409 POSITIONS SUBJECT TO ENHANCED SUITABILITY SCREENING

409.1 The types of positions that are subject to enhanced suitability screenings for appointees, volunteers, and employees are positions with duties and responsibilities that shall be categorized as follows:

1. (a) Safety sensitive, which are positions in which it is reasonably foreseeable that, if the employee performs the position's routine duties while under the influence of drugs or alcohol, the employee could suffer a lapse of attention or other temporary deficit that would likely cause actual, immediate and serious bodily injury or loss of life to self or others;
2. (b) Protection sensitive, which are positions that are not safety sensitive positions, but that include duties or responsibilities that involve caring for patients or other vulnerable persons; and
3. (c) Security sensitive, which are positions of special trust that may reasonably be expected to affect the access to or control of activities, systems, or resources that are subject to misappropriation, malicious mischief, damage, or loss or impairment of communications or control.

409.2 Each agency head (or his or her designee), with the concurrence of the program administrator, shall determine and designate which positions in the agency are subject to enhanced suitability screenings.

1. (a) The agency head (or his or her designee) shall establish a roster of the designated positions, which shall be approved by the agency's head of human resources, general counsel, and director.
2. (b) No later than September 30 of each year, agencies shall provide the roster of designated position to the program administrator for final approval.
3. (c) The designation of a position as safety, protection, or security sensitive is not subject to the grievance procedures outlined in Chapter 16. However, an impacted employee may appeal such a designation pursuant to § 409.4.
4. (d) An agency shall not automatically designate every position in the agency as safety, protection, or security sensitive. The agency must consider individually each position according to the relevant factors.
5. (e) Each agency shall annually review position sensitivity designations to ensure that they are consistent with the position's actual duties and responsibilities.

409.3 An employee who is detailed, temporarily promoted, or temporarily reassigned from a non-covered position to a covered position shall affirmatively agree to an enhanced suitability screening upon the effective date of the personnel action, and to periodic criminal background and traffic record checks, as appropriate, while detailed, temporarily promoted, or temporarily reassigned to the covered position.

409.4 An employee may petition the program administrator to review the designation of his or her position as safety, protection, or security sensitive.

(a) Petitions must be submitted electronically to the program administrator at https://forms.office.com/g/vaz7tyfY8d.

(b) Petitions must be filed no later than forty-five (45) business days after:

(1) An existing position becomes newly designated as protection, safety, or security sensitive; or

(2) A significant change in circumstances occurs that warrants reconsideration of the position's designation, such as when an employee becomes a qualifying patient.

(c) Safety sensitive employees may not seek review of their designation:

(1) Solely because the employee failed a job-related drug test or because the employee is facing an adverse action related to the employee's failure to pass a job-related drug test; or

(2) When the position is subject to random drug testing pursuant to federal law or as a condition of federal funding.

(d) The program administrator shall review the employee's petition, and any response from the agency, and shall issue a written determination granting or denying the employee's petition within thirty (30) calendar days after receiving the employee's petition.

(1) The program administrator's written determination shall state the reasons for granting or denying the petition.

(2) If the administrator grants the petition, he or she shall redesignate the position in consultation with the employing agency.

(3) If the administrator denies a petition relating to a protection or security sensitive designation, the determination shall be final and not subject to further review.

(4) If the administrator denies a petition relating to a safety sensitive designation, the determination shall notify the employee of their right to appeal the denial to the Office of Employee Appeals pursuant to Chapter 6.

409.5 An employee occupying a safety sensitive position may request that their agency provide a written explanation of the reasons and factors justifying their safety sensitive designation.

(a) The agency shall provide the written explanation to the requesting employee within ten (10) business days after receiving the request.

(b) The written explanation shall include a description of the specific routine job duties and circumstances that merit a safety sensitive designation as described in § 409.1(a).

(c) The written explanation may be satisfied by providing the requesting employee with a position description that contains the information required under paragraph (b).

SOURCE: Final Rulemaking published at 62 DCR 13820 (October 23, 2015); as amended by Final Rulemaking 65 DCR 12445 (November 9, 2018); as amended by Final Rulemaking published at 67 DCR 10946 (September 11, 2020); as amended by Final Rulemaking published at 69 DCR 010387 (August 12, 2022); as amended by Final Rulemaking published at 69 DCR 014273 (November 18, 2022).