How to "Just Say No"
A look at drug and alcohol regulations
By Fred Workley
Drug and alcohol testing is a way of life for aviation industry employees. This is the result of the U.S. federal government pursuing safety initiatives for all transportation industry personnel. To meet safety goals and prevent accidents comprehensive drug and alcohol regulations are in place.
Starting in 1989, federal regulations (Drug Testing Program, 14 CFR Part 121, Appendix I) have required drug testing of aviation industry employees. At the same time, the Federal Aviation Administration's (FAA's) Drug Abatement Program was established to help the aviation industry develop and implement a drug-testing program. In 1995, the program was changed to include alcohol-testing regulations (Alcohol Misuse Prevention Program, 14 CFR 121, Appendix J).
The Department of Transportation (DOT) published a final rule on drug testing in 1998 (Procedures for Transportation Workplace Drug Testing Programs, 49 CFR Part 40). This DOT regulation was based on the Department of Health and Human Services (HHS) guidelines for federal agency employee drug testing, with some changes to fit the transportation workplace. DOT added alcohol testing to Part 40 in 1994. All DOT drug and alcohol programs, including the FAA's, must comply with Part 40. Only forensic laboratories certified by HHS may be used to conduct drug testing.
On Feb. 28, 2002, the FAA proposed a Notice of Proposed Rulemaking to make changes to 14 CFR Part 121 Anti-drug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities. After years of inspecting the aviation industry's anti-drug and alcohol misuse prevention programs, the FAA proposed to clarify regulatory language, increase consistency between the anti-drug and alcohol misuse prevention program regulations where possible, and revise regulatory provisions as appropriate. Specifically, the proposal was aimed at changing the anti-drug plan and alcohol misuse prevention certification statement submission requirements for employers and contractors. It wanted to revise the timing of pre-employment testing and modify the reasonable cause and reasonable suspicion testing requirements.
The FAA clarified that the decision to cover an employee under the drug and alcohol regulations must be based on the duties that the individual performs rather than employment status (full time, part time, temporary, or intermittent) or job title. The proposed language was not intended to change the current rule's scope. Rather, it was to clarify that each person who performs a safety-sensitive function directly or by performing the service (as a subcontractor) for an employer is subject to testing. This was not a substantive change because the prior rule stated that anyone who performed a safety-sensitive function "directly or by contract" must be tested. The FAA proposed to clarify that performance "by contract" means performance under any (subcontracting) tier of a contract.
The Federal Register, Vol. 67, No. 40, Feb. 28, 2002, proposed rules constricted the plain language of the regulation as it applied to contractors. The potential reach of performing by "contract" is not actually limited to those who have a direct contract with the air carrier, but would include anyone who is performing work described in the original contract between the prime contractor and the air carrier. If the term "contract" were to be limited to the entity in direct relationship with the air carrier, then the air carrier could not enter into any contract that permitted subcontracting unless the contract also required the subcontractors to conduct the required testing. Otherwise, the air carrier would be in violation of the regulation by contracting for maintenance by persons who are not subject to testing.