Drug-And-Alcohol Testing Programs: Are Your Employees Covered?
As you probably know, under FAR Part 120, an individual who performs a safety-sensitive function, either directly or by contract, for an FAR Part 121 or Part 135 air carrier or an operator conducting nonstop passenger-carrying flights under FAR § 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? 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. 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 its 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 FAR § 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 FAR § 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 FAR § 120.39(a).) M&R denied the FAA’s allegations and appealed the order.
At the hearing before the administrative law judge (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 — 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 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.
Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certificate (single-engine land and sea and multi-engine land) with instrument rating. His practice concentrates on aviation litigation, including aviation insurance matters and FAA certificate actions, and also aviation transactional matters. He is admitted to practice law in Minnesota and Wisconsin and advises clients throughout the country on aviation law matters. A cum laude graduate of William Mitchell College of Law, Reigel is the founder and president of the law firm Reigel & Associates Ltd./Aero Legal Services based in Hopkins, MN. He frequently speaks to groups on aviation and business law issues. Reigel is a member of the AOPA Legal Services Panel, secretary of the Minnesota Aviation Trade Association, and a member of the NTSB Bar Association, National Business Aviation Association, Minnesota Business Aviation Association, ABA-Forum on Air & Space Law, Lawyer-Pilot Bar Association and Experimental Aircraft Association.
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