The Department of Human Resources shall provide guidance on the implementation of this subchapter to all personnel authorities within the District government on or before February 1, 2011.
(Mar. 3, 1979, D.C. Law 2-139, § 2044; as added Mar. 31, 2011, D.C. Law 18-340, § 2(b), 58 DCR 621.)
Cross ReferencesFederal Employees Health Benefits Plan, “supplemental benefit” defined, see § 31-3101.
Mayor and Council members, coverage, see § 1-602.02.
Merit system, effective date provisions, see § 1-636.02.
National Capital Revitalization Corporation, health, life and retirement benefit plans for officers and employees, see § 2-1219.05.
Organization for personnel management, rules and regulations, see § 1-604.04.
Spouse equity, enrollment of former spouses in health benefit plan, see 1-529.04.
Emergency LegislationFor temporary addition of D.C. Law 2-139, Title XX-E, concerning mandatory controlled substance and alcohol testing for protection-sensitive positions, see § 2(a) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Emergency Amendment Act of 2012 (D.C. Act 19-582, December 22, 2012, 60 DCR 120).
For temporary addition of D.C. Law 2-139, Title XX-F, concerning criminal background checks and background investigations for protection-sensitive positions, see § 2(b) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Emergency Amendment Act of 2012 (D.C. Act 19-582, December 22, 2012, 60 DCR 120).
For temporary (90 days) addition of subchapter XX-E, see § 2(a) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Congressional Review Emergency Amendment Act of 2013 (D.C. Act 20-36, March 19, 2013, 60 DCR 4648, 20 DCSTAT 510).
For temporary (90 days) addition of subchapter XX-F, see § 2(b) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Congressional Review Emergency Amendment Act of 2013 (D.C. Act 20-36, March 19, 2013, 60 DCR 4648, 20 DCSTAT 510).
For temporary (90 days) addition of D.C. Law 2-139, Title XX-E, concerning mandatory controlled substance and alcohol testing for protection-sensitive positions, see § 2(a) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Emergency Amendment Act of 2013 (D.C. Act 20-227, November 29, 2013, 60 DCR 16775, 20 STAT 2618).
For temporary (90 days) addition of D.C. Law 2-139, Title XX-F, concerning criminal background checks and background investigations for protection-sensitive positions, see § 2(b) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Emergency Amendment Act of 2013 (D.C. Act 20-227, November 29, 2013, 60 DCR 16775, 20 STAT 2618).
Temporary LegislationSection 2(a) of D.C. Law 19-263 added D.C. Law 2-139, Title XX-E, to read as follows:
“TITLE XX-E. Mandatory Controlled Substance and Alcohol Testing for Protection-Sensitive Positions.
“Sec. 2051. Definitions.
“For the purposes of this title, the term:
“(1) ‘Applicant’ means a person who has filed a written or electronic employment application or resumé, or a person seeking a volunteer appointment, with the District government for a position covered by the provisions of this title.
“(2) ‘Appointee’ means a person who has been made a contingent job offer to a position subject to the provisions of this title.
“(3) ‘Covered employee’ means a District government employee occupying a protection-sensitive position.
“(4) ‘Drug’ means a substance which may have medicinal, intoxicating, performance enhancing or other effects when taken or put into a human body and is not considered a food or exclusively a food.
“(5) ‘Personnel authority’ means an individual or entity authorized by section 406 to implement personnel rules and regulations for employees of an agency or group of agencies of the District government or persons delegated this authority by such an individual or entity.
“(6) ‘Post-accident employee’ means an employee of the District government, who, while on-duty, is involved in a vehicular or other type of accident resulting in personal injury or property damage, or both, in which the cause of the accident could reasonably be believed to have been the result, in whole or in part, of the use of drugs or alcohol on the part of the employee.
“(7) ‘Protection-sensitive position’ means a District government employee, volunteer, or contractual worker in a position having a duty station at the Consolidated Forensic Sciences Laboratory.
“(8) ‘Reasonable suspicion’ means a reasonable belief by a supervisor that an employee in a protection-sensitive position is under the influence of an illegal drug or alcohol to the extent that the employee’s ability to perform the employee’s job may be impaired.
