WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
EXECUTIVE ORDER
01.01.2023.16
(Rescinds Executive Order
O
1.01.1991.16)
State of Maryland Workplace Substance Abuse
Policy
The Drug-Free Workplace Act of 1988 requires that any State that
receives federal funds must establish a drug-free workplace, including a
policy on the use of substances, employee drug awareness program, and
procedures for employees to report their own convictions.
The State of Maryland is committed to making good faith efforts to ensure
a safe, secure, and substance-free workplace for its employees consistent
with the Drug-Free Workplace Act of 1988.
Substance abuse is a serious public health crisis that has had a detrimental
effect on the lives of many Maryland residents and negative impacts on
businesses and government.
Every Maryland employer, including the State of Maryland, experiences
a loss in productivity due to substance abuse-related absenteeism, injuries
on the job, and decreased work quality.
In higher risk occupations, employees with substance use problems may
function below established standards, make impaired decisions, be less
alert, and have harmful or dangerous effects on their co-workers or the
public.
Voters in Maryland approved the legalization of adult-use cannabis
through constitutional amendment and the General Assembly enacted
legislation to enable this legalization.
Within the context of the legalization of adult-use cannabis, the State of
Maryland reinforces its commitment to protect the health, safety, and
welfare of its employees and the public, and ensure a substance-free work
environment.
NOW, THEREFORE,
I, WES MOORE, GOVERNOR OF THE STATE OF MARYLAND, BY
VIRTUE
OF
THE
AUTHORITY
VESTED
IN
ME
BY
THE
2
CONSTITUTION AND LAWS OF MARYLAND, HEREBY RESCIND
EXECUTIVE ORDER 01.01.1991.16 AND PROCLAIM THE
FOLLOWING EXECUTIVE ORDER, EFFECTIVE IMMEDIATELY:
A.
Scope.
This policy applies to all individuals employed by the
Executive Branch of the Maryland State Government.
B.
Definitions.
The following words have the meanings indicated:
I.
"Alcohol" means any form of ethanol, or any beverage or substance
containing ethanol.
2.
"Alcohol-Related Offense" means a crime that requires alcohol
possession or consumption as an element of the offense.
3.
"Cannabis" means the plant Cannabis Sativa L. and any part of the
plant, including all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or not, with a
delta-9-tetrahydrocannabinol concentration greater than 0.3% on a
dry weight basis. Cannabis includes cannabis products but does not
include hemp or hemp products as defined by § 14-101 of the
Agriculture Article.
4.
"Cannabis-Related Offense" means any crime that involves the
use, sale, possession, distribution, dispensation, manufacture, or
transfer of cannabis under Md. Code Ann., Crim. Law§§ 5-101
through 5-1101, excluding civil use offenses set forth in Crim. Law
5-60 l (c)(2)(ii).
5.
"Controlled Dangerous Substance" means any substance, excluding
cannabis, that is controlled under the Federal Controlled Substances
Act, 21 U.S.C. § 801, et seq., as amended, and/or the Maryland
Controlled Dangerous Substances Act, Md. Code Ann., Crim. Law
§§ 5-101 through 5-1101.
6.
"Controlled Dangerous Substance Offense" means:
a.
A controlled dangerous substance violation, under Md. Code
Ann., Crim. Law §§ 5-10 l through 5-1101.
b.
An offense of the law of any other jurisdiction if the
prohibited conduct would be a controlled dangerous
substance violation if committed in this State;
c.
Driving or attempting to drive while under the influence of
a controlled dangerous substance under Md. Code Ann.,
Transp. § 21-902; or
3
d.
Operating or attempting to operate a vessel while impaired
by a controlled dangerous substance under Md. Code Ann.,
Nat. Res. § 8-738.
7.
"Conviction"
means:
a.
A judgment of conviction, whether entered upon a finding of
guilt or acceptance of a guilty plea or plea of nolo
contendere, and the imposition of sentence; or
b.
