Frequently Asked Questions About Sanctions
This section provides the NRC staff's answers to the following questions related to sanctions, as they relate to fitness-for-duty:
Under the 2008 FFD rule, must individuals who have already violated the rule for alcohol twice be terminated? Under the 1989 FFD rule, they could have essentially "two strikes" with alcohol and still remain employed.
The 1989 FFD rule required that if an individual received two confirmed positive drug test results, then his/her authorization would be denied for 3 years [see §26.27(b)(2)(vii) in the 1989 FFD rule]. The 1989 FFD rule did not impose the same sanctions for two confirmed positive alcohol test results. Instead, §26.27(b)(5) stated that "Licensee sanctions for confirmed misuse of alcohol… shall be sufficient to deter abuse." In contrast, the March 31, 2008, rule imposes the same sanctions both for confirmed positive drug test results and for confirmed positive alcohol test results [see §26.75(e)].
If an individual whose authorization was denied under the 1989 FFD rule as a result of two confirmed positive drug test results seeks authorization under the March 31, 2008, rule, a licensee may initiate the necessary steps to grant authorization once the 3 years have expired. Although the March 31, 2008, rule requires a denial of authorization for a minimum of 5 years for the same offense [as stated in §26.75(e)(2)], this revised sanction is not retroactive.
In the case of an individual who was subject to licensee sanctions for two confirmed positive alcohol test results, the revised requirements in §26.75(e)(2) also do not apply retroactively.
However, for individuals whose second confirmed positive drug or alcohol test result occurred under the 1989 FFD rule, §26.75(e)(2) of the March 31, 2008, rule specifies that these individuals must be denied authorization for a minimum of 5 years after the next confirmed positive test result.
NEI raised a similar question during a public meeting held on September 5, 2007, to discuss implementation guidance for 10 CFR Part 26. The exact question and NRC response is provided in the meeting summary, which is accessible through the NRC's Agencywide Documents Access and Management System (ADAMS), under Accession No. ML072570657 (see Attachment 2, Question #2). This information is provided for reference only, as the meeting summary does not provide additional detail.
If an individual has a second drug test violation under the former Part 26 and has his or her unescorted access terminated for three years, when a licensee implements the revised Part 26, would the individual have to wait a minimum of three or five years prior to seeking reinstatement? What is the outcome if the violations were for alcohol test failures under the former Part 26?
The former FFD rule required that if an individual received two confirmed positive drug test results, then his/her authorization would be denied for 3 years. The former FFD rule did not impose the same sanctions for two confirmed positive alcohol test results. Specifically, the former § 26.27(b)(5) stated that "Licensee sanctions for confirmed misuse of alcohol… shall be sufficient to deter abuse." In contrast, the current rule imposes the same sanctions both for confirmed positive drug test results and for confirmed positive alcohol test results [see § 26.75(e)].
If an individual whose authorization was denied under the former FFD rule as a result of two confirmed positive drug test results seeks authorization under the current rule (published on March 31, 2008 rule), a licensee may initiate the necessary steps to grant authorization once the 3 years have expired. Although the current rule requires a denial of authorization for a minimum of 5 years for the same offense [as stated in § 26.75(e)(2)], this revised sanction is not retroactive.
In the case of an individual who was subject to licensee sanctions for two confirmed positive alcohol test results, the revised requirements in § 26.75(e)(2) also do not apply retroactively.
However, for individuals whose second confirmed positive drug or alcohol test result occurs under the current FFD rule, § 26.75(e)(2), these individuals must be denied authorization for a minimum of 5 years. In accordance with § 26.75(a), a licensee or other entity may impose more stringent sanctions, except as specified in paragraph (h) of this section.
I was recently informed that I violated the FFD policy for alcohol. I have been granted unescorted access previously this year at a different power plant and it was terminated favorably after my tour of duty. I am awaiting a denial letter in the mail and was told my security that I can start the appeal process. Where can I read about this process?