“(9) ‘Reasonable suspicion referral’ means referral of an employee in a protection-sensitive position for testing by the District government for drug or alcohol use.
“(10) ‘Volunteer’ means an individual who works without monetary or other financial compensation.
“(11) ‘Vulnerable adult’ means an individual 18 years of age or older who has a physical or mental condition which impairs the individual’s ability to provide for the individual’s own care or protection.
“Sec. 2052. Drug and alcohol testing for protection-sensitive positions.
“The following individuals shall be tested by the District government for drug and alcohol use:
“(1) Employees in protection-sensitive positions, on a random basis;
“(2) Appointees to protection-sensitive positions;
“(3) Volunteers serving in protection-sensitive positions;
“(4) Applicants under consideration for voluntary service in protection- sensitive positions;
“(5) District employees and volunteers in protection-sensitive positions who have had a reasonable suspicion referral; and
“(6) Post-accident District employees and volunteers in protection-sensitive positions.
“Sec. 2053. Notification of employees.
“(a) All District government employees in protection-sensitive positions shall be given a minimum of 30 days written notice before the implementation of the drug and alcohol testing program set forth by this title. Upon receipt of a written notice of the program, each employee shall be given one opportunity to seek treatment, if the employee has a drug or alcohol problem.
“(b) Upon expiration of the notice period, any confirmed positive drug or alcohol test result, refusal to submit to a drug or alcohol test, or failure to sign the required documents or otherwise cooperate with any part of the drug testing requirements shall result in termination of the employee’s employment in accordance with this title.
“Sec. 2054. Notice to appointees and volunteers.
“(a) Each vacancy announcement for a protection-sensitive position shall include a statement that applicants shall be tested for drug use upon initial appointment and shall be subject to periodic drug and alcohol testing while occupying a protection-sensitive position.
“(b) When a non-competitive recruitment procedure is involved, the Mayor or the personnel authority shall inform the appointee, at the time the contingent job offer is made, that the appointee shall be tested for drugs upon initial appointment, and that the appointee shall be subject to periodic drug and alcohol testing while occupying a protection-sensitive position.
“(c) Before an individual signs a volunteer agreement to perform protection-sensitive functions, the Mayor or the personnel authority shall notify the individual that the individual shall be tested for drug use upon initial appointment, and that the volunteer shall be subject to periodic drug and alcohol testing while performing these functions.
“(d) Upon selection, appointees shall receive written notification prior to testing for drug and alcohol use.
“Sec. 2055. Testing methodology.
“(a) Drug and alcohol analysis shall be performed by an outside contractor at a laboratory certified by the United States Department of Health and Human Services (‘HHS’) to perform job-related drug and alcohol forensic testing.
“(b) The drug and alcohol testing sample shall be collected at a location designated by the District government.
“(c) The collector shall split each sample and secure it for transport to the laboratory.
“(d) The laboratory shall perform the confirmation testing on one sample, and store the split of that sample.
“(e) An individual found to have a confirmed positive urinalysis shall be notified of the result. The individual may then authorize that the stored sample be sent to another HHS- certified laboratory of the individual’s choice, at the individual’s expense, for confirmation testing.
“(f) Reasonable suspicion and post-accident employee or volunteer testing shall follow the same procedures set forth in subsections (a), (b), (c), and (d) of this section. In these cases, the employee or volunteer shall be escorted by a supervisor to the contractor’s test site for specimen collection or a breathalyzer.
“(g) A blood, breath, or urine test conducted pursuant to this section shall be deemed confirmed positive if the test yields a result that the employee’s or volunteer’s alcohol content was either .04 grams or more per 210 liters of breath, .04 grams or more per 100 milliliters of blood, or .05 grams or more per 100 milliliters of urine.
“Sec. 2056. Positive test results.
“(a) An individual found to have a positive drug or alcohol test shall be notified in writing of the result. The individual may then authorize that the stored sample be sent to another HHS-certified laboratory of the individual’s choice, at the individual’s expense, for confirmation testing.
