Drug Testing 2011

In our efforts to get along with the European aviation people you no doubt have read about our efforts to get their maintenance people to do drug and alcohol testing and background checks, on their employees, like we do here in our country, regarding safety-sensitive positions. They have steadfastly refused to do so claiming that it is an invasion of their employees’ privacy. Of course that argument fell on deaf ears over here many years ago when it was first mandated in our aviation business. It now seems ironic that we might be imposing more stringent rules regarding what we will test for even when Europe says no to any testing at all. But first …

The Reauthorization Act for the FAA still lies in limbo in the Congress and most likely will do so well into this congressional session. One of the sticking points among others is requiring the FAA to inspect foreign repair stations at least twice a year and as noted, require background checks and mandatory drug and alcohol testing for the safety-sensitive workers at foreign repair stations, just as we do for our own people. The European regulators have threatened to dismantle bilateral agreements and flight activities if we persist in imposing testing requirements and inspections on their workers. They have done this numerous times in the past on other issues with some success in thwarting our efforts on testing.

Representative Jim Oberstar (D-MN) former House Aviation Committee Chairman was defeated in the recent election and will be replaced. Things may now get tougher for the Europeans. House Representative Jerry Costello (D-IL) is now chairman of the House Aviation Subcommittee, and his counterpart in the Senate is Sen. Byron Dorgan (D-ND). Hopefully, they will continue to press for drug testing in Europe. They will be the point men to go to in order to support testing in Europe.

A new twist

A recent case (discussed below) brings to light a further development of drug testing in our country. Did you know that some employers terminate an employee when a drug test turns up a legally prescribed drug that you use for pain relief?

Most of us who are included in a safety-sensitive testing pool in air or ground transportation are certainly aware that a random urine test can get you in trouble when it turns up the classic no-no’s i.e., marijuana, cocaine, amphetamines, phencyclidine, (pcp), nonsynthetic opiates, and now recently, as of Oct. 1, 2010, the drug called ecstacy. But we have always considered the use of doctor prescribed drugs to be safe from the testing threat, that is, the laboratory would not be testing for anything other than the stated six drugs in the drug testing protocol and even if they did, prescription drugs would be OK.

Companies’ efforts

It would seem that some workers’ compensation insurance companies will lower the insurance premiums or provide other incentives to companies that have a state drug-free workplace program designed by many states to reduce workplace injuries. These tests cover a broader list of drugs that includes many commonly prescribed pain remedies for pain and headaches in general.

Although prescription drug testing has not reached the aviation field as yet, there is a strong movement in industry to expand the mandatory drug testing that is in place for transportation (aviation, trains, buses, etc.) and nuclear workers to include some legal prescription drugs. Employers in these safety-sensitive industries would be left to decide which synthetic opiates or other commonly used legal drugs they would test for. Also, we must keep in mind that pilots are required to divulge all drugs, including prescription drugs and over the counter drugs on their medical exam form. If they don’t they can suffer severe results including loss of their pilot certificate and medical certification.

This concern is no surprise considering the broad liability of employers for industrial accidents or product defects and workplace injuries that involve the abuse of prescription drugs.

Reports say that many employees are now worrying about other employees who use strong prescription drugs causing accidents and injuries to others around them and themselves. There is no doubt among some physicians that prescribed opiates for pain can be abused to a point where the user can be impaired. Some doctors on the other hand (those treating pain) say that if the opiates are prescribed carefully (whatever that means) and the patients are well supervised then there will be no impairment of these people. Most in industry don’t buy this however.

Reasonable suspicion

Employers still have to use the “reasonable suspicion” standard in order to require a random test for opiate impairment. Of course the problem with this standard is who decides what is reasonable suspicion of impairment? Both in aviation and nonaviation activities.

Setting rules for prescription drug use will be difficult at best and loaded with all sorts of problems. Prescription drugs are easily obtained for pain by doctors, for example. Several lawsuits have been brought by patients alleging that their doctor injured them during surgery because they were impaired by the use of prescription drugs. The major difficulty is proving impairment.

In the air carrier or maintenance activities business, training must be provided to those who are designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol or drug testing. The regulations require the designee must be provided a minimum of at least one hour of training on the physical, behavioral, speech, and performance indicators of probable drug or alcohol misuse and thus impairment. This one hour of training hardly qualifies one as an expert however.

There are now reports that some employers are attempting to get employees to disclose what prescription drugs they use on a regular basis. There are several cases working their way through the courts that are attempting to clarify this issue. The chief complaint is that this is an invasion of privacy that violates the Americans With Disabilities Act. Interestingly, privacy is the same excuse used by the Europeans against drug and alcohol testing which the FAA requires of aviation employees in safety-sensitive positions. However, the current cases are not involved directly with people in the transportation business.

Creating rules for the use of prescription drugs in the workplace will be difficult at best. How is impairment to be determined? Who is designated to make this decision? We all know that each prescription drug comes with a long laundry list of do not do’s including, not driving or operating machinery. Most pain medications warn against lightheadedness and dizziness that include a threat of bone fractures from falls. There is also the threat of drug interactions changing the way the drugs can work to your disadvantage. How all these matters can be resolved is a job for doctors. Indeed many of them disagree on the very issues at stake.

Anti-drug testing laws

Some cities prohibit certain types of drug testing and or make it more difficult to test employees. (Of course this does not apply in the federal arena of aviation). Most people are not aware of the fact that San Francisco, CA, and Boulder, CO, for example have anti-drug testing laws. In short, some states have anti-drug testing laws, some have restrictions, and others are either neutral or have a pro drug testing law. Take your choice.

Recent case

A recent Court of Appeals case dismissed a District Court case in Tennessee where the plaintiffs were former employees of Dura Automotive Systems, which makes glass window units for cars, trucks, and buses. They used the Americans with Disabilities Act (ADA) to challenge Dura’s drug testing policy which included testing for prescription pain drugs. Testing for these drugs and their use resulted in the employees’ termination as a result of their use of these drugs. They were perceived as being a threat to themselves and others on the job. Dura had a higher rate of workplace accidents than other plants and determined that this may be due to legal or illegal drug use. The drug policy tested for 12 substances including those found in legal prescription drugs. The company gave the affected employees an opportunity to switch to other alternatives. They did not accept this and therefore were terminated.

The ADA prohibits employers from asking about prescription drugs unless the employees are seen acting in an impaired manner that would compromise safety. Employers must have reasonable belief that a person is unable to do the job or is a threat because of a medical condition. Some have suggested that the ADA has been compromised by the rubric of “don’t ask, don’t tell.”

The court in this case said that since most of the plaintiffs were not in fact disabled in accord with the ADA requirements they could not use the ADA to base the case on. Therefore the court dismissed the case and ordered the District Court to dismiss the claims of the nondisabled plaintiffs. There is however a split of opinion on the matter of being disabled in order to use the ADA and some courts have allowed nondisabled parties to use the ADA to assert their case. This Appeals Court however did not.

This was a technical dismissal that never really got to the issues in the case, but again speaks to the difficulty in dealing with drug testing in the workplace. Other cases in the courts may open this area for further examination. Comments to aerolaw@att.net. 

 

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. Heis a USAF veteran. Send comments to aerolaw@att.net.

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