# COMAR Title 21 — State Procurement Regulations

## Subtitle 11 — Socioeconomic Policies

### Chapter 08 — Drug and Alcohol Free Workplace

**Authority:** State Finance and Procurement Article, §§11-201 and 12-101, Annotated Code of Maryland

**Administrative History:** Effective date: October 1, 1990 (17:19 Md. R. 2322)

#### Regulation .01 Policy.

*COMAR 21.11.08.01*

A. Drug and alcohol abuse in the workplace leads to a decrease in productivity, economy, and the maximum benefit to be derived from the purchasing power of the State, thereby decreasing and undermining public confidence in the State procurement system.

B. The State has an interest in assuring the public that recipients of funds under State procurement contracts are not using these monies to maintain or foster, directly or indirectly, workplaces where drug or alcohol abuse occurs.

C. The State is committed to encouraging all non-State entities that do business with the State to make a good faith effort to eliminate unlawful drug use and drug and alcohol abuse from their workplaces.

#### Regulation .02 Definitions.

*COMAR 21.11.08.02*

A. In this chapter, the following words have the meanings indicated.

B. Terms Defined.

  (1) “Abuse” means the use of:

    (a) Alcohol when it may impair job performance or endanger the safety of others in the workplace;

    (b) Any illegal drug;

    (c) Any over-the-counter drug when the user knows or should know that it may impair job performance or endanger the safety of others in the workplace; or

    (d) Any prescription drug in a manner or under circumstances that the user knows or should know is inconsistent with its medically prescribed, intended use.

  (2) “Alcohol” means ethyl alcohol or ethanol.

  (3) “Conviction” means:

    (a) A judgment of conviction, whether entered upon a finding of guilty or acceptance of a plea of guilty or nolo contendere, and the imposition of sentence; or

    (b) The staying of a judgment of conviction and the placing of a defendant on probation after a finding of guilty or the acceptance of a plea of guilty or nolo contendere.

  (4) “Drug” means:

    (a) A controlled dangerous substance as defined in Criminal Law Article, §5-101, Annotated Code of Maryland; and

    (b) Any substance, other than alcohol, caffeine, food, or tobacco, that when taken into the body, may impair one's mental faculties or change one's mood or physical performance.

  (5) “Drug and alcohol free workplace” means a workplace in compliance with Regulation .03A of this chapter, and in which each employee is expressly prohibited from:

    (a) Abusing alcohol and drugs; and

    (b) Unlawfully manufacturing, distributing, dispensing, possessing, or using drugs.

  (6) “Employee” means each officer, employee, agent, or servant of the recipient who, directly or indirectly, participates in the performance of a procurement contract. “Employee” includes an owner who, directly or indirectly, participates in the performance of a procurement contract.

  (7) “Individual” means a bidder, offeror, or contractor having not more than one employee, including the bidder, offeror, or contractor.

  (8) “Recipient” means an individual, a sole proprietorship, a partnership, a corporation, a joint venture, or any other entity that submits a bid or proposal for, or has been awarded, a procurement contract.

  (9) “Under the influence of” means the use of drugs or alcohol in a manner that may impair job performance or endanger the safety of others in the workplace.

  (10) “Workplace” means any place at which work is performed in accordance with the terms of a procurement contract.

#### Regulation .03 Responsibility Determination.

*COMAR 21.11.08.03*

A. A bidder or offeror, other than an individual, may not be considered a responsible source for a procurement contract unless the bidder or offeror has certified, pursuant to COMAR 21.05.08.07B, that the bidder or offeror will provide a drug and alcohol free workplace by:

  (1) Maintaining a workplace free of drug and alcohol abuse during the term of the contract;

  (2) Publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of drugs, and the abuse of drugs or alcohol is prohibited in the contractor's workplace, and specifying the actions that will be taken against employees for violation of these prohibitions;

  (3) Prohibiting its employees from working under the influence of drugs or alcohol;

  (4) Refusing to hire or assign to work on the contract anyone whom the contractor knows, or in the exercise of due diligence should know, currently abuses drugs or alcohol and is not actively engaged in a bona fide drug or alcohol abuse assistance or rehabilitation program;