“(b) A positive drug or alcohol test, a refusal to submit to a drug or alcohol test, tampering with a drug or alcohol test, or failure to sign required documents or otherwise cooperate with any part of the drug testing requirements shall result in termination of employment, withdrawal of a contingent job offer, termination of a volunteer agreement, or withdrawal of a contingent volunteer service agreement.
“(c) The results of a drug or alcohol test conducted pursuant to this title shall not be turned over to a law enforcement agency without the written consent of the employee, appointee, volunteer or a subpoena or court order.
“Sec. 2057. Coverage of private contractual providers.
“Private entities that contracts with the District government to provide contract employees to work in protection-sensitive positions shall establish mandatory drug and alcohol testing policies and procedures that are consistent with the requirements of this subchapter.
“Sec. 2058. Submission of positions subject to mandatory drug and alcohol testing.
“(a) Within 60 days after the effective date of this title, personnel authorities shall submit to the Mayor a list of the positions it has designated as subject to the drug and alcohol testing requirements of this title.
“(b) Within 60 days after the effective date of this title, the Chief Procurement Officer shall submit to the Mayor a list of positions in private entities that contract with the District government and are subject to drug and alcohol testing pursuant to this title.
“(c) Personnel authorities shall submit an updated list of the positions subject to the mandatory drug and alcohol testing of this title no later than December 1 of each year.
“(d) The Chief Procurement Officer shall submit to the Mayor each quarter an updated list of the positions in private entities that contract with the District government that are subject to the drug and alcohol testing of this title.
“Sec. 2059. Applicability.
“(a) If, as of the effective date of this act, a District government agency has its own statutory or regulatory drug and alcohol testing policies and procedures and those policies or procedures are stricter than the provisions of this title, this title shall supplement and not replace the agency’s policies and procedures.
“(b) The provisions of this title shall be in addition to, and shall not repeal, the provisions of section 2051 of the Omnibus Personnel Reform Amendment Act of 1998, effective June 10, 1998 (D.C. Law 12-124; D.C. Official Code § 1-620.11), sections 2021, 2022, 2023, 2024, and 2025 of the Department of Human Services and Commission on Mental Health Services Mandatory Employee Drug and Alcohol Testing and Department of Corrections Conforming Amendment Act of 1999, effective April 13, 1999 (D.C. Law 12- 227; D.C. Official Code §§ 1-620.21 through 1-620.25), sections 2031, 2032, 2033, 2034, 2035, 2036, and 2037 of the Child and Youth, Safety and Health Omnibus Amendment Act of 2004, effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code §§ 1-620.31 through 1-620.37), section 18 of the District of Columbia Housing Authority Act of 1999, effective May 9, 2000 (D.C. Law 13-105; D.C. Official Code § 6-217), sections 2, 3, 4, and 5 of the Department of Corrections Employee Mandatory Drug and Alcohol Testing of 1996, effective September 20, 1996 (D.C. Law 11-158; D.C. Official Code §§ 24-211.21 through 24-211.24), and Chapter 39 of Title 6B of the District of Columbia Municipal Regulations (6B DMCR § 3900 et seq.), entitled ‘Testing for the Presence of Controlled Substances and Alcohol.
“Sec. 2060. Rules.
Section 2(b) of D.C. Law 19-263 added D.C. Law 2-139, Title XX-F, to read as follows:
“(A) TITLE XX-F. Criminal Background Checks and Background Investigations for Protection-Sensitive Positions of 2012.
“(A) Sec. 2061. Definitions.
“(A) For the purposes of this title, the term:
“(1) ‘Applicant’ means a person who has filed a written or electronic employment application, or resumé, or a person seeking a volunteer appointment, with the District government for a position covered by the provisions of this title.
“(2) ‘Appointee’ means a person who has been made a contingent job offer to a position covered by the provisions of this title.
“(3) ‘Background investigation’ means a thorough inquiry into the past and present conduct and behavior of an applicant, appointee, employee, or volunteer to determine his or her suitability for employment.
“(4) ‘Covered employee’ means a District government employee occupying a protection-sensitive position.
“(5) ‘Criminal background check’ means the investigation of an individual’s criminal history through the record systems of the Federal Bureau of Investigation, the Metropolitan Police Department, or other law enforcement agencies.