The staying of the entry of judgment and the placing of the
defendant on probation after a finding of guilty or the
acceptance of a plea of nolo contendere.
8.
"Drug" means any controlled dangerous substance, non-prescription
drug, or prescription drug, taken into the body, which may impair
one's mental faculties and/or change one's mood and/or physical
performance.
9.
"Drug-Related Offenses" means:
a.
Crimes listed under the Maryland Controlled Dangerous
Substances Act, Md. Code Ann., Crim. Law
§
§ 5-101
through 5-110 I.
b.
Driving or attempting to drive while under the influence of
drugs or drugs and alcohol under Md. Code Ann., Transp. §
21-902.
c.
Operating or attempting to operate a vessel while under the
influence of drugs or drugs and alcohol under Md. Code
Ann., Nat. Res. § 8-738.
10.
"Employee" means:
a.
A merit-protected (classified), at will (unclassified),
contractual, key employee, or other employee or official in
the Executive Branch;
b.
A volunteer who provides a service to or for a unit in the
Executive Branch; or
c.
A member of a Board or Commission in the Executive
Branch.
11.
"Impaired" means reduced cognitive or physical ability that results
from use of drugs, alcohol, cannabis, or controlled dangerous
substances.
4
12.
"Intoxicating Cannabinoid" means a product intended for human
consumption or inhalation that contains more than 0.5 milligrams of
tetrahydrocannabinol per serving.
13.
"Medical Cannabis" means all parts of any plant of the genus
cannabis, whether growing or not, including:
a.
The seeds of the plant;
b.
The resin extracted from any part of the plant; and
c.
Any compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds, or resin including
tetrahydrocannabinol and all other naturally produced
cannabinoid derivatives, whether produced directly or
indirectly by extraction.
d.
Medical cannabis does not include:
i.
Hemp, as defined in Md. Code Ann., Agric. § 14-
101;
ii.
Mature stalks of the plant or fiber produced from the
mature stalks;
111.
Oil or cake made from the seeds of the plant;
1v. Any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks, fiber,
oil, or cake; or
v. The sterilized seed of the plant that is incapable of
germination.
14.
"Non-Prescription Drug" means any over-the-counter drug that is
available without a written prescription by an authorized medical
professional.
15.
"Prescription Drug" means a drug that may be dispensed only on the
prescription of a health practitioner who is authorized by law to
prescribe the drug.
16.
"Safety-Sensitive Employee" means an employee who operates
heavy machinery and includes, but are not limited to, an operator of
a crane, winch, or top loader and a driver of hustler or forklift.
17.
"Sensitive Employee" means an employee whose classification or
position has been designated sensitive by the Secretary of Budget
5
and Management or the Secretary's designated representative, or the
employee's appointing authority.
18.
"Sensitive Classification" means a classification in which the
Secretary of Budget and Management or the Secretary's designated
representative has determined that any of the following conditions
exists:
a.
An employee in the classification has a substantially
significant degree of responsibility for the safety of others
and there is a potential that impaired performance of the
employee could result in death of or injury to the employee
or others;
b.
An employee m the classification is required to carry a
firearm;
c.
An employee in the classification is directly involved in
efforts to interdict the flow of narcotics; or
d.
An employee in the classification is directly involved with
narcotics law enforcement.
19.
"Sensitive Position" means a position for which an appointing
authority has determined that any of the conditions listed in Section
8(17)
of this executive order exists, but which is not in a sensitive
classification.
20.
"Substance" means alcohol, drugs, or cannabis.
21.
"Substance Abuse" means:
a.
The use of an illegal drug;
b.
The intentional misuse of any legal drug that results in
workplace impairment and/or impaired job performance;
c.
The intentional use of any prescription drug in a manner
inconsistent with its medically prescribed, intended use, or
under circumstances where its use is not permitted;
d.
The use of alcohol where such use results in workplace
impairment and/or impairs job performance;
e.
The use of cannabis where such use results in workplace
impairment and/or impairs job performance; or
6
f.