The review process for fitness-for-duty policy violations is described in 10 CFR 26.39. The rule requires that each licensee have procedures for the review of FFD policy violations. In addition, the rule requires that licensees provide an opportunity for the individual to respond to and submit additional relevant information regarding the FFD policy violation. Therefore, you should address your response to the FFD policy violation through your licensee's FFD program that you received the violation from.
As used in § 26.75(e)(2), does the word "any" mean any subsequent confirmed positive drug or alcohol test result where the test was conducted in accordance with Part 26? Or would "any" also include failure of drug and alcohol tests that were conducted by EAP [Employee Assistance Program], where their testing process may not comply with the Part 26 requirements?
In order to impose the sanctions described in § 26.75(e)(2), the subsequent confirmed positive drug or alcohol test must be conducted in accordance with Part 26.
I was denied access in 2005 due to a failed drug test. I have been through rehabilitation and have no problem now. How long before I can work at a nuclear site again?
You first must complete any sanctions imposed by the licensee at the time of the positive drug test result. For example, if you have two years remaining in a 5-year denial, you will be ineligible for authorization (i.e., licensee approval to have unescorted access to the power reactor plant Protected Area and perform certain duties) until the remaining two-year period is over). Once the imposed sanction is over, a licensee is enabled by regulation to grant you authorization if they elect to hire you. 10 CFR 26.69(b) and (c) provide the requirements that licensees must implement in order to grant authorization to an individual with "potentially disqualifying fitness-for-duty information." This review would include, in part, a review of past confirmed positive drug and alcohol test results. Furthermore, the NRC-licensee must also meet the minimum requirements of 10 CFR 73.56(d) – (h) in order to grant access authorization to any person.
If you test positive on a fitness for duty drug or alcohol test how long are you banned from getting a red badge to another nuclear plant?
If you fail a fitness for duty drug or alcohol test, under 10 CFR Part 26.75 and in general, you will receive at a minimum a 14-day denial for a 1st occurrence, a 5-year denial for a 2nd occurrence, and a permanent denial of authorization for a 3rd occurrence for all reactor sites under that FFD program. Additionally, Part 26 enables licensees to establish more stringent sanctions than the minimum sanctions in section 26.75. Furthermore, during your period of denied authorization, section 73.56(h)(3) prevents any subsequent licensee from granting you access (either escorted or unescorted) to the protected area or vital area of their nuclear power plant as well, unless another licensee completes an initial unescorted access authorization process to grant you access. The following regulations apply to your question.
§ 73.56(h)(3) states: Access denial. Licensees or applicants may not permit an individual, who is identified as having an access-denied status by another licensee subject to this section, or has an access authorization status other than favorably terminated, to enter any nuclear power plant protected area or vital area, under escort or otherwise, or take actions by electronic means that could adversely impact the licensee's or applicant's safety, security, or emergency response or their facilities, under supervision or otherwise, except upon completion of the initial unescorted access authorization process.
§ 26.75(a) states: This section defines the minimum sanctions that licensees and other entities shall impose when an individual has violated the drug and alcohol provisions of an FFD policy. A licensee or other entity may impose more stringent sanctions, except as specified in paragraph (h) of this section.
§ 26.75(e), states in part: Lacking any other evidence to indicate the use, sale, or possession of illegal drugs or consumption of alcohol on site, a confirmed positive drug or alcohol test result must be presumed to be an indication of offsite drug or alcohol use in violation of the FFD policy.
(1) The first violation of the FFD policy involving a confirmed positive drug or alcohol test result must, at a minimum, result in the immediate unfavorable termination of the individual's authorization for at least 14 days from the date of the unfavorable termination.
(2) Any subsequent confirmed positive drug or alcohol test result, including during an assessment or treatment period, must result in the denial of authorization for a minimum of 5 years from the date of denial.
§ 26.75(g) states: (g) For individuals whose authorization was denied for 5 years under paragraphs (c), (d), (e)(2), or (f) of this section, any subsequent violation of the drug and alcohol provisions of an FFD policy must immediately result in permanent denial of authorization.
