FAA Seeks Overseas Drug & Alcohol Testing Information

In regards to the recent ANRPM on drug and alcohol testing, ARSA released the following announcement.

On March 17, the Federal Aviation Administration (FAA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) to collect information to draft regulations regarding controlled substance and alcohol testing of part 145 repair station employees located outside the United States.

This development was initially reported by the Aeronautical Repair Station Association (ARSA) when the FAA announced that it would seek comments to the ANPRM on March 13.

The FAA rulemaking is not a surprise; in fact, it is the direct result of a carefully crafted legislative compromise in the FAA Modernization and Reform Act (P.L. 112-95; enacted, Feb. 14, 2012). Specifically, the law mandates in Sec. 301:

(1). IN GENERAL.--The Secretary of State and the Secretary of Transportation, acting jointly, shall request the governments of foreign countries that are members of the International Civil Aviation Organization to establish international standards for alcohol and controlled substances testing of persons that perform safety-sensitive maintenance functions on commercial air carrier aircraft.

(2). APPLICATION TO PART 121 AIRCRAFT WORK.—Not later than 1 year after the date of enactment of this section, the Administrator shall promulgate a proposed rule requiring that all part 145 repair station employees responsible for safety sensitive maintenance functions on part 121 air carrier aircraft are subject to an alcohol and controlled substances testing program determined acceptable by the Administrator and consistent with the applicable laws of the country in which the repair station is located. (emphasis added)

ARSA steadfastly believes mandating drug and alcohol testing of maintenance providers is unnecessary and burdensome with no flight safety benefit. Unfortunately, for many years, labor unions, opposed to contract maintenance, successfully lobbied the FAA and Congress to mandate onerous requirements on repair stations, including drug and alcohol testing.

Efforts to impose drug and alcohol testing on foreign maintenance providers date back to 2007, when then-House Transportation & Infrastructure Committee Chairman Jim Oberstar (D-Min.) included a broader version of the provision in his House-passed FAA reauthorization bills (H.R. 2881; H.R. 915), which as written would have required specimens be sent back to the United States for testing. Industry and foreign civil aviation authorities (CAAs), such as the European Aviation Safety Agency (EASA), fought these efforts, amid the threat of the European Union-United States Bilateral Aviation Safety Agreement (BASA) collapsing. With many proponents adamant that requiring drug and alcohol testing in sovereign countries (despite strict laws prohibiting it) and several other key issues taking precedence, the FAA reauthorization bills were not enactment.

In 2011, when Senate Commerce, Science & Transportation Committee Chairman John D. Rockefeller (D-West Va.) and House Transportation & Infrastructure Committee Chairman John Mica drafted their chambers respective FAA reauthorization bills, the lawmakers included a carefully crafted compromise mandating a proposal for alcohol and controlled substance testing of safety-sensitive employees working on part 121 air carrier aircraft consistent with the applicable laws of the country in which the repair station is located. On February 14, 2012, the compromise became law and now the FAA is implementing congressionally mandated provisions.

Several years later, the FAA is attempting to get its arms around the drug and alcohol testing laws in other countries and how to comply with the ill-conceived congressional mandate. In particular, the agency is seeking answers to the following questions:

• Which drugs are most misused in a particular country? If testing programs exist, are they administered by a national regulatory authority? Are industry participants required to establish such programs under the country’s laws and regulations, or does industry do that voluntarily?

• Should the program require testing for the same drugs the FAA requires tests for in the United States? At what concentrations should alcohol and drug tests be considered “positive?

• Does a particular country allow or require random drug and/or alcohol testing? If so, what is the process?

• If a country does not allow or require random drug and/or alcohol testing, are there laws that prohibit random testing? What other methods might successfully deter employees from misusing drugs or alcohol while performing safety-sensitive duties, or within a certain period of time before performing such duties?  How would such misuse be detected?

• What are the standards that employees who have violated drug and alcohol regulations should meet before they are allowed to return to performing safety-sensitive maintenance work?

Comments are due July 17.

ARSA says the ANPRM should serve as a reminder that excessive regulation begins on Capitol Hill; by the time the aviation maintenance industry mobilized, the best that could be done was to moderate the drug and alcohol testing language. It notes that with your help, next time we’ll be prepared to stop Congress’ bad ideas while it’s still a concept, not when it’s already in legislation.

drug and alcohol testing programs

Shelly Hedrick, President of JetSeat, LLC (www.jetseatllc.com) shared the information she submitted to the FAA ANPRM on Drug and Alcohol testing. Here are her comments on the issue.

Safety should be the number one priority for all aviation professionals and it should be the cornerstone for any aviation operations. Therefore, in the interest of safety, the Federal Aviation Administration (FAA) should require any 145 Repair Station inside or outside the United States performing any maintenance to any Part(s) 121, 135 and 91 operators to implement and administer a drug and alcohol testing program. Safety-sensitive maintenance personnel performing any form of maintenance services should be subject to a drug and alcohol testing program.

The ANPRM should be expanded to include Part 135 and 91 operators as well as Part 121 air carriers, as unsafe operations of any air carrier may cause catastrophic consequences.

In amending the FAA’s drug and alcohol testing regulations, the FAA should focus on the issue of safety versus the legality, moral, cultural or religious views surrounding the use of psychoactive substances (illegal drugs, controlled substances and alcohol). According to the Manual of Civil Aviation Medicine,the use of psychoactive substances varies world-wide as follows:

• Alcohol in the West

• Opium in the Far East

• Hashish (marijuana) in the Middle East

The year 2014 saw the legalization of recreational tetrahydrocannabino (THC), the psychoactive ingredient in marijuana/cannabinoids (“THC use”) in Colorado. In June 2014, recreational THC use will become legal in Washington State. Seventeen states and Washington, D.C. have legalized medical THC use. Twenty other U.S. states and Washington, D.C. are considering initiatives to legalized recreational THC use.

