Faa post accident drug testing requirements

By Lucas Middlebrook, Esq., Seham, Seham, Meltz & Petersen, LLP

Every aircraft maintenance technician (AMT) licensed by the Federal Aviation Administration (FAA) has, most likely, been tested for drugs and/or alcohol at some point during their career. However, despite requiring submission to these tests, airlines tend not to explain the process or the substance of the testing programs. This article is intended to serve as a short introduction on the FAA’s drug and alcohol testing requirements.

First, it is important to understand what types of tests are required by the FAA. The FAA requires drug and alcohol testing in the following circumstances:

• Pre-employment drug testing: this one is somewhat self-explanatory. An airline is restricted from hiring an AMT (or other safety-sensitive employee such as a pilot or flight attendant) unless the employer first conducts a pre-employment drug test and receives a verified negative result.
• Pre-employment alcohol testing: An airline may, but is not required by the FAA, to conduct pre-employment alcohol testing. If an airline chooses to do so, it must treat all safety-sensitive employees in a similar fashion (translation: if the airline chooses to conduct pre-employment alcohol testing, it must do so consistently with all safety sensitive employees).
• Random drug testing: Everybody is familiar with this concept. An airline is required to conduct random testing for all safety-sensitive employees, including AMT’s. The random selection must be accomplished by a scientifically valid method, such as a computer-based random number generator. The FAA sets the minimum testing rate, which has been at 25% of all safety-sensitive employees for some time now. Once selected, tested randomly and the result is finalized, the airline is required to place you back in the random testing pool so that all safety-sensitive employees have an equal chance of being selected.
• Random alcohol testing: Same concept as random drug testing, except the annual minimum testing rate is only 10% of safety-sensitive employees. Remember, however, the 10% and 25% are minimum thresholds and an airline may, but is not required to, test above those amounts.
• Post-accident drug testing:An airline is required to test a safety-sensitive employee for drugs if that employee’s performance either contributed to an accident or cannot be completely discounted as a contributing factor to the accident. In this instance, the employee should be tested as soon as possible, but not later than 32 hours following occurrence of the accident.
• Post-accident alcohol testing: The same requirements with respect to post-accident testing also apply to alcohol; except an airline is required to complete post-accident alcohol testing within 2 hours of the accident. If that window cannot be met, the airline is required to continue the efforts to collect until 8 hours following the accident. Once 8 hours has elapsed, the airline must cease attempts at collection and maintain a file on record stating the reason alcohol testing could not be accomplished within 8 hours following the accident.
• Reasonable cause drug testing: An airline is required to test a safety-sensitive employee if that individual is suspected of having used a prohibited drug. The decision must be based on a reasonable and articulable belief that the employee is using a prohibited drug on the basis of specific, contemporaneous physical, behavioral, or performance indicators of probable drug use. What does that mean translated into plain English? It means the people making this determination must have observed the employee exhibiting signs of drug use -- the decision to test cannot be based on rumor or speculation.
• Reasonable suspicion alcohol testing: An airline is required to have a safety-sensitive employee submit to an alcohol test when there is reasonable suspicion to believe the employee is impermissibly under the influence of alcohol. Like drug testing under these circumstances, the determination that reasonable suspicion exists shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee. Again, this decision cannot be based on mere rumor or speculation.
• Return to duty drug and/or alcohol testing:In the event an employee tests positive for either drugs or alcohol, that employee cannot return to a safety sensitive position (assuming the employer has not terminated employment) unless and until the employee has completed a certified substance abuse professional (SAP) program and also taken either a drug or alcohol test (depending on the circumstances) and received a negative to such test.

Second, it is important to understand exactly what substances you are being tested for when instructed to provide a urine sample. The FAA follows the U.S. Department of Transportation (DOT) drug testing regulations, and those regulations require testing for the following substances: marijuana, cocaine, opiates/opioids, phencyclidine (PCP) and amphetamines (which includes methamphetamines and MDMA (“Ecstasy”)). These are the only substances for which testing is required under the applicable FAA and DOT regulations. Therefore, if an airline chooses to test for additional substances, it cannot do so using federal authority. In addition, once an airline chooses to test outside the contours of what the regulations require, it must comply with applicable state and local laws regarding drug and alcohol testing. If the airline stays within the federal regulation parameters, those regulations preempt all state and local laws applicable to drug and alcohol testing. The FAA considers an alcohol concentration of .04% blood alcohol concentration (BAC) to constitute misuse in violation of its regulations. As a comparison, most (if not all) state driving under the influence laws adopt .08% BAC as the threshold. Therefore, the FAA definition of misuse is half the standard of most state drunk driving laws. Finally, for this piece, it is important to understand what constitutes a refusal to test.

The term refusal to test is addressed under applicable DOT regulations -- namely, 49 CFR Part 40. The term has slightly different meaning when applied to drug or alcohol testing. The DOT regulations consider the following a refusal to submit to a drug test:

• Failure to appear for any required test (except a pre-employment test) within a reasonable time after being directed to do so by your employer;
• Failure to remain at the testing site until the testing process is complete. However, an employee who leaves the testing site before the testing process commences for a pre-employment test is not deemed to have refused;
• Failure to provide a urine specimen for any required drug test; except that an employee who does not provide a sample because he left the site before a pre-employment test commenced is not deemed to have refused;
• In the case of a directly observed or monitored collection -- failure to permit the observation or monitoring;
• Failure to provide the minimum amount of urine necessary to complete the testing process (i.e., 45 mL) within three hours of commencement of the process if there was no adequate medical explanation for the failure;
• Failure 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 your employer’s Designated Employer Representative (DER) in the event of an inability to provide the minimum of amount of urine;
• Failure to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process)
• For an observed collection, failure to follow the observer’s instructions;
• Possess or wear a prosthetic or other device that could be used to interfere with the collection process;
• Admit to the collector or MRO that you adulterated or substituted the specimen;
• The MRO reports a verified adulterated or substituted test result.

The DOT regulations also set forth what constitutes a refusal to test in the context of an alcohol test:

• Failure to appear for any test (except a pre-employment) within a reasonable time after being directed to do so by your employer;
• Failure to remain at the testing site until the testing process is complete. However, an employee who leaves the testing site before the testing process commences for a pre-employment test is not deemed to have refused;
• Failure to provide an adequate amount of saliva or breath (depending on device being used);
• Failure to provide a sufficient breath specimen, and a physician has determined, through a required medical examination, there was no adequate medical explanation for the failure;
• Failure to undergo a medical examination or evaluation, as directed by the employer as part of the insufficient breath procedures;
• Failure to sign the certification at Step 2 of the alcohol testing form (ATF);
• Failure to cooperate with any part of the testing process.

It is important to understand what constitutes a refusal to test, as a refusal, for all intents and purposes is treated by the FAA and DOT in the same manner as a positive test. This article has simply scratched the surface of drug and alcohol testing as it applies to safety-sensitive employees in the airline industry. AMFA will soon begin work on a video to provide additional guidance on this important topic.