DOT through FAA mandates that all commercial aviation entities adopt, administer, and maintain an alcohol and drug testing program for safety-sensitive employees. FAA investigates compliance with these requirements and takes enforcement action for noncompliance with such requirements. Both the entity with the program and the individual who is subject to testing are responsible for following the regulations. For the most part, almost exclusively, enforcement action against individuals who have violated the drug and alcohol testing regulation is by way of an emergency FAA order that revokes that person’s certificates. The FAA has zero tolerance for mistakes and misunderstandings, and while the collectors and the lab may make mistakes, the FAA does not view many of the flaws that occur in the testing process as fatal to finding the individual in violation of the regulations—either a positive test or a refusal to test.
Maintenance Professionals who perform maintenance or inspections on aircraft used in commercial operations (generally speaking, work done for Part 135 and 121 operators) are required to be in a program that mandates testing in accordance with DOT/FAA regulations. There is an individual responsibility in this regard, so it is prudent to be sure of your particular responsibilities to be in a program, and it’s not wise to rely solely on what the company may be telling you, especially for contract mechanics.
Tip 1. Don’t do drugs. We’re talking about illegal substances and substances that used to be illegal but are now legal in some states. Marijuana, cocaine, PCP, heroin, and meth are all no-no’s. Don’t do them. Even if they’re legal, even if they’re medicinal. And avoid situations where you might unintentionally ingest substances that could produce a positive result. Be mindful that certain workout supplements, hemp seed bread, cocoa tea, poppy seed bagels, some Kind bars might contain trace amounts of problematic substances. Do your best to check labels on the foods you pick up in the states where marijuana is legal, and be wary of home cooked goods if you think marijuana could be in them; think laced edibles such as gummies, cookies and brownies. Don’t take chances because, so far, the FAA is not accepting accidental ingestion as a valid excuse for having drugs in your system.
Tip 2. Be careful with medications that you are prescribed. If you test positive for marijuana, cocaine, amphetamines, semi-synthetic opioids (i.e., hydrocodone, hydromorphone, oxycodone, and oxymorphone), and/or PCP, the MRO must report the positive test result unless you present a legitimate medical explanation for the presence of the drug or metabolite in your system. Be ready to let the drug testing lab know if you’re taking prescription medication, which may cause a positive test result. Taking medication following a procedure can be a legitimate explanation, as long as the result is not reported for an illegal drug of abuse like PCP and marijuana (yes, even legal marijuana is not a legitimate excuse in the aviation industry). And, it’s not legitimate if you use someone else’s medication even if it would be the kind that the doctor would prescribe for you, and the FAA has not accepted unintentional ingestion of someone else’s medication as a legitimate explanation either. You must have been prescribed the medication by a licensed professional and the prescription must be in your name.
Tip 3. Always take a notification to submit to a test seriously. If you are enrolled in an industry drug and alcohol program and are asked to submit to a test, take the request seriously and promptly submit to the test. You are generally required to submit to the test immediately upon getting the notice from your employer that you have been selected for a random test. The employer may allow you a reasonable time to submit to the test, but it will be the decision of the employer, not you, to determine what is reasonable. You may have just come off an all-night flight, or off an all-day shift, but don’t think you can take the test the next day. The lab may be busy and there’s a long line waiting to be seen for a test, but don’t leave and think you’ll come back later or the next day when it’s not so busy. Adhere to the instructions you are given to take the test and follow them, even if inconvenient. Otherwise, the regulations define a failure to appear to be tested within the time directed by your employer to be a refusal to test and that finding puts all of your certificates in jeopardy of being revoked on an immediate basis.
Tip 4. Never refuse a test. If you are asked to be tested, it is almost always in your best interest to submit to the test, no matter the reasons that you think may justify your failure to meet the testing requirements. Leaving the testing site before the process is complete, even to step outside onto the sidewalk for a breath of fresh air may constitute a refusal. Not showing up at the testing site immediately because you wanted to run a quick errand or show up for a previously scheduled appointment first could constitute a refusal to test. Failing to cooperate in the testing process by not following instructions or coming across confrontational might result in a determination that you refused the test. What constitutes a refusal to test goes beyond saying “I refuse to be tested.” It is really hard to imagine that any of us in the commercial aviation industry would ever intentionally violate the FAA’s regulations, including refusing a drug or alcohol test request or adulterating our sample, but because the definition is so broad and there are so many circumstances that we think reasonable, it’s important to understand the pitfalls! There are many cases involving safety sensitive employees who are alleged to have refused to be tested.
