Drug and alcohol testing update

July 1, 1998

Drug and Alcohol Testing Update

The Permanent Bar

By Stephen P. Prentice

July / August 1998

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant license and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran.

Many moons ago, we did a piece on drug testing and described the nonsense that our industry would be saddled with forever. We all saw it coming, more expense, more bureaucrats, and simply more hassle. Well, it sure has arrived in spades during the past few years.

We have noted a little bit of sanity recently however. The FAA drug enforcement people have now reduced the random rate of alcohol testing for those involved with safety-sensitive functions from 25 percent to 10 percent. The reasoning is that the current rate of violations occurring is about 0.08 percent! This means that less than one half of one percent of the workers in the field was detected with alcohol use. So the testing "pool" can expect less random testing from now on.

Not so with drugs however. The random testing rate for drugs still sits at 25 percent because of an alleged current violation rate of 0.71. Still less than one percent, but it is over one half of one percent. The admitted reason for this is simply that these figures include the majority of positives that come from pre-employment testing. Pre-employment tests keep people who are users otherwise, out of the industry completely and therefore should not be included in the statistic for the industry. Not so says the FAA, and the excessive costs for random drug and alcohol testing continue.

We just heard from two technicians who were sitting in a car eating their lunch and having a can of beer with their sandwiches. The beer supply was contained in a small cooler on the seat, which was closed, and they were not drinking anything when the inspector approached. There were two empty beer cans in plain sight on the floor of the pickup. This scene should be of some interest to technicians because it does happen from time to time, especially on hot summer days.

The two men worked for an FAR 135 air carrier at a small Midwest airport. Unfortunately for them, their PMI (FAA Principal Maintenance Inspector) happened by just at this time. He parked his car next to theirs, looked in, and began chatting with them. He obviously spotted the cans on the floor and asked if they had just finished them. They said "yes" and that they were on their lunch hour and off duty anyway. He asked further where they got the beer and they responded that they had purchased it at a store where they picked up the sandwiches. He also asked them about who told them they were "off duty" on their lunch hour.

What do you think of the scene? Are there any violations? You had better say yes!

Let's review this somewhat obscure rule. Too many technicians that I have recently talked with at air carriers and repair stations are unaware or just uninformed of what is called the Permanent Bar as it relates to Drug and Alcohol testing in our industry. Here is the rule...

FAR 135 (Air Taxi Operators and Commercial Operators), 121 (Certification and Operation: Domestic, Flag, and Supplemental Air Carriers and Commercial Operators of Large Aircraft), and 145 (Repair Stations) Air Carrier 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; or 135.253c, or who engages in alcohol use that violates another alcohol misuse provision of 65.46a; 121.458; or 135.253c, 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.

Simply put, what all this means is this — if the guys in this scenario lose their case for using alcohol while on the job, then this is their first "bite" on alcohol. They do get a second. If this is their second "bite," they are history in the air carrier business. They can of course still work in the FAR 91 field all they want, but they cannot work in the "certificated" air carrier business at all...ever! This rule also applies to any repair station activities if they are involved with repairing air carrier parts. Pretty strong you say? Well, it just points out the importance placed on the subject by the FAA and Congress.

In the case of being caught blowing some maryjane smoke or snorting coke behind the hangar at lunchtime during working hours...well then...you are out of the air carrier business permanently, no bite!

Keep in mind that the "baggage" regarding alcohol does follow you. You might be inclined to think that maybe you wouldn't carry your violations with you to another job. Not true! If you get an alcohol violation at one job, it follows you to the next. You have had your "bite" and you get no more! This is the reason that background checks are so important for the employer and why the FAA looks very closely at company background check investigations. Just let them find an air carrier or repair facility not doing adequate background checks on the safety-sensitive function employees, and all hell breaks loose. Enforcement action can result in substantial fines and may include attacks on the operating certificate itself if the conduct was to continue on subsequent checks.

What you have to remember is this—just because you are in you're own mind, "off duty" on your lunch hour or some other break, you may still be considered to be on the job. Drug and alcohol prohibitions still apply. This is nothing to fool with because you don't want to be threatened with losing your means of earning a living in the air carrier business.
1. No alcohol or drugs on duty.

2. An employee found with a blood alcohol level of 0.04 or more cannot remain on duty in a position requiring the performance of a safety-sensitive function. Such an employee may be terminated or alternatively be required to be evaluated and treated as a condition of further employment. If found with level of 0.02 to 0.039, you will be sent home. If found a second time with a concentration at this level, you are subject to termination.

3. In the case of pre-duty use, crewmembers follow the 8-hour rule. In other words, they have to wait at least 8 hours after consuming alcohol before assuming duties. Technicians and other maintenance personnel come under a 4-hour rule. Keep in mind that "on call" employees who could be called to perform a safety-sensitive function, are subject to the same pre-duty alcohol prohibition. In the event they consume alcohol within 8 or 4-hour rules, they would have to refuse a call to work.

4. No alcohol can be consumed for 8 hours after an accident. (Assuming involvement in some way with the accident via maintenance or operations). That is, any accident as defined by the NTSB, i.e. "an occurrence associated with the operation of an aircraft with the intention of flight, including the time that all passengers have disembarked, and, in which any person suffers death or serious injury, or in which the aircraft receives substantial damage."

Keep in mind that "safety-sensitive function" includes just about anyone involved with air carrier activities; even those people who repair parts in shops, and in some cases, those that handle the parts installed on an air carrier aircraft. If you want to be sure to keep your safety-sensitive position in the industry; Stay away from alcohol and drugs! Remember the Permanent Bar.