FAA Medical and Marijuana Use

FAA Medical and Marijuana Use

Your FAA medical and marijuana use do not go together. Marijuana has become “legalized” in many states for medicinal and personal use. Nevertheless, on a federal level (and the Federal Aviation Administration is on the federal level), marijuana is banned. For FAA medical certification purposes, marijuana is still, effectively “illegal,” as described in question 18n. on the application for airman medical certification. Specifically, question 18n. on the FAA medical application asks if ever in your lifetime you have ever been diagnosed with, had, or presently have “substance dependence or failed a drug test ever; or substance abuse or use of an illegal substance in the last two years.” As a result, if you have used marijuana within two years of applying for your airman medical certificate, you will have to report that use at question 18n. Situations in which you are using marijuana legally within your state will still warrant your reporting said use at question 18n., as well as potentially identifying marijuana as a medication at question 17a. But what is the consequence of the FAA finding out about your marijuana use?

As you may be aware, the Federal Aviation Regulations identify “substance abuse” and “substance dependence” as specifically disqualifying conditions for first-, second-, and third- class medical certification. Of course, these “conditions” are defined differently by the Federal Aviation Regulations than by clinical practitioners. The regulations have a lower threshold for what can be considered “substance abuse” or “substance dependence.” Fortunately, if you have an understanding of how the FAA defines these conditions, however, you can understand the general algorithm by which the FAA’s Office of Aerospace Medicine seems to handle an airman’s use of marijuana.

It has been the experience of our firm that while use of marijuana can meet criteria for “substance dependence” under the regulations, typically, airmen are less frequently found to meet criteria for “dependence” based purely on marijuana use. In practice, marijuana use meeting criteria for “substance dependence” is most commonly found as the result of an airman having multiple marijuana-related, legal infractions, or continuing to use marijuana despite the airman experiencing adverse consequences. Nevertheless, due to the fact that “substance dependence” for marijuana is less common, this article will focus on how marijuana use is most typically categorized under “substance abuse.”

The regulations relative to “substance abuse” require that there have been no “substance abuse” within the preceding 2 years defined as:

  1. Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
  2. A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
  3. Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds – (i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or, (ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or   exercise those privileges.

See 14 C.F.R. §§ 67.107(b), 67.207(b), and 67.307(b) (emphasis added).

The most important characteristic of the “substance abuse” regulation is the catchall of “misuse of a substance [at the Federal Air Surgeon’s discretion].” Herein, we find the FAA’s leeway to consider any evidence of use of marijuana as meeting criteria for “substance abuse.” Nevertheless, the airman’s use must have been within the past two years. If the FAA’s inquiry regarding your marijuana use reveals that your use is outside of two years, you can present an argument to the FAA that even if you met criteria for “substance abuse” at one point in time, you no longer meet such criteria due to more than two years having elapsed since your last use. If, however, there has been use of marijuana within the past two years, the FAA will determine that you meet criteria for “substance abuse” and require that you engage in ongoing, random testing with a HIMS-trained AME, as well as have a HIMS psychiatric evaluation prior to granting you a special issuance authorization. The FAA will likely require ongoing testing for a period of up to two years (generally).

Here are some things we would recommend that you consider when it comes to your FAA medical and marijuana use:

  • If you are currently using marijuana, you will not be able to get a medical certificate without achieving and demonstrating complete abstinence from all mood-altering substances. You will need to be issued a special issuance authorization. Obtaining a special issuance authorization for “substance abuse,” if done properly, will likely take at least six months.
  • Even if your current marijuana use is for medicinal purposes, the FAA will consider this “substance abuse,” at a minimum. As a bonus, the FAA will want to know more information about the underlying condition(s) for which you are being treated with marijuana.
  • If you have used marijuana within the past two years and report said use to the FAA appropriately, you will not be able to get a medical certificate without achieving and demonstrating complete abstinence from all mood-altering substances.
  • If you have ever used marijuana in any capacity throughout your lifetime which meets criteria for “substance dependence,” you will need to demonstrate recovery satisfactory to the Federal Air Surgeon. This will involve evidence of treatment, abstinence, ongoing recovery activities, and monitoring with a HIMS AME. Again, however, in our experience, it is relatively rare for an airman to be found to have “substance dependence” to marijuana by the FAA.
  • If you report a history of an arrest or conviction for a “possession” offense, consider that possession is not use. The FAA must have evidence of use per the above-referenced regulations to establish that there has been “misuse” of a substance.”
  • Learn more about your FAA medical and marijuana use in our episode about this topic on The Pilot Lawyer Podcast.

If you are concerned about your FAA medical and marijuana use, consider a consultation with a FAA medical defense attorney at The Ison Law Firm before applying for a FAA medical certificate. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.