10 C.F.R. § 26.39

Review process for fitness-for-duty policy violations

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(a) Each licensee and other entity who is subject to this subpart shall establish procedures for the review of a determination that an individual who they employ or who has applied for authorization has violated the FFD policy. The review procedure must provide for an objective and impartial review of the facts related to the determination that the individual has violated the FFD policy.

(b) The review procedure must provide notice to the individual of the grounds for the determination that the individual has violated the FFD policy, and must provide an opportunity for the individual to respond and submit additional relevant information.

(c) The review procedure must ensure that the individual who conducts the review is not associated with the administration of the FFD program [see the description of FFD program personnel in § 26.4(g)]. Individuals who conduct the review may be management personnel.

(d) If the review finds in favor of the individual, the licensee or other entity shall update the relevant records to reflect the outcome of the review and delete or correct all information the review found to be inaccurate.

(e) When a C/V is administering an FFD program on which licensees and other entities rely, and the C/V determines that its employee, subcontractor, or applicant has violated its FFD policy, the C/V shall ensure that the review procedure required in this section is provided to the individual. Licensees and other entities who rely on a C/V's FFD program need not provide the review procedure required in this section to a C/V's employee, subcontractor, or applicant when the C/V is administering its own FFD program and the FFD policy violation was determined under the C/V's program.

[75 FR 73941, Nov. 30, 2010]

Notes of Decisions

Cited in 2 cases, 2015–2017 · leading case: Daryle McNelis v. Pennsylvania Power & Light Co, 867 F.3d 411 (3rd Cir. 2017).

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Daryle McNelis v. Pennsylvania Power & Light Co, 867 F.3d 411 (3rd Cir. 2017). “56 (7); 10 C.F.R, § 26.39. McNelis received through the administrative process an “impartial and independent internal management review” and was given “an opportunity to provide additional relevant information and an opportunity for an objective review of the information upon…”

Exelon Generation Co. v. Local 15, Int'l Bhd. of Elec. Workers, AFL-CIO, 140 F. Supp. 3d 751 (N.D. Ill. 2015). “Section 26 has a similar provision for independent review when employees are found to have violated an FFD policy, see 10 C.F.R. § 26.39 , but it also contains the, limiting provision that forbids a party from seeking a second determination of fitness or seeking a determination…”

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