  (5) Promptly informing the appropriate law enforcement agency of each drug-related crime that occurs in its workplace, if the contractor has observed the violation or otherwise has reliable information that a violation has occurred;

  (6) Establishing drug and alcohol abuse awareness programs to inform its employees about:

    (a) The dangers of drug and alcohol abuse in the workplace,

    (b) The contractor's policy of maintaining a drug and alcohol free workplace,

    (c) Any available drug or alcohol counseling, rehabilitation, and employee assistance programs, and

    (d) The penalties that may be imposed upon employees who abuse drugs and alcohol in the workplace;

  (7) Providing all employees engaged in the performance of a procurement contract with a copy of the statement required by §A(2), above;

  (8) Notifying employees in the statement required by §A(2), above, that as a condition of continued employment on the procurement contract, the employee shall:

    (a) Abide by the terms of the statement, and

    (b) Notify the employer of any criminal drug or alcohol abuse conviction for an offense occurring in the workplace not later than 5 days after a conviction;

  (9) Notifying the procurement officer within 10 days after receiving notice under §A(8)(b), above, or otherwise receiving actual notice of a conviction;

  (10) Within 30 days after receiving notice under §A(8)(b), above, or otherwise receiving actual notice of a conviction, imposing one or more of the following sanctions or remedial measures on any employee who is convicted of a drug or alcohol abuse offense occurring in the workplace:

    (a) Taking appropriate personnel action against an employee, up to and including termination, or

    (b) Requiring an employee to satisfactorily participate in a bona fide drug or alcohol abuse assistance or rehabilitation program; and

  (11) Making a good faith effort to maintain a drug and alcohol free workplace through implementation of §A(1)—(10), above.

B. An individual may not be considered a responsible bidder or offeror for a procurement contract unless that individual certifies, pursuant to COMAR 21.05.08.07B, that the individual will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of drugs or the abuse of drugs or alcohol in the performance of the procurement contract.

#### Regulation .04 Disqualification.

*COMAR 21.11.08.04*

Failure of a bidder or offeror to provide the certification required by Regulation . 03 shall render the bidder or offeror unqualified and ineligible for contract award.

#### Regulation .05 Remedies.

*COMAR 21.11.08.05*

A. Suspension of Contract Payments. After making a determination that adequate evidence to suspect any of the causes in §D, below, exists, the procurement officer, with the approval of the agency head, the appropriate control agency, and the Office of the Attorney General, may suspend payments under the procurement contract.

B. Contract Termination. After making a determination that any of the causes in §D, below, exists, the procurement officer, with the approval of the agency head, the appropriate control agency, and the Office of the Attorney General, may terminate the procurement contract for default under COMAR 21.07.01.11 or 21.07.03.15, as applicable.

C. Suspension and Debarment. Upon initiating action under §A or B, above, the agency head, through the appropriate control agency, shall refer the matter to the Board for suspension and debarment under COMAR 21.08.06.

D. The specific causes for suspension of contract payments, termination of a contract for default, or suspension and debarment are the:

  (1) Contractor has submitted a false certification in response to a provision regarding a drug and alcohol free workplace under COMAR 21.05.08.07B or 21.07.01.25;

  (2) Contractor has failed to comply with its certification under COMAR 21.05.08.07B or 21.07.01.25; or

  (3) Contractor has failed to make a good faith effort to provide a drug and alcohol free workplace, as evidenced by recurring convictions of the contractor's employees for drug and alcohol offenses occurring in the workplace.

E. A determination under this regulation to suspend contract payments, terminate a contract for default, or refer the matter to the Board for suspension and debarment may be waived by the agency head with the approval of the appropriate control agency and the Office of the Attorney General for a particular contract only if and so long as the waiver is necessary to prevent a severe disruption of the agency's operations or services to the detriment of the State or the public.

#### Regulation .06 Implementation and Enforcement.

*COMAR 21.11.08.06*

A. A procurement agency shall be responsible for the implementation of these regulations.

B. The control agencies shall be responsible for the enforcement of these regulations.