THC concentration is similar to alcohol concentration. Marijuana in the 1960’s and 1970’s had a very low concentration of 2-4% THC similar to 4-5% alcohol content in beer. Today, it is common for THC product to be at a concentration of 25-35% similar to the 40% alcohol concentration in a glass of hard liquor such as bourbon or scotch. The higher the percentage of THC, the more acute influence and the longer the effects last. Colorado has no limitation of percentage of THC under the new recreational law. Therefore, it can be sold in concentrations of 100%.

When inhaled, the effects of THC are immediate and can last up to four hours. When ingested, the effects of THC begin within 30 minutes and can last up to four hours.

With the legalization of THC, usage is no longer limited to inhalation. Marijuana and cannabinoids may now be consumed and/or ingested in products including, but not limited to soda pop, candy, cookies, cakes, cooking oil, butter, etc. Driving under the influence of THC remains illegal and law enforcement may obtain a search warrant for a person’s breath or blood.

The DOT and FAA remain adamant that use of any form of THC by individuals performing safety-sensitive functions is illegal and prohibited. The Drug Enforcement Agency (DEA) remains adamant that use of any form of THC is illegal under the federal Controlled Substances Act, which supersedes any state law. The DOT allowsoperators governed by the agencies it governs to implement and administer voluntary drug and alcohol testing programs known as “Company Authority”.

Companies should recognize that psychoactive substance abuse (especially alcohol) is a worldwide problem and marijuana is one of the most underestimated drugs of abuse.

Employers are in unchartered territory with the legalization of THC for medical and recreational use. Prevention and education of using psychoactive substances is the best offense to a great defense. Identification of problematic use and removal from company functions increases the safety of employers, employees, property, machinery, assets and the public. Companies should determine worst-case scenarios for employees’ use of problematic substances.

International 145 Repair Station employers need to examine the issues prevalent with employees’ use of psychoactive substance, especially THC, inside and outside the workplace. If employers are not concerned about the use of psychoactive substances, they should be. Employers should focus their attention regarding usage of THC (whether legal or illegal) and psychoactive substances and where to focus their attention:

• Where to get started and how to prevent employees use? Voluntarily implement a drug and alcohol testing program by a 145 operator which may make them a preferred 145 vendor.

• Are employees using THC in the workplace? Deter usage by random testing and arrest usage by reasonable suspicion/reasonable cause testing.

• Can an employer terminate an employee for testing positive or using THC? Yes – under a drug and alcohol testing program. Employees should (in some cases must) be informed of the consequences of using psychoactive substances.

• What if in the event a disgruntled employee wants to take action against a supervisor or a co-worker and gives him/her a consumable product with THC without his/her knowledge? Allow voluntary testing without disciplinary action.

• What if an employee in the course and scope of his/her employment causes an incident or accident while under the influence? The employer remains liable in many countries.

145 operators should not wait for a problem to arise causing an incident or accident or for the FAA to amend Part 120. By implementing and administering a voluntary Drug and Alcohol Program, employers can greatly reduce incidents or accidents in the workplace and greatly reducing their liability or the possible seizure and sale of assets. It may possibly reduce insurance rates as well.

Time Restrictions from Consumption of Alcohol to Reporting for Duty

It is JetSeat’s belief that in the interest of safety and the prevention of the loss of public trust the FAA should amend Part 120 to include all international Part 145 operators performing maintenance on any aircraft registered in the United States be subject to a drug and alcohol testing program.

The FAA should also expand the time frame from consuming alcohol to performing safety-sensitive maintenance functions from four hours to a minimum of eight hours for all safety-sensitive employees domestically and internationally. Currently, under the Part 120, only crewmembers and flight attendants have an eight hour restriction from “bottle to throttle” while all other safety-sensitive employees are restricted from consuming alcohol only four hours prior to performing safety-sensitive duties (i.e. “bottle to wrench”).

International Civil Aviation Organization (ICAO) recommends an eight hour restriction for consumption of alcohol to duty for safety-sensitive employees. The United Arab Emirates’ General Civil Aviation Authority (GCAA) regulations require a twelve hour restriction from consumption of alcohol to duty for all employees. Many air carriers require a 24 hour restriction from consumption of alcohol to duty for crewmembers. The Manual of Civil Aviation Medicinerecommends all alcohol and drugs have a restriction of twelve hours from consumption prior to duty.

Drug and Alcohol Testing Programs

(Mandatory and Voluntary)

JetSeat, LLC offers aviation companies worldwide Guideline Manuals and Drug and Alcohol Testing Programs (mandatory and voluntary) based on Department of Transportation (DOT), FAA, ICAO and GCAA regulations, recommendation and standards.

The Guideline Manuals consist of the guideline for implementing and administrating a drug and alcohol program for safety-sensitive and non-safety-sensitive employees, safety signs, educational materials and non-Federal forms. The Program includes an employee assistance program and educational materials.

JetSeat also offers initial and recurrent training for supervisors and employees. Training courses for supervisors and employees include syllabuses, tests with answer keys (based on the guideline, program and educational materials) and certifications of completion of training.

The guideline manuals, programs and training courses can be customized by JetSeat to comply with any country’s civil aviation regulations. Currently, it offers programs for the following:

• Mandated Part 120 programs for safety-sensitive employees

• Company Authority programs allowed by the DOT for civil aviation companies (which has been reviewed by the FAA’s Drug Abatement Division in Washington, D.C. which comments have been incorporated) for Part 120 non-covered employees

• Company Authority for non-aviation companies

• Mandatory UAE CAAP 51 for all employees including safety-sensitive

• Company Authority for all employees for aviation organizations governed by the Civil Aviation Authority of the Republic of the Philippines

While researching and writing these programs, Shelley Hedrick has corresponded with the following civil aviation authorities:

• Head of Administration & Examination, Licensing Department of the UAE General Civil Aviation Authority (GCAA)

• Officer in Charge, Republic of the Philippines Civil Aviation Authority (Authority)

• Chief Medical Examiner, European Aviation Safety Agency (EASA)

• Regional Aviation Medical Officer, Transport Canada (TCAA)

• Chief Medical Officer, Civil Aviation Authority Germany (CAA Germany)

Only the GCAA has a mandatory drug and alcohol testing program requirement for aviation companies with safety-sensitive employees (which may include all employees). The program must be submitted to and approved by the GCAA, which then issues a registration number valid for one year, which must be renewed annually. All programs are subject to audit by the GCAA just as the FAA audits mandatory programs.

