United States Nuclear Regulatory Commission - Protecting People and the Environment

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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Page Last Reviewed/Updated Wednesday, October 29, 2014