“(6) ‘Employee’ means an individual who is employed on a full-time, part- time, or temporary basis by the District government.
“(7) ‘FBI’ means the Federal Bureau of Investigation.
“(8) ‘MPD’ means the Metropolitan Police Department.
“(9) ‘Personnel authority’ means an individual or entity authorized by section 406 to implement personnel rules and regulations for employees of an agency or group of agencies of the District government or persons delegated such authority by such an individual or entity.
“(10) ‘Protection-sensitive position’ means any District government employee, volunteer, or contractual worker in a position having a duty station at the Consolidated Forensic Sciences Laboratory.
“(11) ‘Suitability’ means the quality or state of being acceptable for District government employment with respect to the character, reputation, qualification, and fitness of the person under consideration.
“(12) ‘Supervised’ means under the direction of an individual who has received a current, satisfactory background clearance.
“(13) ‘Volunteer’ means an individual who performs a protection-sensitive function without monetary or other financial compensation.
“(14) ‘Vulnerable adult’ means an individual 18 years of age or older who has a physical or mental condition which impairs the individual’s ability from providing for the individual’s own care or protection.
“Sec. 2062. Criminal background checks required for certain individuals.
“(a) Except as set forth in subsection (b) of this section, the following individuals shall be subject to criminal background checks:
“(1) An appointee to, or an applicant for, a protection-sensitive position;
“(2) A volunteer who performs a protection-sensitive function; and
“(3) A District government employee occupying a protection-sensitive position.
“(b) An individual with proof of an active federal security clearance may be subject to a criminal background check under subsection (a) of this section.
“Sec. 2063. Authorization to obtain records and notification requirements.
“(a) For competitive recruitments, each vacancy announcement for a position subject to a criminal background check under this title shall include a statement that applicants shall be subject to a criminal background check and a background investigation upon initial appointment to the position and shall be subject to ongoing criminal background checks while employed in the position.
“(b) When a non-competitive recruitment procedure is involved, the Mayor or the personnel authority shall inform the appointee at the time the contingent job offer is made that the appointee shall be subject to a criminal background check before to employment in the covered position and shall be subject to ongoing criminal background checks while employed in the position.
“(c) Before a volunteer signs a volunteer agreement to perform protection-sensitive functions, the Mayor or the personnel authority shall notify the volunteer that a criminal background check shall be conducted before the volunteer begins his or her volunteer activities and shall be subject to ongoing criminal background checks while performing these functions.
“Sec. 2064. Procedures for criminal background checks.
“(a) In order to conduct a criminal background check on an applicant, appointee, volunteer, or covered employee, the Mayor or the personnel authority shall obtain criminal background records maintained by the FBI, MPD, and any jurisdiction in which the applicant, appointee, volunteer, or covered employee has resided or been employed or may otherwise have a criminal history.
“(b) An applicant, appointee, volunteer, or covered employee subject to a criminal background check shall allow himself or herself to be fingerprinted and shall submit any information necessary or useful to conduct the criminal background check as requested by the Mayor or the personnel authority. The fingerprints shall be available for use by the Mayor or the personnel authority to conduct a criminal background check.
“(c) The Mayor or the personnel authority shall conduct criminal background checks, including the fingerprinting of applicants, appointees, volunteers, and covered employees, in accordance with FBI policies and procedures and in an FBI-approved environment.
“(d) The Mayor or the personnel authority shall conduct a criminal background check once the applicant, appointee, covered employee, or volunteer has provided:
“(1) A complete set of qualified, legible fingerprints, in a form approved by the FBI;
“(2) Written confirmation that the applicant, appointee, covered employee, or volunteer has been informed by the Mayor or the personnel authority that they are authorized to conduct a criminal background check on the applicant, appointee, covered employee, or volunteer;
“(3) Written authorization for the Mayor or the personnel authority to conduct a criminal background check;
“(4) Any additional identification that is required, including the name, social security number, birth date, and gender of the applicant, appointee, covered employee or volunteer;
“(5) A signed affirmation stating whether or not the applicant, appointee, covered employee, or volunteer has been convicted of, entered a guilty plea, including a plea of nolo contendere to, or has been found not guilty by reason of insanity of any crime in the District of Columbia or in any other state or territory;
“(6) Written acknowledgment that the Mayor or the personnel authority has notified the applicant, appointee, covered employee, or volunteer of his or her right to obtain a copy of the criminal background check report and to challenge the accuracy and completeness of the report; and
“(7) Written acknowledgment that the Mayor or the personnel authority may choose to deny the applicant or appointee employment or a volunteer position, or terminate a covered employee or volunteer, based on the outcome of the criminal background check.
