Month: February 2021

FAA civil penalties for drug abatement violations can put a big dent in a small company’s pocketbook. If you are an air carrier or other certificate holder which is required to conduct DOT drug and alcohol testing for “safety sensitive” employees, the FAA can levy civil penalties for violations of regulatory, testing requirements. Specifically, companies that conduct DOT drug and alcohol testing are required to comply with the requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 for their drug and alcohol testing programs.

As most employers probably know, the requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 are extensive and voluminous. Understandably, employers find it easier to engage the services of a third-party agent to manage the drug and alcohol testing needs of its employees, rather than manage the required testing themselves. Of critical importance, however, is that even if your company employs a third-party service agent, your company is still responsible for compliance with relevant testing regulations. Specifically, 49 C.F.R. §40.15(c) states that:

“You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions. Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with this part or a DOT agency drug and alcohol regulation may have resulted from the service agent’s conduct.”

Therefore, if your service agent drops the ball and fails to properly subject an employee to proper DOT testing, the FAA can subject your company to a hefty civil penalty. 49 U.S.C. § 46301(a)(5) specifically identifies that a company can face a civil penalty not to exceed $13,066 for each violation of the Federal Aviation Regulations. The FAA has a history of pursuing such claims.

If you are facing FAA civil penalties for drug abatement violations, you have options for reconsideration and appeal. The FAA defense attorneys at The Ison Law Firm have experience defending FAA drug abatement violations and are standing by to assist with your case.

In August of 2020, the FAA introduced the HIMS step down protocol for airman who hold a medical certificate pursuant to a special issuance authorization for “substance dependence.” In theory, the step down protocol works two ways for airmen on a “substance dependence” special issuance. In some regards, the new protocol works to eliminate the frequency of a costly, HIMS psychiatric evaluation, time-consuming aftercare requirements, and other monitoring requirements, faster than would otherwise be required. However, on the other hand, the step down protocol extends the duration of a special issuance for the airman’s entire life as a medical certificate holder. While the monitoring that is required may not be too extensive following year 7 of the airman life, the step down protocol does, at least, still provide some level of FAA oversight.

What airmen should be aware of is that the time course of the HIMS step down protocol may be modified on a case-by-case basis. To that end, the specified reduction of requirements is discretionary by the HIMS AME. In essence, if an airman is not providing the HIMS AME with sufficient evidence of recovery within any given phase of the protocol, the HIMS AME may represent insufficient compliance to the Federal Air Surgeon’s office. So, while it may seem like the reduction of requirements throughout the protocol are hard-and-fast, they are not.

If you are an airman on a “substance dependence” special issuance, the HIMS step down protocol may be to your benefit. Be careful, however, because providing evidence of satisfactory recovery to your HIMS AME is paramount to avoiding going back to the beginning of the protocol or worse, having your special issuance withdrawn. If you have questions regarding the HIMS step down protocol, call your FAA medical attorney at The Ison Law Firm.