FAA and DOT Drug Tests
Safety-sensitive employees for an employer regulated by the Federal Aviation Administration (FAA) are subject to the drug testing regulations set forth by both the Department of Transportation (DOT) and FAA. As such, your certificated airmen employed by an FAA-regulated employer must conduct the type of testing described throughout Part 120 and the DOT “Procedures for Transportation Workplace Drug Testing Programs.” See 14 C.F.R. § 120.109.
As a safety-sensitive employee, DOT and FAA regulations require drug tests to screen for the following five (5) prohibited drugs or classes of drugs:
- marijuana metabolites,
- cocaine metabolites,
- amphet amines,
- opioids, and
- phencyclidine (PCP)
See 49 C.F.R. § 40.85.
Consequences of Using Prohibited Drugs
The FAA takes a strict stance on the use of prohibited drugs by safety-sensitive employees for FAA-regulated employers. If you are found to have a prohibited drug in your system, based upon a valid DOT drug test, 14 C.F.R. § 120.33 requires your employer to immediately remove you from performing safety-sensitive functions. You may only be returned to performing your safety-sensitive duties once you undergo the return-to-duty requirements in accordance with 49 C.F.R. Part 40. Furthermore, an employee that tests positive on two (2) DOT drug tests required by Part 120, subsequent to September 19, 1994, will be permanently precluded from performing safety-sensitive duties for an employer. See 14 C.F.R. § 120.111(e).
The penalties for failing a DOT drug test can be significant – leading to an airman potentially losing medical certification with the FAA or even possibly a suspension or revocation of the airman’s certificate(s). Revocation of your airman certificates is usually up to one (1) year. After one year, you would need to reapply and retest for all certificates previously held!
Refusal to Submit to DOT Drug Test
If you are requested to submit to a DOT drug test, there can be serious ramifications if you refuse to take the DOT drug test. Under 49 C.F.R. § 40.191(a), you will be considered to have “refused” a drug test if you do any of the following eleven (11) actions:
- fail to appear for any test within a reasonable time,
- fail to remain at the testing site until the testing process is complete,
- fail to provide a urine specimen for any drug test required,
- fail to permit the observation or monitoring of your provision of a specimen during a directly observed or monitored collection,
- fail to provide a sufficient amount of urine when directed and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure,
- fail or decline to take an additional drug test the employer or collector has directed you to take,
- fail to undergo a medical examination or evaluation, as directed by the Medical Review Officer (MRO) as part of the verification process, or as directed by the Designated Employer Representative (DER),
- fail to cooperate with any part of the testing process,
- fail to follow the observer’s instruction to raise your clothing above the waist, lower clothing and underpants, and turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process during an observed collection,
- possess or wear a prosthetic or other device that could be used to interfere with the collection process, or
- admit to the collector or MRO that you adulterated or substituted the specimen
Just like a positive DOT drug test, the FAA takes the refusal of a required DOT drug test seriously. A refusal by a certificate holder to take a drug or alcohol test required under Part 120 is grounds for the denial of an application for any certificate, rating, or authorization issued under the Federal Aviation Regulations (FARs) for up to one (1) year. See 14 C.F.R. § 120.11(b)(1). Moreover, the FAA can seek to suspend or revoke any certificate, rating, or authorization issued under the FARs should you refuse a DOT drug or alcohol test. See. 14 C.F.R. § 120.11(b)(2).
Canceled DOT Drug Tests Due to Fatal Flaws
When a client contacts The Ison Law Firm because of an allegedly positive DOT drug test result, we often look, in part, to 49 C.F.R. § 40.199 for potential defenses. Therein, the DOT regulations speak to “fatal flaws” in the testing process that must always result in the cancelation of the test. The following fatal flaws are outlined in 49 C.F.R. § 40.199(b):
- there is no Custody Control Form (CCF),
- there is no specimen submitted with the CCF,
- there is no printed collector’s name and no collector’s signature on the CCF,
- two separate collections are performed using one CCF,
- the specimen ID numbers on the specimen bottle and the CCF do not match,
- the specimen bottle seal is broken or shows evidence of tampering, or
- because of leakage or other causes, there is an insufficient amount of urine in the primary specimen bottle for analysis and the specimens cannot be re-designated
A canceled drug test, per 49 C.F.R. § 40.207(a), is neither positive nor negative. In other words, a “canceled test does not count toward compliance with DOT requirements.”
If you have refused a required DOT drug test or tested positive for a prohibited drug, before you speak to anyone, call the experienced attorneys at The Ison Law Firm for a free consultation to discuss your potential case and available defenses. Time is of the essence in these matters! Do not delay!