Soon after the drug-testing rule became effective, in order to be prepared to perform work by contract for air carriers, small and large maintenance providers obtained drug and alcohol testing programs regardless of whether they were performing as a subcontractor or a prime contractor to an employer. The reality of the industry is that often a company performing maintenance for an air carrier may be performing as a prime contractor today and as a subcontractor tomorrow.
Contracting vs. subcontracting
Drug testing plans, without any distinction between their contracting vs. subcontracting duties, need to be reviewed. The constriction of the scope of testing of contractors developed at the beginning of the program in 1989 is in conflict with the goal of having each person who performs a safety-sensitive function actually tested to ensure that he or she is not impaired. This early guidance had a safety net because it limited the exclusion of subcontractors to those circumstances where the subcontractor did not take airworthiness responsibility; therefore there was another level in the system overseeing the work. However, it is the FAA's clear policy to require that anyone who is actually performing maintenance be tested in accordance with the regulations.
As drug and alcohol testing became pervasive in the aviation maintenance area, FAA's informal guidance ceased to reference the limited subcontractor exception and employers were advised to test all persons actually performing maintenance directly or by contract for an air carrier. However, some employers may be unaware of this change, and others have continued to rely on the earlier informal guidance to avoid testing the subcontractors involved in safety-sensitive maintenance duties.
Under the current requirements, under 14 CFR Part 121, Appendices I and J, aviation employers may develop a company program as long as it has all the requirements of a federally mandated program, or it may expand or reduce the requirements as deemed appropriate. Each employer must ensure that its employees understand that its company program and its FAA-mandated programs are separate and distinct. Employees must be advised under whose authority they are being tested, and they must be made aware of the consequences that may arise from each program.
Aviation entities required to develop and implement FAA-mandated drug and alcohol programs include those certificate holders operating under Part 135 and Part 121, and operators as defined in 14 CFR 135.1(c). Employees working in aviation-related industries who perform safety-sensitive functions directly or by contract for an employer must be covered under an FAA-approved drug and alcohol program. This includes Part 145 certificated repair stations.
Testing and thresholds
The U.S. Department of Health and Human Services has approved testing protocols and positive thresholds for urinalysis testing for the following five drug categories: cocaine, marijuana, opiates, phencyclidine (PCP), and amphetamines. Alcohol is breath tested only. The accuracy and integrity of the testing process is dependent on adherence to the protocols and testing process. These testing protocols and thresholds have been upheld by the U.S. courts.
The 2003 anti-drug and alcohol misuse prevention program testing rates for personnel engaged in safety-sensitive aviation activities are the lowest permitted by law: Random drug testing is 25 percent and random alcohol testing is 10 percent. These rates apply to aircraft maintenance or preventative maintenance personnel.
Types of testing required under FAA-mandated drug and alcohol programs (14 CFR Part 121, Appendix I, V. and Appendix J, III.):
- Pre-employment (not mandatory for alcohol but permitted)
- Reasonable cause/suspicion
- Retesting of covered employees with an alcohol content of 0.02 or greater but less than 0.04 (alcohol testing only).
Employee assistance programs
Education: An education program for employees must include at least the following: display and distribution of informational material, a community service hotline telephone number for employee assistance, and the employer's policy regarding drug use in the workplace. Each employer should include educational materials that explain the requirements of the alcohol misuse program and the employer's policies and procedures with respect to meeting those requirements.
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