In March 2010, working as a contractor at an NRC licensed power reactor, I was denied unescorted access for 3 years due to a failed drug test. As a result of the failed drug test, I completed an EAP (Employee Assistance Program) through my employer. The program included 4 hours of individual therapy sessions covering topics of addiction and stress management among others with an LPC.
In November 2015, I requested unescorted access to a different NRC licensed power reactor, and was informed that the program I completed in 2010 was not sufficient per NRC requirements; and was denied unescorted access based on that. I cannot find any information regarding what kind of treatment program would meet NRC requirements for my case. Can you point me to the right resources? Or let me know exactly what the NRC requires in order to successfully obtain unescorted access.
10 CFR Part 26 does not specify a treatment program that licensees are required to meet. Each site has their own qualified substance abuse expert (§ 26.187 SAE, See Below), and it is their responsibility to make recommendations concerning education, treatment, return to duty, follow-up drug and alcohol testing, and aftercare. Each treatment program established by the SAE should be geared towards the individual's needs.
§ 26.75(a) defines the minimum sanctions a licensee must impose when an individual has violated the drug and alcohol provisions of the licensee's FFD policy. A licensee or other entity may impose more stringent sanctions (see below).
§ 26.69(b) and (c) (Below) provide the "minimum" requirements that licensees must implement in order to grant authorization to an individual with "potentially disqualifying fitness-for-duty information." This review would include, in part, a review of past confirmed positive drug and alcohol test results; conducting a determination of fitness to determine if the individual is fit to safely and competently perform his or her duties; and ensuring a that clinically appropriate treatment and follow-up testing plans has been developed by an SAE. Complete details of these minimum requirements are described below under §§ 26.69(b) and (c). Furthermore, the NRC-licensee must also meet the minimum requirements of 10 CFR 73.56(d) – (h) in order to grant access authorization to any person.
Note: A similar issue can be found in the "Frequently Asked Questions about Sanctions", questions 5 and 6.
In summary, it is up to the licensee to make a determination of fitness for an individual to safely and competently perform their duties, and to determine if an individual is trustworthy and reliable for granting unescorted access to the licensee's protected area. However, § 73.56(l) require licensees to implement a review procedure for individuals who have been denied unescorted access authorization (see below). The review procedure allows an opportunity for the individual to provide additional relevant information and an opportunity for an objective review of the information upon which the denial or unfavorable termination of unescorted access or unescorted access authorization was based. Personnel should receive this information in the denial letter provided by the licensee.
I have included (below) all the NRC regulations that pertain to this subject matter. Thanks and if you have any further questions please feel free to contact the NRC.
10 Code of Federal Regulations (CFR):
§ 26.187(g) states in part: The SAE shall evaluate individuals who have violated the substance abuse provisions of an FFD policy and make recommendations concerning education, treatment, return to duty, followup drug and alcohol testing, and aftercare. The SAE is not an advocate for the licensee or other entity, or the individual. The SAE's function is to protect public health and safety and the common defense and security by professionally evaluating the individual and recommending appropriate education/treatment, follow-up tests, and aftercare.
(1) The SAE is authorized to make determinations of fitness in at least the following three circumstances:
(i) When potentially disqualifying FFD information has been identified regarding an individual who has applied for authorization under this part;
(ii) When an individual has violated the substance abuse provisions of a licensee's or other entity's FFD policy; and
(iii) When an individual may be impaired by alcohol, prescription or over-the-counter medications, or illegal drugs.
(2) After determining the best recommendation for assisting the individual, the SAE shall serve as a referral source to assist the individual's entry into an education and/or treatment program.
(i) To prevent the appearance of a conflict of interest, the SAE may not refer an individual requiring assistance to his or her private practice or to a person or organization from whom the SAE receives payment or in which the SAE has a financial interest. The SAE is precluded from making referrals to entities with whom the SAE is financially associated.
§ 26.75(a), states in part: This section defines the minimum sanctions that licensees and other entities shall impose when an individual has violated the drug and alcohol provisions of an FFD policy. A licensee or other entity may impose more stringent sanctions, except as specified in paragraph (h) of this section.
