How to Just Say No: A look at drug and alcohol regulations

How to "Just Say No"

A look at drug and alcohol regulations

By Fred Workley

Fred Workley
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.

Federal regulations
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.

FAA's proposals
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.

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)
  • Random
  • Post-accident
  • Reasonable cause/suspicion
  • Return-to-duty
  • Follow-up
  • 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.

Training: An employer must implement a reasonable program of initial training for employees that includes the effects and consequences of drug use on personal health, safety, and work environment; the manifestations and behavioral cues that may include drug use and abuse; and documentation of training given to employees and employer's supervisory personnel. Supervisory personnel who will determine when an employee is subject to drug testing (based on reasonable cause) must receive initial and recurrent training on specific, contemporaneous physical, behavioral, and performance indicators of probable drug use. In addition, an employer must ensure that persons designated to determine whether reasonable suspicion exists receive training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.

Records maintenance and retention
Federal regulations require certain drug and alcohol records be kept for a specific period of time. For detailed information on the records that must be kept and required length of time for these records, refer to 49 CFR Part 40; and 14 CFR Part 121, Appendix I, VI. and Appendix J, IV., A.

More information on federal requirements of drug and alcohol programs can be found at www.faa/gov/avr/aam/
adap/index.cfm
.

Everyone has heard "Just Say No to Drugs." Take time to review your program. A drug and alcohol program is another way to "Keep em' Flying."


A special thanks to Eric Wells, Inspector, Drug Abatement Division, Aerospace Medicine, ANM-304, Renton, Washington.

Fred Workley, the president of Workley Aircraft and Maintenance Inc. in Alexandria, VA, Benton City, WA, and Indianapolis, IN, holds an A&P certificate with an Inspection Authorization.

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Consequences under FAA programs

  • Removal from safety-sensitive duties until return-to-duty process is completed.
  • Suspension or revocation by the Federal Air Surgeon of certificate of flight crewmembers and air traffic controllers that allows them to work.

The following procedures must be followed before allowing an employee to resume working in a safety-sensitive position.

  • Initial evaluation by a substance abuse professional (SAP).
  • A SAP must evaluate employees who have violated DOT drug and alcohol regulations and make recommendations concerning education, treatment, follow-up testing, and after care.
  • Employee must participate in the treatment programs recommended by the SAP. If you want to see if your programs are meeting the latest requirements this may help you.
  • Follow-up evaluation by a substance abuse professional to determine if the employee has successfully carried out the education and/or treatment recommendations.
  • Employee must pass a return-to-duty test.

Prohibited conduct and consequences

  • Alcohol concentration of 0.04 and greater.
  • Use of alcohol prior to performing safety-sensitive duties (flight crewmembers, flight attendants, and air traffic controllers may not work within eight hours after consuming alcohol; mechanics, screening personnel, and ground security coordinators may not work within four hours after consuming alcohol).
  • Use of alcohol while on duty.
  • Use of alcohol after an accident.
  • Use of prohibited drugs.
  • Refusal to submit to testing (drugs and/or alcohol).

What's required?
Drug and/or alcohol program documents

Note: An asterisk indicates documents that are required only if those events have occurred or if that practice is followed. Some may not be required but, if available, will greatly assist the review of your program.

  1. List of all employees (current and terminated) who have either been transferred into or have been hired for a covered position during the preceding 12 months. Please indicate: (1) the date the employee was initially hired by the company, (2) the date the employee first began performing or was qualified to perform covered work in their safety-sensitive position, and (3) the date the pre-employment drug test result was received. NOTE: Please provide this list in the same order sequence in which your drug and alcohol testing records are maintained, i.e. alphabetical, chronological.
  2. List of covered employees currently under the drug and alcohol testing programs.
  3. Copy of each FAA-issued Part 121/135/145 certificate held.*
  4. Copy of Part 121/135 Ops Spec Paragraph D085 listing the aircraft authorized to operate under the certificate.*
  5. Copy of Antidrug Plan/Alcohol Misuse Prevention Program Certification Statement.
  6. Notice to applicants of the requirement for FAA pre-employment drug testing.*
  7. Employee drug and alcohol testing background checks and the records obtained from previous DOT-regulated employers (Required as of 08/01/2001).
  8. Random drug and alcohol testing selection lists.
  9. Negative drug test results and breath alcohol test results below 0.02 for the previous 12 months.
  10. Drug testing custody and control forms for the past 12 months.*
  11. Breath alcohol test results at or above 0.02 for the past five years.*
  12. Positive drug test results for the past five years.*
  13. If applicable, records of Substance Abuse Professional (SAP) evaluations, and subsequent employee rehabilitation records for the past five years.*
  14. Medical Review Officer/SAP recommendation to return an employee to duty following a positive test or a refusal.*
  15. Schedule of recommended follow-up testing for an employee who has returned to duty following a positive test or a refusal.*
  16. Documentation of the decisions to conduct post-accident testing, reasonable cause drug testing, and reasonable suspicion alcohol testing.*
  17. Evidence that the FAA has been notified of a refusal to submit to testing on the part of an employee who holds a Part 61, 63, or 65 certificate.*
  18. Instructions provided to donors prior to collections.
  19. Specimen collection instructions for in-house collectors.*
  20. Employer policy, educational materials and community-service hotline telephone number regarding drug use and abuse that have been distributed and displayed to every covered employee
  21. Employee training materials on drug use and abuse and the documentation of the training.
  22. Supervisory training materials on drug use and abuse and alcohol misuse and the documentation of the initial and recurrent training.
  23. Alcohol educational materials and documentation of distribution to employees.
  24. Laboratory semiannual aggregate statistical summaries. You will need to request this report from the laboratory that analyzes the urine specimens.
  25. MIS drug and alcohol annual reports for the previous two calendar years.*
  26. Blind testing quality control procedures and evidence of blind performance test specimen submissions.*

Alcohol program only documents

  1. BAT Initial/Refresher Training documentation (may be held at testing site; obtain from breath alcohol technician).
  2. Quality Assurance Plan (QAP) for the evidential breath-testing device (EBT) used for testing. Include a copy of the NHTSA approval letter or the relevant conforming products list (may be held at testing site) (obtain from breath alcohol technician).
  3. Record of EBT external calibration checks (may be held at testing site) (obtain from breath alcohol technician).
  4. EBT maintenance records (may be held at testing site).*
  5. Post-accident two hour/eight hour "unable to test" documentation.*

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