According to EASA, Authority, TCAA and CAA Germany, none of the authorities require mandatory drug and alcohol testing programs, but all the administrators agreed that voluntary programs would be allowed based on ICAO’s recommendations and standards would be a great idea to increase safety. The only barrier to implementing and administering a drug and alcohol program would be a union or collective bargaining agreement.

Drug and Alcohol Testing Programs

As you know, in 1988, the DOT and FAA set the standard for drug and alcohol testing programs for the aviation industry by requiring Part 121, 135 and 91.147 operators to implement and administer drug and alcohol testing programs for safety-sensitive employees. Part 145 operators providing maintenance to the operators may either be under the operators drug and alcohol testing program or implement one of its own.

International Civil Aviation Organization

By 1991, eleven countries reported to ICAO encountering substance abuse in the workplace, mainly alcohol abuse.

ICAO recommends implementation and administration of drug and alcohol testing program for all countries including contracting members. The Aviation Medicine Section of the Secretariat along with an international study group published the Manual on Prevention of Problematic Use of Substances in the Aviation Workplace published in 1995 which reads:

1.18 ICAO has no cause to believe that problematic use of substances is currently widespread in civil aviation, but increasing use of psychoactive substances in society poses a threat to maintaining today’s level of aviation safety. Fortunately, while it is true that in some transportation sectors the nature and extent of alcohol and drug problems in the workplace may reflect those in the general community within the same age group, to late it appears that even in high-prevalence populations, aviation workplaces show only limited signs of such problems. It is clear, however, that active steps much be taken to protect and promote safety.

1.19 It is necessary that aviation regulators and employers recognize that substance use is a pandemic affecting most if not all parts of the world. Aviation regulators and employers must be able to assess with accuracy not only whether a problem exists in their respective aviation environments, but also whether substance use is prevalent in the larger society surrounding those environment and their resources, States and employers should be encouraged to take the steps necessary and appropriate to prevent problematic substance use in the aviation workplace and thus ensure that the current high level of safety in international civil aviation is maintained.

The manual focused on the following:

• Education of the workforce

• Identification, treatment and rehabilitation

• Employment consequences of problematic use of substances

• Biomechanical testing

United Arab Emirates General Civil

Aviation Authority

On June 1, 2011, the GCAA issued the Civil Aviation Advisory Program (CAAP 51) which regulations require aviation companies with safety-sensitive employees to implement and administer drug and alcohol testing programs. CAAP 51 4.4(c) reads as follows:

“No employee shall drink alcohol during duty time, on company property, or in a company vehicle. It is a violation of GCAA policy for any safety-sensitive employee to come to work within 12 hours of drinking alcohol.”

Psychoactive Substances

ICAO and the GCAA have defined all illegal drugs, controlled substances and alcohol as “psychoactive substances”. Psychoactive substances are considered by ICAO and the GCAA as:

• Alcohol

• Opioids

• Cannabinoids

• Sedatives and hypnotics

• Cocaine and other stimulants

• Hallucinogens

• Volatile solvents

ICAO and GCAA do not consider tobacco or caffeine as psychoactive substances for the purposes of drug and alcohol testing programs.

ICAO 1.2 reads as “In addressing the issue of problematic use of substances by aviation workers, ICAO has not focused on the legality of drug or alcohol use, not on the moral or religious concerns, that such use might raise. . . The measures recommended in this manual are, however, based on more fundamental precepts – underlying points that are constant, regardless of religion, traditions, culture and natural laws. These precepts are:

- that the nature of aviation places a special responsibility on aviation workers, employers, regulators and governments to protect public safety and prevent harm;

- that any psychoactive substance has the potential for creating mental and physical problems in the user; and

- that any use of psychoactive substances which may negatively affect the performance of safety related aviation duties has the potential for doing harm.”

CAAP 51, Chapter 1 reads:

The GCAA accepts that the nature of aviation places a special responsibility on aviation workers, employers, regulators and governments to protect public safety and prevent harm; that any psychoactive substance has the potential for creating mental and physical problems in the user; that any use of such psychoactive substances may negatively affect the performance of safety-related aviation duties and has the potential for doing harm.

Accordingly, the GCAA has decided to implement a drug and alcohol testing program which emphasizes both deterrence and detection of abuse and so prevents the problematic use of substances of abuse by aviation workers which threaten safety in the aviation workplace.

The GCAA defines psychoactive substance/psychoactive drug/psychotropic substance as a chemical substance that acts primarily upon the central nervous system where it alters brain function, resulting in temporary changes in perception, mood, consciousness and behavior. These substances may be used recreationally to purposefully alter one’s consciousness, as entheogens for ritual or spiritual purposes, as a tool for studying or augmenting the mind, or therapeutically as medication.

ICAO Recommended and GCAA Authorized Testing

Under ICAO recommendation and standards and GCAA regulations, testing may be conducted for allpsychoactive substances by blood (per ICAO the most accurate), breath, follicle, saliva and urine.

Under Part 40 and Part 120, testing for alcohol may be only be conducted by breath, saliva or urine (by blood under special circumstances) and only urine for:

• Marijuana

• Cocaine

• Opiates

• Phencyclidine (PCP)

• Amphetamines, or

• A metabolite of those drugs in the individual’s system

Reasons for Testing

ICAO recommends and the GCAA

requires the following testing:

• Pre-employment

• Random

• Reasonable cause/reasonable suspicion

• Post accident/incident

• Return-to-Duty

• Follow-up

• Voluntary

Laboratories

The GCAA and the Authoriy both have approved testing laboratories similar to the DHHS approval process. Medical Review Officers, Consortium/Third Party Administrators and Substance Abuse Professionals are approved in the UAE by the GCAA.

Categories of Testing of Aviation Personnel -

Foreign Countries Laws and Regulations

Under ICAO’s Manual and CAAP 51, employers may drug and alcohol test all employees.