§ 26.69(b) Authorization after a first confirmed positive drug or alcohol test result or a 5-year denial of authorization. The requirements in this paragraph apply to individuals whose authorization was denied or terminated unfavorably for a first violation of an FFD policy involving a confirmed positive drug or alcohol test result and individuals whose authorization was denied for 5 years under § 26.75(c), (d), (e)(2), or (f). To grant, and subsequently maintain, the individual's authorization, the licensee or other entity shall—
(1) Obtain and review a self-disclosure and employment history from the individual that addresses the shorter period of either the past 5 years or since the individual's last period of authorization was terminated, and verify that the self-disclosure does not contain any previously undisclosed potentially disqualifying FFD information before granting authorization;
(2) Complete a suitable inquiry with every employer by whom the individual claims to have been employed during the period addressed in the employment history obtained under paragraph (b)(1) of this section, and obtain and review any records that other licensees or entities who are subject to this part may have developed related to the unfavorable termination or denial of authorization;
(3) If the individual was subject to a 5-year denial of authorization under this part, verify that he or she has abstained from substance abuse for at least the past 5 years;
(4) Ensure that an SAE has conducted a determination of fitness and concluded that the individual is fit to safely and competently perform his or her duties.
(i) If the individual's authorization was denied or terminated unfavorably for a first confirmed positive drug or alcohol test result, ensure that clinically appropriate treatment and followup testing plans have been developed by an SAE before granting authorization;
(ii) If the individual was subject to a 5-year denial of authorization, ensure that any recommendations for treatment and followup testing from an SAE's determination of fitness are initiated before granting authorization; and
(iii) Verify that the individual is in compliance with, and successfully completes, any followup testing and treatment plans.
(5) Within 10 business days before granting authorization, perform a pre-access alcohol test, collect a specimen for drug testing under direct observation, and ensure that the individual is subject to random testing thereafter. Verify that the pre-access drug and alcohol test results are negative before granting authorization.
(6) If the individual's authorization was denied or terminated unfavorably for a first confirmed positive drug or alcohol test result and a licensee or other entity grants authorization to the individual, ensure that the individual is subject to unannounced testing at least quarterly for 3 calendar years after the date the individual is granted authorization. Both random and followup tests, as defined in § 26.31(c), satisfy this requirement. Verify that the individual has negative test results from a minimum of 15 tests distributed over the 3-year period, except as follows:
(i) If the individual does not continuously hold authorization during the 3-year period, the licensee or other entity shall ensure that at least one unannounced test is conducted in any quarter during which the individual holds authorization;
(ii) If the 15 tests are not completed within the 3-year period specified in this paragraph due to periods during which the individual does not hold authorization, the followup testing program may be extended up to 5 calendar years to complete the 15 tests;
(iii) If the individual does not hold authorization during the 5-year period a sufficient number of times or for sufficient periods of time to complete the 15 tests required in this paragraph, the licensee or other entity shall ensure that an SAE conducts a determination of fitness to assess whether further followup testing is required and implement the SAE's recommendations; and
(7) Verify that any drug and alcohol tests required in this paragraph, and any other drug and alcohol tests that are conducted under this part since authorization was terminated or denied, yield results indicating no further drug abuse, as determined by the MRO after review, or alcohol abuse, as determined by the result of confirmatory alcohol testing.
