Beware

of random alcohol and drug testing.


Those of us familiar with the air carrier business know full well the painful results of the “Permanent Bar” resulting from use of alcohol or drugs on the job. It can permanently deprive you of working in a safety sensitive position at any regulated activity. Permanent loss of pilot’s job, mechanic’s job, and others in safety-sensitive positions can happen. Lets refresh our recollections on some of the rules and look at a current case …

The Permanent Bar … FAR 135, 121, 145 certificated activities.

The Drug Bar:

“An employee who has engaged in prohibited drug use during performance of a safety-sensitive function is permanently precluded from performing that safety-sensitive function for any employer.”

FAR 121 Appendix I, VI, F2

The Alcohol Bar:

“An employee who violates 65.46a,(c), 121.458(c), or 135.253(c) or who engages in alcohol use that violates another alcohol misuse provision of 65.46a, 121.458, or 135.253 ... and had previously engaged in alcohol use that violated ... (above provisions) … is permanently precluded from performing for an employer the safety-sensitive duties the employee performed before such violation.”

FAR 121 Appendix J, V, B. The background facts

The new hire was a pilot, but it could have been any other employee, mechanic, flight attendant, or anyone else subject to random drug and alcohol testing. He had received his initial captain’s training and was called from his home for his first planned station assignment. The case describes how he was told to report on a certain day for reserve status starting at 5 p.m. on that day. The company maintained that they told him to report on reserve the day before. The tapes of their conversation were erased by the company so no confirmation of their instruction to him was possible.

The day he checked into the assigned hotel he met an old friend who also worked for the company. They decided to socialize that night and his friend checked in with crew scheduling asking them to confirm that he, the friend, would not be on duty (reserve) until the following evening at 5 p.m. He also confirmed that his friend, the new hire captain, would also start on duty (reserve) the following evening. There are no tapes of this confirmation.

Reserve status sometimes has a dual connotation, either on or off duty depending on the particular circumstances and the company. If one is at home on reserve status this is usually thought of as off duty. If one was at the airport duty station or at the duty station hotel this is considered by many as on duty status.

At 8:30 a.m. the following morning the new man was called at the hotel for a random drug and alcohol test. He stated that he was not on duty (reserve) until 5 p.m. that evening and therefore refused the test. The HR representative disagreed. She maintained that he was to report a day earlier than he had understood. The phone tapes relevant to these conversations were erased by management. He was told he had to take the test or suffer a “refusal,” the result of which is the same as a positive test. He took the test as ordered and it resulted in a .04 BA. He was immediately fired.

The case

Needless to say, the new hire captain was shocked. He knew full well, if allowed to stand, his random positive alcohol test while allegedly on duty, (or “just before” since pilots are not checked while flying), would essentially end his professional flying career which had taken 25 years to develop. He was over 40 years old. He hired a lawyer and proceeded to sue the employer for wrongful discharge.

His lawsuit also included causes of action for defamation and intentional infliction of mental distress. His basis for the defamation allegation was that under the Pilot Records Improvement Act (PRIA 49 U.S.C. 44703 h) the company had informed a subsequent potential employer of the captain’s failed random test and that they knew this to be false because the test was fraudulent. The PRIA report denied him the new job.

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