ICAO

Per ICAO, an employer that has a “one population, one policy rule” testing program the program would apply testing all or none of its employees. Safety-sensitive categories under 5.15 include flight crewmember (pilots, flight engineers and flight navigators), flight attendants, maintenance personnel (including repair and inspection personnel), flight instructors, dispatchers, passenger and baggage screeners, ground security coordinators, air traffic controllers, airport security and firefighters.

ICAO Standards and Recommended Practices (SARPs) contain the following:

1.2.6.1 License holders shall not exercise the privileges of their licenses and related ratings at any time when they are aware of any deterioration in their medical fitness which might render them unable to safely exercise these privileges.

1.2.6.1.1 - Contracting States “should, as far as practicable, ensure that license holders do not exercise the privileges of their licenses and related ratings during any period in which their medical fitness has, from any cause, decreased to an extent that would have prevents the issue or renewal of their Medical Assessment.”

6.2.2 “makes it mandatory for an applicant of a license or its renewal be free of, inter alia,” any active, latent, acute or chronic disability … such as would entail a degree of functional incapacity, which is likely to interfere with the safe operations of an aircraft or with the same performance of his/her duties.”

6.3.2.2 (Class 1 Medical Assessment for the applicants or for holders of commercial pilot licenses, airline transport pilot licenses, flight navigator and flight engineer licenses)

6.4.2.2 (Class 2 Medical Assessment for private pilot licenses and glider and free balloon pilot licenses)

6.5.2.2 (Class 3 Medical Assessment for air traffic controller licenses) and 6.7.2.2 the applicant shall not have an “established medical history or clinical diagnosis of … alcoholism, drug dependence … such as might render the applicant unable to safely exercise the privileges of the license applied for or held ...”

Annex 6, Part II, 4.12 – “the pilot-in-command shall be responsible for ensuring that a flight: a) will not be commenced if any flight crew member is incapacitated from performing his duties by any cause such as injury, sickness, fatigue, the effects of alcohol or drugs; b) will not be continued beyond the nearest suitable aerodrome when flight crew members’ capacity to perform functions is significantly reduced by impairment of faculties from causes such as fatigue, sickness, lack of oxygen.”

Annex 2. 2.5 – “No person shall pilot an aircraft, or act as a flight crew member of an aircraft, while under the influence of intoxicating liquor or any narcotic or drug, by reason of which his capacity so to act is impaired.

GCAA

The GCAA defines an employee as any person who is working for hire for a public or private institution and potentially subject to drug testing and/or alcohol testing. Drug testing may be done on a random basis for all employees, for employees working in safety sensitive positions, in cases of reasonable suspicion, return-to-duty situations, as well as for applicants for employment (pre-employment testing).

Operators must advise employees which positions are a “Testing Designated Position”, which is defined as any individual who is working for hire/training for Company and all positions/cadets are subject to random testing for psychoactive substances use. All positions are subject to random testing no sooner than thirty days following the notice. Individuals selected for random testing shall receive an individual notice, prior to the commencement of testing, indicating that their position has been designated a Testing Designated Position. Employees have the opportunity to voluntarily admit to being a user of illegal drugs and to receive counseling or rehabilitation, “in which case disciplinary action is not required.”

The GCAA defines safety-sensitive employees as a person who might endanger aviation safety if they perform their duties and functions improperly. This definition includes, but is not limited to, technical aircrew, cabin crew, aircraft maintenance personnel, and air traffic controllers.

GCAA requires all organizations (no matter what size) to implement and administer a testing program for psychoactive substances use, which forms part of the organization’s overall health and safety policy. The program must be widely communicated and be available to all aviation personnel with education and training to all levels of the company. “Details of the policy and its implications shall be covered in induction training and include:

(a) Outline who is covered by the policy– it should apply to all staff in the organization in safety sensitive and company positions;

(b) A clear definition of substance abuse and prohibited activities which also addresses the use of drugs (whether prescribed or over-the-counter) for appropriate medical purposes, if the use of such drugs in the workplace poses a risk to aviation safety, to the employee or co-workers;

(c) Consequences of a breach of the policy such as psychoactive substance use should be considered primarily a health issue. An employee in breach of the policy may be considered for rehabilitative treatment. The availability of rehabilitation opportunity is purely company choice or decision;

(d) A disciplinary system for dealing with any breaches;

(e) Any staff involved in the implementation of psychoactive substance use policy is fully trained and are aware of all the issues involved; and

(f) Procedures for psychoactive substances testing”

All operators with safety-sensitive employees are required to establish an ongoing drug-free awareness Drug and Alcohol Testing Program (“Program”).

GCAA’s Civil Aviation Regulations addressing the use of psychoactive substances include:

6.1.1 With respect to medical fitness, CAR Part 11, Chapter 1, paragraph 1.8.1 states:

1.8.1 License holders shall not exercise the privileges of their licenses and related ratings at any time when they are aware of any deterioration in their medical fitness which might render them unable to safely exercise these privileges.

6.1.2 Paragraph 5.3.2 states:

5.3.2 Physical and Mental Requirements

An applicant for any class of Medical Assessment shall be required to be free from:

Any disturbance of consciousness without satisfactory medical explanation of cause – such as would entail a degree of functional incapacity, which is likely to interfere with the safe operations of an aircraft or with the same performance of his/her duties.

Any effect or side-effect of any prescribed or non-prescribed therapeutic or preventative medication taken; such as would entail a degree of functional incapacity which is likely to interfere with the safe operation of an aircraft or with the safe performance of duties.

6.1.3 In accordance with 5.4.2.2. (Class 1 Medical Assessment for the applicants or for holders of commercial pilot licenses, airline transport pilot licenses, flight navigator and flight engineer licenses), 5.5.2.2 (Class 2 Medical Assessment for private pilot licenses and glider and free balloon pilot licenses), 5.6.2.2. Class 3 (Medical Assessment for air traffic controller licenses) and 5.7.2.2, the applicant shall not have an “established medical history or clinical diagnosis of Alcoholism, drug dependence, such as might render the applicant unable to safely exercise the privileges of the license applied for or held.