§ 26.69(c) Granting authorization with other potentially disqualifying FFD information. The requirements in this paragraph apply to an individual who has applied for authorization, and about whom potentially disqualifying FFD information has been discovered or disclosed that is not a first confirmed positive drug or alcohol test result or a 5-year denial of authorization. If potentially disqualifying FFD information is obtained about an individual by any means, including, but not limited to, the individual's self-disclosure, the suitable inquiry, the administration of any FFD program under this part, a self-report of a legal action, behavioral observation, or other sources of information, including, but not limited to, any background investigation or credit and criminal history check conducted under the requirements of this chapter, before granting authorization to the individual, the licensee or other entity shall—
(1) Obtain and review a selfdisclosure and employment history that addresses the shortest of the following periods:
(i) The past 5 years;
(ii) Since the individual's eighteenth birthday; or
(iii) Since the individual's last period of authorization was terminated;
(2) Complete a suitable inquiry with every employer by whom the individual claims to have been employed during the period addressed in the employment history required under paragraph (c)(1) of this section. If the individual held authorization within the past 5 years, obtain and review any records that other licensees or entities who are subject to this part may have developed with regard to potentially disqualifying FFD information about the individual from the past 5 years;
(3) If the designated reviewing official determines that a determination of fitness is required, verify that a professional with the appropriate qualifications, as specified in § 26.189(a), has indicated that the individual is fit to safely and competently perform his or her duties;
(4) Ensure that the individual is in compliance with, or has completed, any plans for treatment and drug and alcohol testing from the determination of fitness, which may include the collection of a urine specimen under direct observation; and
(5) Verify that the results of pre-access drug and alcohol tests are negative before granting authorization, and that the individual is subject to random testing after the specimens have been collected for pre-access testing and thereafter.
§ 73.56(l) Review procedures. Each licensee and applicant shall include a procedure for the notification of individuals who are denied unescorted access, unescorted access authorization, or who are unfavorably terminated. Additionally, procedures must include provisions for the review, at the request of the affected individual, of a denial or unfavorable termination of unescorted access or unescorted access authorization that may adversely affect employment. The procedure must contain a provision to ensure the individual is informed of the grounds for the denial or unfavorable termination and allow the individual an opportunity to provide additional relevant information and an opportunity for an objective review of the information upon which the denial or unfavorable termination of unescorted access or unescorted access authorization was based. The procedure must provide for an impartial and independent internal management review. Licensees and applicants shall not grant unescorted access or certify unescorted access authorization, or permit the individual to maintain unescorted access or unescorted access authorization during the review process.
Under the current FFD rule, must individuals who have already violated the rule for alcohol twice be terminated? Under the previous rule, persons could have essentially "two strikes" with alcohol and still remain employed.
The previous FFD rule required that if an individual received two confirmed positive drug test results, then his/her authorization would be denied for 3 years [see the 1989 FFD rule's § 26.27(b)(2)(vii)]. This FFD rule did not impose the same sanctions for two confirmed positive alcohol test results. Instead, § 26.27(b)(5) stated that "Licensee sanctions for confirmed misuse of alcohol… shall be sufficient to deter abuse." In contrast, the current rule imposes the same sanctions both for confirmed positive drug test results and for confirmed positive alcohol test results [see § 26.75(e)]. Individuals with two confirmed positive alcohol tests under the new FFD rule must be denied authorization for a minimum of 5 years. Sanctions under the current FFD rule are not retroactive.
Positive alcohol test result example: An employee has tested positive for alcohol under the previous rule and gets a second positive alcohol result over 3 years later. Per the current rule is the licensee required to remove access for the subject employee? Assume that the two positives are more than 3 years apart for the previous rule, however, under the current rule the 2 positives fall within the 5 year clean requirement after the 1st positive.
The current rule became effective on April 30, 2008, and licensees were allowed to defer implementation of the rule (except for Subparts I and K) until March 31, 2009. Assuming that the licensee had implemented the new rule on or before the date of the second positive alcohol test, then the individual must be denied authorization for a minimum of 5 years [per § 26.75(e)(2)]. If the licensee implemented the current rule after the second positive test result, then the provisions of the previous (1989) rule apply. The 1989 FFD rule stated that "Licensee sanctions for confirmed misuse of alcohol… shall be sufficient to deter abuse." The 1989 rule did not impose alcohol-related sanctions equivalent to those in the current rule, § 26.27(b)(5).
What is the length of time a person must wait after a 1st time FFD violation before applying for work at different nuclear plants?
The Fitness-for-Duty final rule establishes the minimum sanctions that licensees and other entities must impose when a person has violated an FFD policy. The minimum sanction for a first violation involving a confirmed positive drug or alcohol test result is the immediate unfavorable termination of the individual's authorization for at least 14 days (see § 26.75(e)(1)). In accordance with § 26.75(a), a licensee or other entity may impose more stringent sanctions except as specified in paragraph (h) of this section.
