Drug and Alcohol Testing Expands

Most of us in the aviation business don’t pay much attention to the arcane rules that come out of the FAA hopper. Recently this one slipped out and will have far-reaching effects on those in the maintenance business far on down the chain of contractors and subcontractors.

Safety-Sensitive Employment

As we all know by now the FAA in 1989 was charged with laying out regulations to establish drug and alcohol testing of employees performing “safety-sensitive” work for air carriers and others in the industry who come in contact with air carrier aircraft. Even I, as a director of safety for an airline, was included in the testing “pool”. The testing rules extended from regulated entities like air carriers and repair stations to certain contractors who performed work for the regulated business. Under the law the outside contractors who performed by contract for the carrier or repair station have to participate in a drug and alcohol testing program if they are performing a “safety-sensitive” job. However, now at this late date the FAA has elected to include others down the chain in the program. The FAA finally decided that a vast group of workers who were performing safety-sensitive jobs are not included in any testing program. It decided to include these people by adding language that would cover all persons performing a “safety-sensitive function in the maintenance field.

Guidance By FAA

When FAA decides to explain and “guide” regulated entities and persons they publish what is called “guidance” to elaborate and attempt to explain the scope of their regulations to the people concerned. Since 1989 when first put in place, the testing requirements seemed to be in conflict regarding who exactly in the maintenance chain was covered. Some were included some were not depending on who and where you were located and who was enforcing the regulation. Sound familiar?

The guidance generally excluded those activities that did not take “airworthiness responsibility” another catch-22 phrase that troubled many to explain. The problem was that nobody could agree on just who and what was airworthiness responsibility. Further confusion reigned in the matter of the relationship between airworthiness responsibility and how it related to a safety-sensitive function. This has gone on since 1989 and finally came to a head recently with the growth of “outsourcing” large amounts of routine aircraft and engine maintenance.

The FAA found that airlines were on average outsourcing 53 percent of their maintenance work and that was an increase of 36 percent since 1996. Other outsourcing efforts have been made in the front line employee area as well. You can clearly see where your jobs are going. Both domestic and overseas maintenance facilities are getting more work now. Some maintenance organizations here at home have tried to limit outsourcing by their employers but there has been little success in this effort. I would not be surprised to see the lion’s share of outsourced work soon going to foreign facilities. It’s definitely up. (United to China for heavy checks and Jet Blue to South America for inspections and repairs, for example, among others). It’s all about money, no matter what they say!

We have today what is called the virtual airline in some cases. This is where there are aircraft and owners but little else in the way of infrastructure to call an airline. Most if not all traditional employee-related work can be outsourced, usually for less money. Flight crews included. Many suggest that there should be certification restrictions on these types of operations, but the pendulum is swinging fast and nobody in power is concerned enough to put the brakes on it.

The FAA’s basic purpose in expanding drug and alcohol testing in the maintenance field is to provide testing for all persons performing safety-sensitive work. It became clear to them, finally, that safety-sensitive work could legally be performed by those without airworthiness responsibility, so this could no longer be a yardstick for a testing requirement. It had to be changed.

The Simple Answer

As is usual with government they decided to include everybody. It was done with the addition of a parenthetical phrase in the regulation extending coverage:“… (including by subcontract at any tier)” so that the complete regulation would read as follows: “each person who performs a safety-sensitive function directly or by contract (including by subcontract at any tier) for a regulated employer, is subject to testing.” Currently, both FAR Part 121 Appendix I, Section III and Appendix J, Section II specify that employees performing a “safety-sensitive” function must be subject to testing if they are performing directly or by contract for an employer. The language now seems to reach far down the maintenance chain well beyond the original contractor.

Needless to say there were many objections to this expansion of testing coverage because of increased costs and administrative oversight by the regulated entities. For the most part they fell on deaf ears at the FAA.

International Outsourcing

It is interesting to note that there was little discussion of the fact that much outsourced maintenance work now goes overseas to China, England, France, India, South America, and others, that do not require any kind of drug or alcohol testing or criminal background investigations. The theory is that these companies can offer much lower prices because they have lower administrative costs. FAA drug and alcohol testing regulations at the present time, prohibit testing outside the United States and its territories. There is no extra-territorial testing requirement. Many believe there should be.

There is however, an effort in Congress to pass legislation requiring at least background investigations of employees at both foreign and domestic repair facilities. H.R. 4582, the Aircraft Repair Station Security Enhancement Act of 2005 is the title. Simply put, it would add an employee security investigation requirement for all foreign and domestic repair stations (Part 145). Included also, would be fixed base operators, maintenance repair or overhaul facilities, aircraft manufacturers (including any subsidiaries), airframe manufacturers (or subsidiaries), airframe or engine manufacturers, and structural or component manufacturers. This bill has not been passed and is still in committee the last we heard.

Needless to say, most feel that since drug and alcohol testing and criminal background checks are required at home it should also be required of any foreign repair facility that works on U.S.-registered Part 121 aircraft. Perhaps it will be next in line or added to the legislation already in the mill. The carriers who outsource to foreign countries could easily force drug and alcohol testing simply by demanding it as a condition of giving them the business. We shall see.

FAR 121.363, 135.413(a)

In addition, the FAA and others have noted that non-certificated repair facilities are getting more and more outsourced business from domestic airlines. One of the big concerns is the amount of oversight they get from the air carrier. (Obviously none from the FAA.) It’s been determined that it amounts to slim or none. Air carriers are more concerned about the work they send to certificated repair facilities and usually provide on-site auditors to confirm quality control. (For which they are responsible.)

Responsibility . . . Air carriers are primarily responsible for the airworthiness of their aircraft.

FAR 121.363 requires that a regulated employer must ensure that any individual performing safety-sensitive functions for it is subject to the required drug and alcohol testing requirements. The regulated employer has the ultimate responsibility to ensure that people performing work for it by contract are subject to FAA-regulated testing. As one might imagine, most of the complaints from industry are concerned with expenses and supervision — auditing of contractors and subcontractors regarding their compliance with drug and alcohol testing requirements. Just how could the audit requirements be satisfied for contractors and subcontractors is the key question?

Direct contractors must determine the airworthiness of an article they work on and also ensure their subcontractors have actually implemented drug and alcohol testing programs because both have safety implications. Regulated employers and contractors at any tier should not disregard the requirement of safety responsibility. It is not necessary for companies to perform audits simply because the FAA regulations do not require audits to assure testing requirements are met. But some oversight is necessary.

Commentators on the subject wanted the FAA to provide guidance to distinguish safety-sensitive maintenance from other types of maintenance that does not have the potential to directly impact airworthiness. The FAA stated that in the drug and alcohol testing regulations, any maintenance or preventive maintenance a person performs for a regulated employer is a safety-sensitive function, and therefore is subject to testing. The FAA was reluctant to further define maintenance and preventive maintenance because it would likely be outdated quickly and not help the situation. The FAA says what is preventive maintenance and maintenance is the responsibility of the regulated employer. In theory any other kind of work is not subject to testing. So the bottom line is simply that your employer in the air carrier business defines who is to be tested and who need not be . . . but the company is still responsible . . . go figure. Send any comments to aerolaw@att.net.