The applicant shall have no established medical history or clinical diagnosis of any of the following:

b) A mental of behavioral disorder due to use of a psychoactive substances; this includes dependence syndrome induced by alcohol or other psychoactive substances;

6.1.4 In accordance with 1.10, Drug screening is mandatory as part of medical assessment for all classes.

1.10.1 Any license holder shall not exercise the privileges of their license and related rating while under the influence of any psychoactive substance which might render them unable to safely and properly exercise these privileges.

1.10.2 Any license holder shall not engage in any problematic use of substances.

The GCAA requires that a drug screening test shall be conducted as part of the medical assessment for the initial issue of all GCAA licenses and as otherwise required by the GCAA.

6.2.1 Screening Test - The screening shall consist of a urine sample taken by a UAE Aeromedical Examiner and analyzed by a recognized laboratory for amphetamines, barbiturates, benzodiazepines, cannabis, opiates and other psychoactive substances.

6.2.2 Testing For Psychoactive Substances - A holder of a GCAA licence [license] shall submit to a test to indicate the use of psychoactive substances and/or alcohol in the blood as part of a GCAA authorized screening programme [program]. That person, upon request by an authorized GCAA representative, shall furnish the GCAA, or authorize any clinic, hospital, doctor, or other person to release to the GCAA, the results of each test taken. Refusal to submit to drug or alcohol test is grounds for immediate suspension of that person’s licence [license].

6.2.3 Test Information - Any test information obtained by the GCAA under paragraph 1.10.3 above may be evaluated in determining a person’s qualifications for any GCAA licence [license] or possible violations of this Chapter and may be used as the basis for suspension or sanctions against that licence [license] as well as used as evidence in any legal proceeding.

Civil Aviation Regulation covers this subject in article 24, paragraph 7 which states:

No person shall pilot an aircraft or act as a member of its flight crew while drunk or under the influence of a narcotic drug or any other substance which may impair his capacity to effectively perform his duties. In all circumstances, he shall not use any such substances while on Duty.

Note: The GCAA will not license any individual with a medical history or clinical diagnosis of alcoholism and/or drug dependence and is not medically qualified to hold a flight crew, cabin crew or air traffic control license.

Testing for psychoactive substances under GCAA CAR Part includes:

1.6.1 Testing For Psychoactive Substances

A crew member shall submit to a test to indicate the use of psychoactive substances and/or alcohol in the blood when the GCAA has a reasonable basis to believe that a person may have violated the provisions of CAR-Ops 1.085 (e) or 3.055 or as part of a GCAA authorized screening programme [program]. That person shall, upon request by the GCAA, furnish the GCAA, or authorize[authorize] any clinic, hospital, doctor, or other person to release to the GCAA, the results of each test taken. Refusal to submit to a drug or alcohol test is grounds for immediate suspension of that person’s licence [license].

1.6.2 Test Information

Any test information obtained by the GCAA under Paragraph 1.6.1 above may be evaluated in determining a person’s qualifications for any pilot or flight engineer licence [license] or possible violations of this Chapter and may be used as the basis for suspension or sanctions against that licence [license] as well as evidence in any legal proceeding.

Republic of the Philippines Civil Aviation

Authority (Authority)

Authority regulations in regards to psychoactive substances are as follows under CAR 1.21.15:

(a) Any person who performs any function requiring a license, rating, qualification, or authorization prescribed by these regulations direct or by contract for a certificate holder under the provisions of these regulations may be tested for usage of psychoactive substances.

(b) Chemicals considered psychoactive substances are listed in IS 1.2.1.15(a).

(c) Any person subject to these regulations who refuses to submit to a test to indicate the percentage by weight of alcohol in the blood, when requested by a law enforcement officer or the Authority, or refuses to furnish or to authorize the release of the test results request by the Authority may:

(1) Be denied any license, certificate, rating, qualification, or authorization issued under these regulations for a period up to 1 year after the date of that refusal; or

(2) Have his or her license, certificate, rating, qualification, or authorization issued under these regulations suspended or revoked.

(d) Any person subject to these regulations who refuses to submit to a test to indicate the presence of narcotic drugs, marijuana, or depressant or stimulant drugs or substances in the body, when requested by a law enforcement officer or the Authority, or refuses to furnish or to authorize the release of the test results requested by the Authority may:

(1) Be denied any license, certificate, rating, qualification, or authorization issued under these regulations for a period up to 1 year after the date of that refusal; or

(2) Have his or her license, certificate, rating, qualification, or authorization issued under these regulations suspended or revoked.

(e) Any person subject to these regulations who is convicted for the violation of any local or national statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or importation of narcotic drugs, marijuana, or depressant or stimulant drugs or substances, may:

(1) Be denied any license, certificate, rating, qualification, or authorization issued under these regulations for a period of up to 1 year after the date of the final conviction; or

(2) Have his or her license, certificate, rating, qualifications or authorization issued under these regulations suspended or revoked.

(g) Volatile solvents

CAR 2.10.1.7 reads as follows:

(a) Holders of licenses provided for in this Part shall not exercise the privileges of their licenses and related ratings while under the influence of any psychoactive substance which might render them unable to safely and properly exercise these privileges.

(b) Holders of licenses provided for in this Part shall not engage in any problematic use of substances.

(c) Holders of licenses provided for in this Part who engage in any kind of problematic use of substances shall be identified and removed from their safety-critical functions. Return to the safety-critical functions may be considered after successful treatment or, in cases where no treatment is necessary, after cessation of the problematic use of substances and upon determination that the person’s continued performance of the function is unlikely to jeopardize safety.

(d) Random tests for effects of alcohol or psychoactive substances will be conducted by the Authority.

Types of Testing Permitted and Required

ICAO

Under 5.18-5.27, ICAO recommends the following testing:

Pre-employment/pre-transfer (drug only)

Random (psychoactive substances)

Periodical (psychoactive substances)

Reasonable cause/reasonable suspicion

(psychoactive substances)

Post accident/incident (psychoactive substances)

Return-to-Duty (psychoactive substances)

Follow-up (psychoactive substances)

Voluntary (psychoactive substances)

ICAO noted that in general, unless a zero-tolerance standard is applied, pre-employment alcohol testing provides little additional information to help an employer judge an applicant objectively.

