Greg Reigel's Aero Legal Services

Drug And Alcohol Testing Programs: Are Your Employees Covered?

By Gregory J. Reigel

© June, 2013 All rights reserved.

As you probably know, under 14. C.F.R Part 120 an individual who performs a safety-sensitive function, either directly or by contract, for an 14 C.F.R. Part 121 or Part 135 air carrier or an operator conducting nonstop passenger-carrying flights under 14 C.F.R. § 91.147, is subject to drug and alcohol testing. Performing aircraft maintenance or preventative maintenance duties are both considered safety sensitive functions.

Thus, an individual performing aircraft maintenance for an employer subject to Part 120 must participate in and be covered by an appropriate drug and alcohol testing program. This means the individual is subject not only to pre-employment drug and alcohol testing, but the individual is also included in the pool of employees subject to random drug and alcohol testing.

But, by whose drug and alcohol testing program must the individual be covered? Well, for an individual working for only one employer, the answer is easy: that one employer's program. However, in situations where an individual is working for more than one employer, the answer may not be as clear cut. And, unfortunately, the consequences an employer may suffer from an incorrect answer to this question can be significant, as a Part 135 air carrier recently discovered.

In FAA v. M & R Helicopters, Inc., a civil penalty case, the FAA's Drug and Alcohol Abatement Division performed an inspection of M & R's drug and alcohol testing programs to determine it's compliance with 49 C.F.R. Part 40 and 14. C.F.R Part 120 (the regulations governing how the drug and alcohol testing programs are to be implemented and conducted). The inspection revealed that one of M & R's employees had performed a vibration balance test on a Bell 206B helicopter used in the Part 135 carrier's operations. However, the FAA's inspection discovered that the employee was not included in M & R's random pool for required drug and alcohol testing when he performed the maintenance nor had the employee set up his own drug and alcohol testing program and corresponding random pool.

Not surprisingly, the FAA issued an order assessing a $4,400 civil penalty against M & R for violations of 14 C.F.R. § 135.251(a) (requiring an air carrier to test its employees for drugs pursuant to a drug testing program)(This regulation is now codified at 14 C.F.R. § 120.35(a)) and § 135.255(b) (requiring an air carrier to test its employees for alcohol pursuant to an approved program)(This regulation is now codified at 14 C.F.R. § 120.39(a)). M & R denied the FAA's allegations and appealed the order.

At the hearing before the ALJ, M & R conceded that the employee was not covered by M & R's or the employee's own drug and alcohol testing program. However, M & R argued that since the employee was covered by Air Methods' drug and alcohol testing program, another employer for whom the employee performed maintenance, this satisfied the requirements under the FARs. The ALJ initially observed that the definition of "employer" requires "an individual performing a safety sensitive function for an employer to be covered either by the employer's screening program or the program of the contractor (in this case, Air Methods) when the individual is performing work for the employer within the scope of his employment for the contractor."

He then noted that although the employee was covered by Air Methods' drug and alcohol testing program, Air Methods forbade its employees from performing any outside maintenance for other operators. As a result, since the employee's "moonlighting" activity was not authorized under his employment with Air Methods, his performance of maintenance for another employer was outside the scope of his employment and the employee was therefore not covered by Air Methods' program when he was "moonlighting".

The ALJ concluded that absent membership either in the employee's own drug and alcohol testing program or M & R's program, the employee was prohibited by the drug and alcohol testing regulations from performing his work for M & R because he was not covered by an authorized drug or alcohol testing program. Consequently, the ALJ affirmed the FAA's assessment of a $4,400 civil penalty against M & R.

The $4,400 penalty assessed by the FAA was significantly more than the $550.00 minimum amount per violation suggested for a "Group IV" small-business entity under the FAA's Sanction Guidance Table contained in Order 2150.3B committing this type of violation. However, the sanction was still less than the $11,000 per violation maximum the FAA could have assessed against this size employer for failing to include an employee in its drug and alcohol testing program.

This case certainly highlights the need for employers subject to drug and alcohol testing requirements to ensure their employees are subject to a program that will cover their employees' work before they perform any safety sensitive functions for the employer. The FAA is very unforgiving when it comes to drug and alcohol testing program violations. Failure to comply with the applicable requirements will result in significant civil penalties or certificate action.

If you are unclear about drug and alcohol testing requirements, contact an aviation attorney to discuss and clarify before you do something that could cause you serious, and expensive, problems with the FAA.