The intentional and inappropriate use of any substance, legal
or illegal, which impairs job performance.
22.
"Workplace" means any place where an employee is performing
work for the State of Maryland.
23.
"Work Time" means time during which an employee:
a.
Is on duty, whether at the employee's principal work site or
at a remote location as part of the State's telecommuting
program;
b.
Participates in training activities as a job assignment;
c.
Is on the employer's premises and is on call and waiting for
work;
d.
Is not on the employer's premises, but is on call and waiting
for work, and the employee's personal activities are
substantially restricted;
e.
Is changing into and removing program-specified clothing
and equipment necessary for the performance of the job;
f.
Participates in activities that are job-related immediately
before the beginning or immediately after the end of an
assigned shift;
g.
Travels to and from work after being recalled to work by the
appointing authority or the appointing authority's designated
representative after the employee has completed the standard
workday;
h.
Travels to and from work after being called to work by the
appointing authority or the appointing authority's designated
representative on the employee's scheduled day off if the
employee works fewer than 8 hours as a result of being
called on the employee's scheduled day off;
1.
Travels between home and a work site other than the
assigned office, in accordance with the Standard Travel
Regulations,
J. Work time includes any other time defined as work time
under the Fair Labor Standards Act, 29 U.S.C. §201 et seq.,
if applicable.
7
C.
General Policy.
The State of Maryland establishes the following
Substance Abuse Policy for the Executive Branch of State Government:
I.
All employees in the workplace must be capable of performing their
duties. An employee shall not report to work, or spend any work
time, in an unfit condition to perform their duties.
2.
Substance abuse by any employee is prohibited at all times.
3.
Employees experiencing substance use problems are encouraged to
seek assistance through:
a.
Their employer;
b.
Referral to the Employee Assistance Program ("EAP");
c.
Self-referral to the MyMDCares program or similar state-
sponsored assistance program; or
d.
Self-referral
to
an
alternative
certified
rehabilitation
program.
D.
Alcohol & Cannabis Abuse Policy
I.
Alcohol & Cannabjs.
An employee shall not report to work, or
spend any work time, under the influence of alcohol, cannabis, or
intoxicating cannabinoids. Any employee who reports to work, or
spends any work time, with their mental or physical abilities
impaired by alcohol or cannabis, is in violation of this policy and
shall be subject to disciplinary action.
2.
Employees may not consume alcohol or consume, smoke, or
otherwise ingest cannabis or intoxicating cannabinoid on State
property, at any worksite, or during work hours or while on work
time. This conduct is also prohibited for employees on official
business, whether on or off State Property.
3.
The unlawful manufacture, distribution, dispensation, possession,
or use of cannabis or intoxicating cannabinoids is prohibited on
State property, at any worksite, or during work hours or while on
work time.
4.
Employees are prohibited from consuming alcohol and/or cannabis
and/or being under the influence of alcohol, cannabis, or an
intoxicating cannabinoid while operating State equipment, vehicles,
or other property.
8
5.
Employees are prohibited from committing alcohol or cannabis-
related offenses or offenses relating to intoxicating cannabinoids.
6.
Employees who plead guilty, accept a plea of nolo contendere,
receive a probation before judgment, or are convicted of an alcohol
or cannabis-related offense or an offense relating to intoxicating
cannabinoids are in violation of this policy and must report the
disposition of the case to their supervisor and/or appointing
authority no later than five (5) workdays after the disposition.
7.
Medical Cannabis.
Employees who are registered and certified
medical cannabis patients may not possess, consume, smoke, or
otherwise ingest cannabis on State property, at any worksite or
during work time.
8.
Employees who are registered and certified medical cannabis
patients are responsible for consulting the certifying provider to
ascertain whether the medical cannabis will interfere with the safe
performance of their job duties.
9.
If the use of any medical cannabis could compromise an employee's
performance or the safety of the employee, fellow employees, or the
public, it is the employee's responsibility to notify their supervisor
and/or appointing authority and use appropriate leave to avoid
unsafe work practices.
