Types of FAA Drug and Alcohol Testing Required
As a safety-sensitive employee for a Federal Aviation Administration (FAA) regulated employer, you will be subject to various types of DOT drug and alcohol testing according to FAA regulations under 14 C.F.R. Part 120 and Department of Transportation (DOT) regulations under 49 C.F.R. Part 40. There are at least six (6) types of DOT drug or alcohol tests: Pre-employment, Random, Post-accident, Reasonable Cause/Suspicion, Return to Duty, or Follow-Up. See 14 C.F.R. § 120.109 and § 120.217.
For purposes of pre-employment DOT drug tests under Part 120 of the Federal Aviation Regulations (FARs), no employer may hire an individual for a safety-sensitive function unless the employer first conducts a pre-employment test and receives a verified negative drug test result. See 14 C.F.R. § 120.109(a)(1). To that end, no employer may allow an individual to transfer from a non-safety-sensitive to a safety-sensitive function unless the employer first conducts a pre-employment drug test and receives a verified negative drug test result for the individual. See. 14 C.F.R. § 120.109(a)(2).
Interestingly, FAA-regulated employers are not required to conduct pre-employment DOT alcohol testing under Part 120 of the FARs. However, should your employer elect to perform a pre-employment DOT alcohol test, the alcohol test must be conducted before the first performance of safety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to a position involving the performance of safety-sensitive functions). See 14 C.F.R. § 120.217(a)(1). To that end, your employer must treat all safety-sensitive employees performing safety-sensitive functions the same for the purpose of pre-employment alcohol testing. See 14 C.F.R. § 120.217(a)(2).
While there are some other unique requirements for pre-employment DOT alcohol testing under the FARs, ultimately, your employer is not allowed to let a covered employee begin performing safety-sensitive functions unless the result of the employee’s test indicates an alcohol concentration of less than 0.04. If a pre-employment test result under this paragraph indicates an alcohol concentration of 0.02 or greater but less than 0.04, the provisions of 14 C.F.R. § 120.221(f) apply.
As the name suggests, Part 120 of the FARs requires random drug and alcohol testing periodically for covered employees under the regulation throughout the year. While certain circumstances might increase or decrease the minimum annual percentage rate for random drug tests under Part 120, in general, 14 C.F.R. § 120.109(b)(1) requires the minimum annual percentage rate of an FAA-regulated employer’s workforce to be 50% of covered employees under the regulation. Likewise, the general minimum annual percentage rate for random alcohol testing is 25% of the covered employees for an FAA-regulated employer, per 14 C.F.R. § 120.217(c)(1).
If you have been involved in an aviation accident as a safety-sensitive employee, you will be subject to DOT drug and alcohol testing under Part 120 of the FARs. For both drug and alcohol testing under Part 120, “accident” is defined in 14 C.F.R. § 120.7 as “an occurrence associated with the operation of an aircraft which takes place between the time any individual boards the aircraft with the intention of flight and all such individuals have disembarked, and in which any individual suffers death or serious injury, or in which the aircraft receives substantial damage.”
Under 14 C.F.R. § 120.109(c), each FAA-regulated employer must test each employee who performs a safety-sensitive function for the presence of a prohibited drug in the employee’s system if that employee’s performance either contributed to an accident or cannot be completely discounted as a contributing factor to the accident. In the case of a post-accident drug test, you must be tested as soon as possible but not later than 32 hours after the accident.
Similarly, 14 C.F.R. § 120.217(b)(1) requires, as soon as practicable, alcohol testing for each surviving covered employee if that employee’s performance of a safety-sensitive function either contributed to the accident or cannot be completely discounted as a contributing factor to the accident.
Keep in mind that, as a covered employee subject to post-accident alcohol testing, you must remain readily available for such testing, or you may be deemed by the employer to have refused to submit to testing. See 14 C.F.R. § 120.217(b)(3). However, Part 120 of the FARs shall not be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a covered employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care. See 14 C.F.R. § 120.217(b)(3).
Reasonable Cause/Suspicion Testing
When your FAA-regulated employer reasonably suspects that you might be under the influence of alcohol or having used a prohibited drug, your employer must send you for a DOT drug or alcohol test. In other words, under 14 C.F.R. § 120.109(d), if you are suspected of having used a prohibited drug, your employer must base the decision to have you tested on a reasonable and articulable belief that you are using a prohibited drug – a belief which should be based on “specific contemporaneous physical, behavioral, or performance indicators of probable drug use.” See 14 C.F.R. § 120.109(d). Although there is an exception to this rule, generally, at least two of the employee’s supervisors, one of whom is trained in detecting the symptoms of possible drug use, must substantiate and concur in the decision to test an employee who is reasonably suspected of drug use. See 14 C.F.R § 120.109(d).
For purposes of alcohol tests under a reasonable suspicion test, if the employer determines that a reasonable suspicion exists to require the covered employee to undergo an alcohol test, then the employer must have specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee. See 14 C.F.R. § 120.217(d)(2). Like drug tests performed due to reasonable cause, the required observations to trigger an alcohol test for reasonable suspicion shall be made by a supervisor who is trained in detecting the symptoms of alcohol misuse. See 14 C.F.R. § 120.217(d)(2). Of particular note, however, is the fact that an employee may be directed by the employer to undergo reasonable suspicion testing for alcohol only while the employee is performing safety-sensitive functions; just before the employee is to perform safety-sensitive functions; or just after the employee has ceased performing such functions. See 14 C.F.R. § 120.217(d)(3).
Return to Duty Testing
If you have previously tested positive for drugs or alcohol or refused a test for an FAA-regulated employer, before you can be returned to your safety-sensitive duties, you must perform a return to duty test. Per 14 C.F.R. § 120.109(e), No employer shall allow an individual required to undergo return-to-duty testing to perform a safety-sensitive function unless the employer has received a verified negative drug test result for the individual. The test cannot occur until after the Substance Abuse Professional (SAP) has determined that the employee has successfully complied with the prescribed education and/or treatment. See 14 C.F.R. § 120.109(e).
Likewise, for return-to-duty alcohol testing, under 14 C.F.R. § 120.217(e), before a safety-sensitive employee can return to duty after a positive alcohol test or refusal, the employee shall undergo a return to duty alcohol test with a result indicating an alcohol concentration of less than 0.02. The test cannot occur until after the SAP has determined that the employee has successfully complied with the prescribed education and/or treatment. See 14 C.F.R. § 120.217(e).
If you have previously been found to have misused alcohol or prohibited drugs due to a DOT drug or alcohol test under the FAA regulations, you will be subject to follow-up drug and alcohol testing per 14 C.F.R. § 120.109(f) and § 120.217(f).
If you have questions about a DOT drug or alcohol test as a certificated airman with the FAA or as a safety-sensitive employee, do not hesitate to contact the experienced attorneys at The Ison Law Firm for a free consultation.