“(e) Fingerprinting for the purposes of this section may be conducted by any person authorized to do so by the Mayor or the FBI.
“Sec. 2065. Background investigations.
“(a) In addition to criminal background checks, the individuals listed in section 2062 may be subject to background investigations.
“(b) A background investigation pursuant to this title shall consist of:
“(1) A credit check of the applicant, appointee, covered employee, or volunteer that adheres to the notification and consent requirements of the Fair Credit Reporting Act, approved October 26, 1970 (Pub. L. 91-508; 15 USC § 1681), and any other applicable law or regulation, as appropriate;
“(2) A traffic record check, as appropriate; and
“(3) The acquisition and consideration of any other information allowed by law that assists in establishing the suitability for employment of an applicant, appointee, covered employee, or volunteer, including employment history checks and reference checks.
“(c) Any other information allowable by law that shall assist in establishing the suitability of an applicant, appointee, volunteer, or covered employee for employment or volunteer work with the District government.
“Sec. 2066. Assessment of information obtained from criminal background checks and background investigations.
“(a) The information obtained from a criminal background check or background investigation shall not create an automatic presumption against employment of an applicant, appointee, covered employee, or volunteer. The Mayor or the personnel authority shall determine whether the applicant, appointee, covered employee, or volunteer is unsuitable for employment because of his or her criminal history and background. In making this determination, the Mayor or the personnel authority shall consider the following factors:
“(1) The specific duties and responsibilities of the covered position;
“(2) The bearing, if any, the criminal offense or background information will have on the fitness or ability of the applicant, appointee, covered employee, or volunteer to perform one or more of such duties or responsibilities;
“(3) The time which has elapsed since the occurrence of the criminal offense or negative background information;
“(4) The age of the applicant, appointee, covered employee, or volunteer at the time of the occurrence of the criminal offense or negative background information;
“(5) The frequency and seriousness of the criminal offense or negative background information;
“(6) Any information provided on behalf of the applicant, appointee, covered employee, or volunteer or provided regarding his or her rehabilitation and good conduct since the occurrence of the criminal offense or negative background information; and
“(7) The public policy that it is beneficial generally for ex-offenders to obtain employment.
“(b) If the Mayor or the personnel authority determines that an applicant, appointee, volunteer, or covered employee shall not remain in his or her position because he or she has been determined unsuitable for employment because of the individual’s criminal history and background, the Mayor or the personnel authority shall inform the applicant, appointee, volunteer, or covered employee in writing.
“Sec. 2067. Appeals.
“(a) A covered employee who the Mayor or the personnel authority has determined shall not remain in his or her position because of being determined unsuitable for employment due to the covered employee’s criminal history or background investigation shall have the following appeal rights:
“(1) A covered employee in a position under the Career Service (non-probationary status), Excepted, Executive, Legal, Management Supervisory Service, or in a non-excluded Educational Service position who is not on probationary status may appeal the decision; or
“(2) A covered employee on probationary status or a volunteer may not appeal the decision.
“(b) The Mayor or the personnel authority shall issue rules setting forth the appeal process for an applicant, appointee, or covered employee who is determined unsuitable for employment because of his or her criminal history and background.
“Sec. 2068. Submission of positions subject to criminal background checks.
“(a) Within 60 days after the effective date of this subchapter, each personnel authority shall submit to the Mayor a list of the positions it has designated as subject to the criminal background check requirements of this subchapter.
“(b) Within 60 days after the effective date of this title, the Chief Procurement Officer shall submit to the Mayor a list of the positions in private entities that contract with the District government that shall be subject to criminal background checks pursuant to this title.
“(c) Personnel authorities shall submit to the Mayor an updated list of the positions subject to the background investigation requirements of this title no later than December 1 of each year.