Tip 5. Don’t ever leave the testing site until the test is completely over. Once you have arrived at the testing site and checked in, do not leave the testing site until the testing process is completely over. Sometimes the wait to be seen can seem long, and sometimes, waiting until you’re ready to go in the cup can take a bit of time. Do not give in to the urge to go run an errand or get something to eat and come back, or to leave and come back in the morning when it may not be so busy and you’re ready to provide the specimen. Don’t leave the site until you’ve provided the sample, or until you’ve been told that you can leave, specifically, by the collector at the testing site. If you leave prematurely, the testing site will document your test as a refusal to test. The staff at the testing site are supposed to warn you that if you leave, the test will be coded as a refusal, but they don’t always provide a clear warning. During your new hire training, you were probably educated about the testing process, and you should have learned that leaving the testing site is viewed as a refusal to test at that time, but for many people, that training was years earlier and not all of the information is always remembered. A refusal to test is not just refusing to take the test; a refusal to test is also defined as leaving the testing site before the test is completely over. So, don’t leave the lab until you have completed the test and have been told by the staff that you are free to go.
Tip 6. If you have ever experienced a shy bladder circumstance, document it. If you are called for a drug test, but you’re unable to provide an adequate amount of urine for testing, the collector will report your test as a “refusal to test”. However, the drug testing regulations allow the Medical Review Officer to cancel a test if the MRO determines that a medical issue precluded you from providing an adequate specimen. That is, the FAA may recognize the excuse of a sickness or a shy bladder situation for those employees who are unable to produce an adequate specimen during a drug test. However, the FAA is very specific in what it will consider adequate to excuse a failure to provide a urine specimen because of a medical condition. If there is a physiological medical explanation for your body’s failure to give the specimen, this may be something that a competent medical professional can identify after the test and such explanations may include a urinary tract infection, an obstruction, or nerve problems. Otherwise, if the explanation for your inability to produce an inadequate specimen stems from a mental reason – don’t think mental disorder here, but rather a social phobia – then the FAA will only accept this reason as a valid excuse if the mental condition can be shown to have existed prior to the test. In other words, the FAA will not consider a shy bladder that occurs for the first time during a drug test to be a valid reason to cancel the test; however, if there is documentation of a pre-existing condition or of previous similar-type incidents, even if not resulting yet in any diagnosis, the MRO may accept the psychological reason as a valid medical explanation for failing to successfully complete the test.
Tip 7. Pay attention to how the test is being conducted while it’s being conducted. Being informed and being your own advocate in the testing process can be an important part in protecting your interests. Naturally, it’s hard to know what is being done right or wrong in the collection process because it is not something that we learn or refresh on continuously, and for some, it’s rare to even be called to submit to a test. It’s only after the test is complete and days later you are notified that you refused a test or your test came back positive that you start to go over every detail of what was done and realize that the regulations were not followed by someone in the process, whether it be the front desk nurse, the collector, the lab, the Medical Review Officer, or your employer. Staying educated on what happens in the testing process can help if you’re called for a test, then during the test you note something wrong, you’re able to speak up about it at the time, instead of trying to overcome the FAA’s natural presumption of testing correctness in hindsight.
One of the pieces of advice that the government gives us is to “comply, then complain.” It’s not bad advice. If you think you were improperly selected for a test, take the test and then state your grievance to your employer. If the collector is not keeping control of the Custody and Control Form and the collection cup, if the collector breaks the seal of the cup without you present, or if you both have not maintained visual contact with the bottles to the extent possible until after they are sealed, speak up and document what was done.
A piece of advice that we routinely give in our presentations is to be proficient in your knowledge of the drug and alcohol testing regulations and the program that covers you. Reading up on the drug and alcohol testing process every once in a while is a good idea to keep you informed and aware of the process so that if the request does come, usually by surprise, you are ready and you have the fighting chance to protect your certificate if something goes wrong. Among other resources, DOT’s Office of Drug & Alcohol Policy & Compliance (ODAPC) maintains a website that can help refresh and update your knowledge of the drug and alcohol testing requirements and process. https://www.transportation.gov/odapc
Kathy Yodice is the Managing Partner of Yodice Associates, a private practice law firm with a special emphasis on aviation law. She has more than 30 years experience representing airman in FAA enforcement actions, regulatory compliance matters, accident investigations, and aviation-related business issues.
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