GCAA

Under CAAP 51, 8.1.3, circumstances that require testing are:

(a) pre-employment (drugs only)

(b) random testing (drugs and alcohol)

(c) reasonable suspension (drugs and alcohol)

(d) post-accident (drugs and alcohol)

(e) follow-up testing

Under CAAP 51, 9.2, the GCAA noted for all the applicants applying for renewal over 60 years, alcohol screening should be part of the psychological assessment.

Under CAAP 51, 9.7, procedures for reasonable suspicion/reasonable cause testing are:

If an employee is suspected of using illegal drugs and /or under the influence of Alcohol, the appropriate supervisor will gather all information, facts, and circumstances leading to and supporting this suspicion then he is required to get a higher-level approval that is consistent with their organizational structure. When higher-level concurrence of a reasonable suspicion determination has been made, the appropriate supervisor will promptly prepare a written report detailing the circumstances which formed the basis to warrant the testing. This report should include the appropriate dates and times of reported drug/or alcohol related incidents, reliable/credible sources of information, rationale leading to the test, and the action taken.

Note 1: The employee may be asked to provide the urine sample under observation

Note 2: the procedure of testing will follow same procedure used for random testing.

Circumstances for Conducting Drug and Alcohol Testing

For a drug and alcohol program to be found acceptable, the FAA should require that testing be conducted for:

(a) Pre-employment (drugs only)

(b) Random testing (psychoactive substances)

(c) Reasonable suspension (psychoactive substances)

(d) Post-accident (psychoactive substances)

(e) Follow-up testing (psychoactive substances)

All aviation companies should be concerned about the lives of all aviation personnel and the public and the use of psychoactive substances puts all at risk. Therefore, the FAA should allow international 145 operators to implement a program for aviation personnel who want to seek assistance for problematic substance use to submit to voluntary testing. Working is part of everyday life and duties keep people and the economy moving.

ICAO recommends voluntary testing under 5.23 and CAAP 51 6.4 reads:

(b) That the employee will have the opportunity to voluntarily admit to being a user of illegal drugs and to receive counseling or rehabilitation, “in which case disciplinary action is not required;”

Types of Substances Tested For

At a minimum, an acceptable program should require testing for drugs and alcohol under Part 120. In the interest of safety, the minimum testing should mirror ICAO standards and recommendations and the GCAA’s regulations allowing testing for:

• Alcohol

• Opioids

• Cannabinoids

• Sedatives and hypnotics

• Cocaine and other stimulants

• Hallucinogens

• Volatile solvents.

Aviation operators governed by Part 120 should also have to mirror ICAO and GCAA testing for all psychoactive substances.

Random Testing

Per the DOT, ICAO and GCAA, random testing along with its consequences is intended to deter employees from using psychoactive substances and to detect employees who do not refrain from using them.

ICAO recommends random testing and addresses it under 5.24-5.27.

Under CAAP 51, 9.4, random testing is conducted as follows:

9.4.1 Employee Selection.The selection of employees for random drug and alcohol testing can be made by a scientifically valid method such as random number table or a computer based random number generator that is matched with employees’ payroll identification number or other comparable identifying numbers. It is the company’s responsibility to find the best method to perform the random testing.

9.4.2 Annual Percentage Rate for random drug and/or Alcohol testing.The GCAA policy requires that the minimum annual percentage rate for random drug testing shall be 20% of covered employees and the minimum annual percentage rate for random Alcohol testing shall be 20% of covered employees. This applied to all industries with employees in safety sensitive functions.

9.4.3 Implementing Random Testing.In implementing the program of random testing the Drug Program Coordinator shall Ensure that the means of random selection remains confidential; and evaluate periodically whether the numbers of employees tested and the frequency with which those tests will be administered satisfy the company/operator’s duty to achieve a drug-free work force, or achieve the percentage which was determined by the GCAA.

9.4.4 Notification of Selection. An individual selected for random testing, and the individual’s first-line supervisor, shall be notified the same day the test is scheduled, preferably, within two hours of the scheduled testing. The supervisor shall explain to the employee that the employee is under no suspicion of taking drugs and that the employee’s name was selected randomly.

9.4.5 Deferral of Testing.An employee selected for random drug and /or Alcohol testing will not obtain a deferral of testing, if he is in a leave status (annual or administrative), the employee’s first-line and higher-level supervisors will defer the test, and the employee whose random test is deferred will be subject to an unannounced test within the following 60 days.

The Authority allows random testing under CAR 2.10.1.7 (d). Random tests for psychoactive substances are conducted by the Authority.

Testing Methods

Testing methods for psychoactive substances should meet ICAO recommendations and GCAA regulations for all 145 operators domestically and internationally. Part 120 should be amended for domestic operators to meet them as well. Employers should be able to test for all psychoactive substances by blood (the most accurate method per ICAO), breath, follicle, saliva and urine.

Laboratory Standards

Foreign laboratory standards and requirements should meet Part 40 and CAAP 51 regulations. CAAP regulations are follows:

12.1 General -

The purposes for testing necessitate forensic testing as opposed to clinical testing, because it is presumed that results will be attributed to an individual, and adverse consequences may follow a test result indicating that prohibited conduct has occurred. In the development of biochemical testing programs generally, programs meeting forensic requirements are those that have produced test results that are supportable if challenged in court or another legal forum. Forensic testing is characterized by strict procedures to ensure that the specimen tested came from the specified person (the “donor”), that it was not tampered with or adulterated by the donor or any other person, that the results are accurate and that all records are maintained in a secure and confidential manner. The steps necessary to meet forensic/legal testing requirements include chain of custody, which ensures that all specimens are sealed upon receipt from the donor to prevent undetected tampering and that specimens are handled by the minimum number of persons. It is also essential that any transfer in possession, whether to another person or a laboratory or to temporary storage, be documented on a chain of custody document. This document should be a complete and accurate reflection of the history of the specimen. Additionally, to ensure the accuracy and reliability of analytical procedures, devices used in testing shall be properly calibrated, maintained and operated. Complete records documenting the history of any analytical device shall also be kept. Finally, it is vital that appropriate procedures be instituted by an organization with technical expertise to ensure the accuracy and reliability of any analytical devices and protocols. Laboratories that will perform workplace testing should be required to undergo certification by the Ministry of health/DOH and GCAA. These are only a few of the requirements for an acceptable forensic program Quality control and quality assurance procedures should be developed for all testing, and employers and/or regulators should monitor compliance with these procedures. GCAA should consider inspecting any laboratory that might be selected to analyze employees’ specimens. Not only will this provide the GCAA an opportunity to ensure that the specimens will be properly handled, it will increase employee confidence in the program.