E.
Drug Abuse Policy
I.
Prescription & Over-The-Counter Drugs.
Prescription and over-
the-counter drugs must be taken in standard dosage and/or according
to a physician's prescription.
2.
Employees who take prescribed or over-the-counter medications are
responsible for consulting the prescribing physician and/or
pharmacist to ascertain whether the medication will interfere with
the safe performance of their job duties.
3.
If the use of any prescription or over-the counter drug could
compromise an employee's performance or the safety of the
employee, fellow employees, or the public, it is the employee's
responsibility to notify their supervisor and/or appointing authority
and use appropriate leave to avoid unsafe work practices.
4.
An employee shall not report to work, or spend any work time, under
the inappropriate influence of prescription or over-the-counter
drugs. Any employee who reports to work, or spends any work time,
with their mental or physical abilities inappropriately impaired by
9
prescription or over-the-counter drugs is in violation of this policy
and shall be subject to disciplinary action.
5.
Controlled Dangerous Substances.
Any employee who reports
to work, or spends any work time, with their mental or physical
abilities impaired by a controlled dangerous substance is in violation
of this policy and shall be subject to disciplinary action.
6.
The unlawful manufacture, distribution, dispensation, possession, or
use of controlled dangerous substances is prohibited on State
property, at any worksite, or during work hours or while on work
time.
7.
Employees are prohibited from committing controlled dangerous
substance offenses.
8.
Employees who plead guilty, accept a plea of nolo contendere,
receive a probation before judgment, or are convicted of a controlled
dangerous substance offense, are in violation of this policy and must
report the disposition of the case to their supervisor and/or
appointing authority no later than five (5) workdays after the
disposition.
9.
General Drug Abuse Policies.
Employees are prohibited from
committing drug-related offenses.
10.
Employees who plead guilty, accept a plea of nolo contendere,
receive a probation before judgment, or are convicted of a drug-
related offense, are in violation of this policy and must report the
disposition of the case to their supervisor and/or appointing
authority no later than five (5) workdays after the disposition.
F.
General Sanctions.
Any employee in violation of this Executive
Order shall be subject to appropriate progressive disciplinary action up to
and including termination.
G. Specific Sanctions.
I.
A sensitive or safety-sensitive employee shall be suspended for
fifteen (15) days and required to successfully participate in an
alcohol or cannabis treatment program designated by an EAP the
first time the employee is:
a.
Convicted of an at-the-workplace alcohol or cannabis-
related offense; or
b.
Found under the influence of alcohol or cannabis while at-
the-workplace.
2.
A sensitive or safety-sensitive employee convicted of an out-of-
workplace alcohol or cannabis-related offense, and a non-sensitive
or safety-sensitive employee convicted of any alcohol or cannabis-
related offense shall:
a.
On the first conviction be referred to an EAP and subject to
any other appropriate disciplinary actions;
b.
On the second conviction, at a minimum, be suspended for
at least five (5) days, be referred to an EAP, be required to
participate successfully in a treatment program, and be
subject to any other appropriate disciplinary actions, up to
and including termination;
c.
On the third conviction, be terminated.
3.
A sensitive or safety-sensitive employee convicted of any controlled
dangerous substance offense shall be terminated.
4.
A sensitive or safety-sensitive employee who tests positive for a
controlled dangerous substance as a result of a random drug test
shall be suspended for fifteen (15) workdays and be required to
successfully participate in a drug treatment program designated by
an EAP, as provided for by the appointing authority's drug testing
protocol.
5.
A sensitive or safety-sensitive employee who abuses a legally
prescribed drug or an over-the-counter drug shall, on the first
offense:
a.
Be suspended for five (5) workdays; and
b.
Be required to participate successfully in a drug treatment
program designated by an EAP.
H. Assistance & Treatment
I.
An employee may request referral to the EAP for access to
confidential professional assistance for substance use problems or
may self-refer to the MyMDCares program or similar state-
sponsored assistance program to receive confidential professional
assistance.