“(d) The Chief Procurement Officer shall submit to the Mayor quarterly reports listing the positions in private entities that contract with the District government that are subject to the requirements of this title.
“Sec. 2069. Confidentiality of criminal history and background investigation information.
“All criminal history and background information records received by the Mayor or the personnel authority shall be confidential and are for the exclusive purpose of making employment-related determinations under this title. The criminal history and background information records shall not be released or otherwise disclosed to any person except when:
“(1) Required as a component of an application for employment for a position under this title;
“(2) Requested by the Mayor, or his or her designee, during an official inspection or investigation;
“(3) Ordered by a court of competent jurisdiction;
“(4) Authorized by the written consent of the person being investigated; or
“(5) Utilized for a corrective, adverse, or other administrative action in a personnel proceeding related to the position for which the investigation was conducted or any position to which the employee advanced from that position in the District government.
“Sec. 2070. Penalty for providing false information regarding criminal history or background investigations.
“(a) An applicant or appointee under this title who knowingly or through gross negligence provides false information that is material to the conduct of a criminal history check or background investigation shall be denied employment.
“(b) An employee under this title who knowingly or through gross negligence provides false information that is material to the conduct of a criminal history check or background investigation shall be terminated from employment.
“(c) A volunteer under this title who knowingly or through gross negligence provides false information that is material to the conduct of a criminal history check or background investigation shall be prohibited from performing volunteer services for the District government.
“Sec. 2071. Penalties for disclosing confidential criminal history or background investigation information.
“(a) An individual who knowingly discloses criminal history or background investigation information in violation of section 2069 is guilty of a criminal offense and, upon conviction, shall be fined no more than $1,000 or imprisoned for not more than 180 days, or both.
“(b) Prosecutions for violations of this title shall be brought in the Superior Court of the District of Columbia by the Office of the Attorney General for the District of Columbia.
“Sec. 2072. Coverage of private contractual entities.
“Private entities that contract with the District government to provide employees to work in protection-sensitive positions shall establish criminal history check and background investigation policies and procedures that are consistent with the requirements of this title.
“Sec. 2073. Applicability.
“(a) If, as of the effective date of this title, a District government agency has its own criminal history check or background investigation policies and procedures, and those existing policies or procedures are stricter than the provisions of this title, this title shall supplement and shall not replace the agency’s policies and procedures.
“(b) The provisions of this title shall be in addition to, and shall not repeal, the provisions of section 522 of the District of Columbia Health Occupations Revision Act of 1985, effective March 25, 1985 (D.C. Law 6-99; D.C. Official Code § 3-1205.22), the Criminal Background Checks for the Protection of Children Act of 2004, effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code § 4-1501.01 et seq.), the Health-Care Facility Unlicensed Personnel Criminal Background Check Act of 1998, effective April 20, 1999 (D.C. Law 12-238; D.C. Official Code § 44-551 et seq.), section 2 of the Department of Corrections Criminal Background Investigation Authorization Act of 1998, effective June 19, 1998 (D.C. Law 12-126; D.C. Official Code § 24-211.41), and Chapter 4 of Title 6B of the District of Columbia Municipal Regulations (6B DCMR § 4), entitled ‘Organization for Personnel Management.
“Sec. 2074. Rules.
“Within 120 days of the effective date of this title, the Mayor, pursuant to Title I of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.), shall issue rules to implement the provisions of this title.”
Section 4(b) of D.C. Law 19-263 provided that the act shall expire after 225 days of its having taken effect.
For temporary (225 days) addition of D.C. Law 2-139, Title XX-E, concerning mandatory controlled substance and alcohol testing for protection-sensitive positions, see § 2(a) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Temporary Amendment Act of 2013 (D.C. Law 20-77, February 22, 2014, 61 DCR 140).
For temporary (225 days) addition of D.C. Law 2-139, Title XX-F, concerning criminal background checks and background investigations for protection-sensitive positions, see § 2(b) of the Controlled Substance, Alcohol Testing, Criminal Background Check and Background Investigation Temporary Amendment Act of 2013 (D.C. Law 20-77, February 22, 2014, 61 DCR 140).