Chain of Custody

Per CAAP 51, chain of custody a monitoring process to prevent tampering with the sample or the results which begins with collection of the sample and continues through the final reporting of test results to clients.

CAAP 51 states:

Sealing of sample containers, transport and control of samples, receipt of samples by the laboratory, and supervision of lab tests remain under strict discipline throughout the chain of custody. Authorized signatures are required at each step. Laboratory results can be effectively challenged in court if there are weak links in the chain. Standards regulate the handling, analysis, and collection of samples if they are intended to be admissible in a court of law. Transfer of urine, blood, or saliva from the subject to the container shall be witnessed. For example, if a person is taken to a physician for a blood sample, the physician becomes the first link in the chain of custody. Few physicians understand the legal chain of custody procedures. Unless otherwise instructed, they will usually follow clinical laboratory standards, which will not stand up to challenge by a knowledgeable attorney. The person collecting the blood sample shall be able to testify regarding the collection procedure. Likewise, the person collecting the sample shall be able to testify to the accuracy of the container label, including the subject’s name and other identifying information, such as date, time of the collection, and type of collection receptacle. The chain of custody shall be maintained until the specimen reaches the laboratory and through the confirmation of initial results.

Similar to Part 40, the GCAA mandates the use of an approved Custody and Control Form (CCF) to document the collection of a specimen at the collection site. The CCF is usually supplied by the testing lab. This form should provide an original plus four copies:

Original to the GCAA file

Copy 1- to the laboratory with specimen.

Copy 2- to the MRO within 24 hours.

Copy 3- to the DER within 24 hours.

Copy 4- to the donor after CCF is complete and bottles are packaged.

Measures to Determine a Legitimate Medical Explanation for a Positive Result

Measures to determine a legitimate explanation for a positive psychoactive substances result should follow CAAP 51, 11.7:

When a confirmed positive result has been returned by the laboratory, the Medical Review Officer shall perform the duties set forth in these Guidelines. For example, the Medical Review Officer may choose to conduct employee medical interviews, review employee medical history, or review any other, relevant biomedical factors. The Medical Review Officer shall review all medical records made available by the tested employee when a confirmed positive test could have resulted from legally prescribed medication. Evidence to justify a positive result may include, but is not limited to:

(a) A valid prescription; or

(b) A verification from the individual’s physician verifying a valid prescription.

If the Medical Review Officer determines there is no justification for the positive result, such result will then be considered a verified positive test result. The Medical Review Officer shall immediately contact the Supervisor and appropriate management official upon obtaining a verified positive test result; to recommend or take administrative action.

MROs should not be allowed to serve as Designated Employer Representatives.

Certification of Laboratories

A program should be acceptable as long as its governing authority has certification requirements and inspections similar to DHHS. The GCAA and Authority have certified laboratories to conduct testing very similar to DHHS certification requirements.

Minimum Standards for Return-to-Duty

Minimum standards for return-to-duty should require an aviation personnel who has tested positive or refused to take a psychoactive substance test be evaluated by a Substance Abuse Professional prior to returning to a covered or company position and must successfully pass a return-to- duty test. The aviation personnel must complete the education and/or treatment as determined by the SAP. The SAP should determine follow-up testing scheduling, times and number of testing.

Minimum requirements should require aviation personnel to meet face-to-face with the SAP for clinical assessment and evaluation. Then, the SAP should refer the aviation personnel to the appropriate program for education and/or treatment. Next, the SAP should conduct another face-to-face meeting with the aviation personnel for follow-up evaluation to determine the aviation personnel actively participated in the program and demonstrated successful compliance. The SAP must confirm the aviation personnel complied. The SAP will then give the employer the schedule for follow-up treatment and testing. The Company will receive the SAP’s initial evaluation and follow-up evaluation.

Follow-up Testing

Follow-up testing should be allowed and mandated in the interest of the safety of the company, individual, co-workers and the public. Follow-up testing should be determined by the SAP.

Program Managers

Drug and Alcohol Testing Programs that are mandated by Part 120 and CAAP 51 are inspected and regulated by the FAA and GCAA respectively.

EASA (and all authorities it governs), TCAA, CAA Philippines and CAA Germany allow voluntary programs based on ICAO recommendations and standards. Annual self-regulation should be required at the minimum.

Consequences of Violating Drug and Alcohol Testing Programs

In Chapter 4 of ICAO’s manual, recommended consequences of violating drug and alcohol testing programs include:

• Immediate termination of employment

• Temporary removal pending evaluation

• Disciplinary action

• Treatment and rehabilitation

• Conditional or unrestricted return-to-duty

Consequences of violating the CAAP 51 include:

• Any aviation personnel who refuses to submit to a required psychoactive substance test or who receives a verified positive, adulterated or substituted test result must be immediately removed from safety-sensitive functions.

• Any aviation personnel who receives a verified positive drug test or refuses to submit to drug testing will be removed from safety-sensitive functions and reported to the GCAA.

• Any aviation personnel who receives an alcohol test result over .02 will be immediately removed from a safety-sensitive function.

• Any aviation personnel who receives a verified positive alcohol test prior to, performing or ready to perform company functions/training or refuses to submit to testing may be terminated/dispelled and safety-sensitive employees will be reported to the GCAA.