2.
Employees will not be terminated solely for requesting referral to
the EAP or voluntarily obtaining other assistance and/or treatment
for a substance use problem. The State of Maryland encourages any
employee who needs such assistance and treatment to seek and
obtain it. However, participation in a treatment or recovery program
11
will neither relieve employees from the requirement of satisfactory
job performance, nor insulate them from termination or adverse
personnel actions for failing to comply with any of the State's
policies and procedures.
3.
Substance abuse-related disciplinary actions, up to and including
termination, may be, but do not have to be, held in abeyance pending
an employee's completion of an assistance and treatment program.
The option of holding a disciplinary action in abeyance is not an
employee entitlement or right but is a privilege to be granted at the
discretion of the appointing authority, in consultation with the
Department of Budget and Management, or the individual
responsible for Human Resources for the respective State agency
under appropriate circumstances.
I.
Implementation.
I.
The Secretary of Budget & Management and the head of every other
personnel system in the Executive Branch shall adopt such policies
and regulations as are necessary or desirable for the implementation
of this Executive Order.
2.
All appointing authorities and supervisory employees are
responsible for implementing, enforcing, and monitoring
compliance with the requirements of this Executive Order.
3.
All employees are required to acknowledge receipt of a copy of this
Executive Order by returning an acknowledgement of receipt to
their supervisor for insertion in their personnel file.
J. Enforcement
1.
If a supervisor or appointing authority observes any signs of possible
substance abuse in any employee during working hours, this shall
constitute reasonable grounds for an investigation.
2.
If a non-supervisory employee observes any signs of possible
substance abuse in any employee during working hours and reports
it to a supervisor or appointing authority, this shall constitute
reasonable grounds for an investigation.
3.
A supervisor and/or appointing authority, on observing such signs
or receiving a report, in consultation with the Department of Budget
and Management, or the individual responsible for Human
Resources for the respective State agency, should investigate by
appropriate measures.
12
4.
If the supervisory investigation supports a conclusion of substance
abuse by the investigated employee(s), the supervisor and/or
appointing authority shall consult the Department of Budget and
Management, the individual responsible for Human Resources for
the respective State agency, or the State Medical Director to
determine the appropriate next steps, which may include testing.
5.
When an appointing authority learns or based on observation or
reliable information, suspects that an employee has committed an
alcohol-related offense, cannabis-related offense, controlled
dangerous substance offense, or other drug-related offense, the
appointing authority shall refer the matter to the appropriate law
enforcement authority for further investigation and prosecution.
6.
All employees shall cooperate fully with law enforcement
authorities in the investigation and prosecution of suspected
criminal violations.
K.
Employee Education.
All appointing authorities shall educate
and inform their employees about:
1.
The dangers of drug and alcohol abuse in the workplace;
2.
The State of Maryland's policy of maintaining a drug-free
workplace;
3.
Any drug and alcohol abuse counseling, rehabilitation, and EAP that
is available; and
4.
The penalties that may be imposed upon employees for violations of
this Executive Order.
L.
This policy does not constitute or create an express or implied
contract. It is not intended to, and does not, create contractual obligations
with respect to any matter it covers.
M.
This Executive Order shall be implemented in a manner that is
consistent with all applicable statutes and regulations. Nothing in this
Executive Order shall operate to contravene any State or federal law or to
affect the State's receipt of federal funding.
N.
If a State entity is subject to a federal law or regulation that conflicts
with this Executive Order, the federal law or regulation shall take
precedence.
0.
If any provision of this Executive Order or its application to any
person, entity, or circumstance is held invalid by any court of competent
jurisdiction, all other provisions or applications of the Executive Order
13
shall remain in effect to the extent possible without the invalid provision
or application. To achieve this purpose, the provisions of this Executive
Order are severable.
GIVEN Under My Hand and the Great Seal of the State of
Maryland, in
he City of Annapolis, this 8
th
Day of November 2023.
Governor
ATTEST:
Susan C. Lee
Secretary of State