I recently failed the FFD pre-access test at a nuclear plant and have started a rehabilitation program. Do I need to send a copy of the certificate of completion to anyone at the NRC so that it doesn't affect me should I decide to reapply at a nuclear facility?
You do not need to send a copy of the certificate of completion to the NRC. If you apply for authorization in the future, the licensee will require a self-disclosure from you. In accordance with § 26.61(b), your written self-disclosure to the licensee must include a variety of information, including whether you have been subject to a plan for substance abuse treatment.
What are the requirements for follow up drug testing? How many times a month can you be subjected to FFD after being placed on a follow up program when you have not tested positive at any nuclear site ever?
Section 26.69, "Authorization with potentially disqualifying fitness-for-duty information," establishes requirements for conducting followup testing, which apply to licensees' and other entities' processes for granting and maintaining authorization. In addition, § 26.31(c) discusses all of the types of drug and alcohol testing to which individuals are subject under Part 26. These types of testing include pre-access, for cause, post-event, followup, and random testing. Furthermore, in accordance with § 26.75(a), a licensee or other entity may impose more stringent sanctions except as specified in paragraph (h) of this section.
Under the current 10 CFR Part 26 FFD, if an employee tested positive for drug or alcohol in 1989 and for progressive discipline in relation to a Collective Bargaining Agreement had his or her record cleared for staying clean for 'x' amount of time will that positive test be counted? And if he or she has another positive in the future, will it cause a 5 yr denial of unescorted access?
For individuals whose second confirmed positive drug or alcohol test result occurs under the current rule (March 31, 2008), § 26.75(e)(2) specifies that these individuals must be denied authorization for a minimum of 5 years after the second confirmed positive test result.
Under the current rule, if an employee has a positive drug test they have to be seen by an SAE (Substance Abuse Expert). This SAE has to have a certain credential and has to take qualifying training. Is an SAP (Substance Abuse Professional) that is covered under the DOT 49 CFR Part 40 also an SAE? If an SAP is not a qualified SAE is there an organization that offers the training or can our organization put together a training so credentialed providers can take to become an SAE?
A SAP under 49 CFR Part 40 would be partially qualified to serve as an SAE under 10 CFR Part 26. However, although many of the U.S. Department of Transportation's SAP and NRC's SAE provisions are similar, an individual solely trained to be an SAP would not have knowledge of the specific requirements of Part 26 that differ from those contained in Part 40 (e.g., some of the basic knowledge and qualification training requirements in § 26.187(c) and (d) respectively). An organization may develop its own SAE training to satisfy these requirements. The NRC staff cannot recommend an SAE training provider.
Does an instructor have to be available during computer-based FFD training? See § 26.29(c)(3) which states, in part, that initial and refresher training may be delivered using a variety of media and that the licensee or other entity shall monitor the completion of training and provide a qualified instructor or designated subject matter expert to answer questions during the course of training.
10 CFR 26.29(c)(3) requires licensees to "provide a qualified instructor or designated subject matter expert to answer questions during the course of training." This provision applies to training using any media (including computer-based training). The requirement could be met, for example, by having a qualified instructor or designated subject matter expert available by telephone to answer questions. The qualified instructor or subject matter expert must be available whenever individuals are completing the training.
Does the term "legal action" require the reporting speeding tickets and parking tickets or does the term only apply to issues relating to drug or alcohol issues?
"Legal action" is defined in § 26.5 as follows:
Legal action means a formal action taken by a law enforcement authority or court of law, including an arrest, an indictment, the filing of charges, a conviction, or the mandated implementation of a plan for substance abuse treatment in order to avoid a permanent record of an arrest or conviction, in response to any of the following activities:
(1) The use, sale, or possession of illegal drugs;
(2) The abuse of legal drugs or alcohol; or
(3) The refusal to take a drug or alcohol test.
Speeding tickets and parking tickets would not qualify as legal actions under Part 26.