulterated or substituted the specimen.

4.6.2 When an employee refuses to be tested as described above, it is considered equivalent to a finding of illegal drug use; therefore, a proposed removal action will be initiated pursuant to 4.5.1 c. of this directive.

4.6.3 If any individual refuses a drug test as described above, the collector will contact the NSSC Drug Testing Team who will contact the servicing DPC to initiate appropriate action.

4.7 Applicants

4.7.1 HR shall withdraw an offer of employment to any applicant outside of the Agency tentatively selected for a TDP who refuses to take a drug test or has a verified other than negative/dilute test result.

4.7.2 When an offer of employment is withdrawn, the applicant may not reapply to the Agency for a period of six months from the date of the verified other than negative test result or refusal to take a drug test. The servicing HR will notify the Agency program manager in order to enforce this provision.

4.7.2 An applicant whose result is negative/dilute shall retest. In accordance with the Mandatory Guidelines, if the recollected specimen provides a negative or negative/dilute result, the MRO reports a negative result and no further action required.

4.7.3 If an applicant has a verified other than negative test result, HR shall object to the applicant for medical or suitability reasons and inform the applicant that the results of the pre-employment drug test preclude NASA from hiring the individual.

4.7.4 In a situation when a current Agency employee, tentatively selected for a TDP, refuses to take a drug test or has a verified other than negative test result, the employee is subject to the full range of consequences, including disciplinary actions up to and including removal, prescribed in this chapter. HR shall withdraw the tentative job offer for the TDP.