If you are a person who performs flight crewmember duties under part 121, did you know that you could potentially receive a FAA emergency revocation for refusal of a DOT drug test? In that, employees who perform safety-sensitive functions for airlines and other companies certificated under part 121 are required to submit to random drug testing pursuant to their company’s anti-drug program. Most employees have completed these types of drug tests numerous times, whether it was for pre-employment screening or as a part of an airline’s random drug testing program, to the point where drug tests have become familiar process for employment with an airline. Did you know, however, that if you refuse a DOT drug test, the FAA could potentially issue an Emergency Order of Revocation and revoke not only your FAA airman medical certificate, but also your FAA airman certificates (including type ratings and add-ons)?
It is important, especially for airline pilots and those pilots employed by a part 121 company, to understand what the FAA considers a refusal to a drug test. Specifically, 49 C.F.R. 40.191 speaks to drug test refusal and states that an employee will have refused a drug test if (to name a few): 1) failure to appear for a test within a reasonable period of time; 2) failure to remain at the testing sight until the testing process is completed; 3) failure to provide a urine sample; 4) failure to allow observation of collection, in the event observation is required; 5) failure to provide a sufficient amount of specimen without a subsequent, adequate medical explanation for failure; and 6) outright failure or declining to take a required drug test. If you are subject to DOT drug tests, make sure you review the entire list of refusals under 49 C.F.R. 40.191.
It is important to note that simple things such as leaving the testing site or otherwise failing to go provide a specimen within a reasonable period of time can be deemed by the FAA and your company as a refusal. So what? You can just take the test again, right? Well, the answer to that question is likely, “no.” Under 14 C.F.R. §67.107(b)(2) and the corresponding regulations to second and third class medicals state that “a refusal by the holder of a certificate issued under 14 C.F.R. part 67 to submit to a drug or alcohol test required under 14 C.F.R. part 120 is a specifically disqualifying medical condition under the medical standards in 14 C.F.R. part 67.” Beyond that, under 14 C.F.R. §120.11, a refusal by the holder of a certificate issued under 14 C.F.R. part 61 to submit to a drug or alcohol test required under 14 C.F.R. part 120 is grounds for revocation of any certificate or rating issued under 14 C.F.R. part 61. As such, the regulatory scheme does not allow for “second chances.” If you refuse, then you have refused.
Nevertheless, it is important to remember that if you find yourself in a situation whereas the FAA is revoking your airman and medical certificates as a result of your employer or collecting agent deeming your sample a refusal, that you may very well have a good defense. National Transportation Safety Board case law has determined that emergency revocation orders based on drug test refusals are heavily dependent on the facts in each given case. That means you shouldn’t lie down and allow the FAA to revoke your certificates (and ultimately career) just because your test has been deemed a “refusal” – fight it with an appeal to the NTSB, as the facts in your case may surmount to a plausible and successful defense.
If you are facing an emergency order of revocation for refusal of a DOT drug test, call an aviation attorney at The Ison Law Firm to discuss your defense. Whether you are an A&P mechanic, IA mechanic, ATP or commercial rated pilot, or otherwise, you could have a great defense at hearing before the NTSB. Your FAA enforcement attorney at The Ison Law Firm is standing by to vector your through legal turbulence.
*This blog article is not legal advice, but rather observations and personal opinions; if you feel you have a legal problem, please contact a licensed attorney.