As a safety-sensitive employee for an employer regulated by the Federal Aviation Administration (FAA), you are subject to the alcohol testing regulations set forth by the Department of Transportation (DOT) and FAA. As such, your FAA-regulated employer must conduct the types of testing described throughout 14 C.F.R. Part 120 and 49 C.F.R. Part 40 regulations. Consequently, covered employees may not report for duty or remain on duty in a position requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater.
Pre-Duty Use
If you are a flight crewmember, flight attendant, or air traffic controller, you may not consume alcohol within eight (8) hours of performing your duties. Moreover, employees may not perform duties for the following positions within four (4) hours after consuming alcohol: flight instruction, aircraft dispatcher, aircraft maintenance or preventive maintenance, ground security coordinator, or aviation screening duties.
On-Duty Use
Logically, covered employees may not consume alcohol in any form while performing safety-sensitive functions. This prohibition also applies to covered employees who are immediately available to perform safety-sensitive functions.
Use After an Accident
Covered employees with knowledge of an accident involving an aircraft for which they performed a safety-sensitive function at or near the time of the accident may not use alcohol for eight (8) hours after the accident unless they have been given a post-accident test.
Refusal to Submit to Testing
Under 49 C.F.R. § 40.261, you are considered to have refused a DOT alcohol test if you:
- Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer,
- Fail to remain at the testing site until the testing process is complete; Provided, That an employee who leaves the testing site before the testing process commences for a pre-employment test is not deemed to have refused to test,
- Fail to provide an adequate amount of saliva or breath for any alcohol test required by this part or DOT agency regulations; Provided, That an employee who does not provide an adequate amount of breath or saliva because he or she has left the testing site before the testing process commences pre-employment test is not deemed to have refused to test,
- Fail to provide a sufficient breath specimen, and the physician has determined, through a required medical evaluation, that there was no adequate medical explanation for the failure,
- Fail to undergo a medical examination or evaluation, as directed by the employer as part of the insufficient breath procedures outlined at § 40.265(c),
- Fail to sign the certification at Step 2 of the ATF, or
- Fail to cooperate with any part of the testing process
Covered employees may not refuse to submit to a post-accident, random, reasonable suspicion, return-to-duty, or follow-up alcohol test. Typically, an FAA-regulated employer will not permit an employee who refuses to submit to such a test to perform or continue to perform safety-sensitive functions.
Canceled DOT Alcohol Tests Due to Fatal Flaws
When a client contacts The Ison Law Firm because of an allegedly positive DOT alcohol test result, we often look, in part, to 49 C.F.R. § 40.267, for fatal flaws in the testing process. Under this regulation, an alcohol test must be canceled if the following “fatal flaws” are discovered:
a.) In the case of a screening test conducted on a saliva Alcohol Screening Device (ASD) or a breath tube ASD:
- The Screening Test Technician (STT) or Breath Alcohol Technician (BAT) reads the result either sooner than or later than the time allotted by the manufacturer and Part 40,
- The saliva ASD does not activate,
- The device is used for a test after the expiration date printed on the device or on its package, or
- The breath tube ASD is tested with an analyzer which has not been pre-calibrated for that device’s specific lot
b.) In the case of a screening or confirmation test conducted on an Evidential Breath Testing (EBT), the sequential test number or alcohol concentration displayed on the EBT is not the same as the sequential test number or alcohol concentration on the printed result.
c.) In the case of a confirmation test:
- The BAT conducts the confirmation test before the end of the minimum 15-minute waiting period,
- The BAT does not conduct an air blank before the confirmation test,
- There is not a 0.00 result on the air blank conducted before the confirmation test,
- The EBT does not print the result, or
- The next external calibration check of the EBT produces a result that differs by more than the tolerance stated in the Quality Assurance Plan (QAP) from the known value of the test standard. In this case, every result of 0.02 or above obtained on the EBT since the last valid external calibration check is cancelled
As with canceled DOT drug tests, a canceled DOT alcohol test is neither positive nor negative per 49 C.F.R. § 40.273.
If you have refused a required DOT alcohol test or tested positive for alcohol, before you speak to anyone, contact our team from The Ison Law Firm Aviation Lawyers today at 855-322-1215 for a confidential consultation to discuss your potential case and available defenses. Time is of the essence in these matters, so don’t delay!