Under CAAP 51, the GCAA may revoke licenses for a violation.

Under the Authority’s CAR 2.10.1, holders of licenses who engage in any kind of problematic use of substances shall be identified and removed from their safety-critical functions. Return to the safety-critical functions may be considered after successful treatment or, in cases where no treatment is necessary, after cessation of the problematic use of substances and upon determination that the person’s continued performance of the function is unlikely to jeopardize safety.

Reporting to Law Enforcement

Employers and the GCAA and Authority may report individuals testing positive for psychoactive substances to law enforcement.

Reasons Safety-Sensitive Personnel Should be Subjected to Psychoactive Substances Testing

Safety of aviation operations should always be the first priority of all aviation personnel and the cornerstone of all aviation operations. The aviation industry is one of the most highly regulated industries in the world because of the potentially catastrophic consequences of unsafe operations and it puts the public at risk.

Testing programs should focus on the effect of safety by problematic use of psychoactive substances and not on the legality, morality or religious concerns of using such substances.

Use of psychoactive substances by individuals as it affects the entire aviation industry and the public. Individuals use of psychoactive substances, whether on or off duty can affect and detract from an aviation personnel’s performance, efficiency, safety and health, seriously impairing an aviation personnel’s judgment. In addition, the use or possession of psychoactive substances or over-the-counter medications on or off duty constitutes a potential danger to the welfare and safety of the individual, other aviation personnel and the public and exposes the companies to the risks of injury to aviation personnel or other persons and property loss or damage and liability.

Type of Testing Required

ICAO recommended and GCAA mandated:

Pre-employment

Random

Reasonable cause/reasonable suspicion

Post accident/incident

Return-to-Duty

Follow-up

Voluntary

Testing Allowed

ICAO recommends testing as listed above. The GCAA allows testing of all aviation employees and is not limited to safety-sensitive employees for all psychoactive substances by blood, breath, follicle, saliva and urine. Company Authority also allows the same unless excluded by a union or collective bargaining agreement.

Implementing and Enforcing Drug and Alcohol Testing Programs

JetSeat can customize drug and alcohol/psychoactive testing programs to comply with any country’s regulations. It currently offers mandatory programs for companies in the USA and UAE. It also offers a voluntary Company Authority programs for companies governed by the Authority, DOT and non-regulated DOT companies. JetSeat offers guideline manuals, testing programs and training for supervisors and employees.

Costs of Implementing and Administering a Drug and Alcohol Testing Program

The costs of implementing and administering a drug and alcohol testing program per company purchased by JetSeat are as follows (all pricing is in US Dollars):

Master Guideline Manual License $4,500

Additional licenses for supervisors $ 100 per license

Master Drug and Alcohol Testing Program $4,500

Additional licenses for employees $ 100 per license

Supervisor (initial and recurrent) training class $3,500 per class* (whether 1 or more individuals)

Employee (initial and recurrent) training class $2,500 per class* (whether 1 or more) individuals

Day travel rate $ 800 per day

Air fare, hotel, transportation, per diem, TBD based on company’s location and miscellaneous expenses

*Includes syllabus, test, test with answer key and certificate of completion of training

Travel for training supervisors would be from Dallas, Texas to the appropriate city and country. Training for supervisors is approximately 6-8 hours and for employees 4-6 hours.

JetSeat recommends initial and annual recurrent training and education for all supervisors and employees.

CAAP 51 requires employers to provide drug and alcohol training and education to all personnel.

It took JetSeat’s President approximately five months to create international and domestic mandatory and voluntary (“Company Authority”) drug and alcohol testing programs. Ms. Hedrick researched international standards, recommendations and regulations for her client that has operations in the UAE and the Philippines. Time was invested in research, writing the guideline manuals, programs, training courses, educational materials, safety signs, etc.

Training Materials Required

To implement and administer a drug and alcohol testing program, Jet recommends:

• Guideline Manual with educational materials, safety information and forms (proprietary)

• Drug and Alcohol Testing Program with materials, safety information and forms (proprietary)

• Supervisor and Employee Training Courses (proprietary):

• Syllabuses

• Educational materials

• Test with keys answers

• Certificate of Completion

Part 120 should be amended to allow voluntary testing.

Authority Approval

CAAP 51 programs must be submitted, approved, registered and renewed annually with the GCAA. GCAA requires Anonymous Statistical Data reporting as follows:

(a) Random tests, reasonable suspicion tests, accident or unsafe practice tests, follow-up tests, or applicant tests administered;

(b) Verified positive test results;

(c) Terminations or denial of employment offers resulting from refusal to submit to testing;

(d) Terminations or denial of employment offers resulting from alteration of specimens:

(This data along with other pertinent information must be compiled for inclusion in the Company’s annual report to the GCAA LIC (MED) Form 21. This data shall also be provided to the Aeromedical section semi-annually to assist in overall program evaluation and to determine whether changes to the mandatory guidelines may be required by the GCAA. Annual percentage rate includes all random positive, random, negative and refusal results.)

For EASA, TCAA, CAA Germany and CAA Philippines are all voluntary programs and would be self regulated.

Company Administrators

Designated Employer Representatives serve as the administrators and maintain the required documents. Companies may utilize MROs or Consortium/Third Party Administrators to assist in implementing programs. Mandatory programs would be filed with the appropriate governing agency. MROs or C/TPA should not be allowed to serve as DERS.

International Compatibility

International compatibility can be established for Drug and Alcohol Testing Program world-wide. ICAO based much of its manual on Part 40 and Part 120. ICAO expanded drugs to include all psychoactive substances (whether legalized or not in any country) and the way civil aviation authorities and aviation companies may test. The GCAA based its regulations on DOT, FAA and ICAO regulations and recommendations.

Conclusion

In the interest of safety, the FAA should amend Part 120 to require international 145 operators to implement and enforce Drug and Alcohol Testing Programs to prevent accidents and injuries resulting from the use of psychoactive substances by all aviation personnel, contractors and volunteers.

It is the goal of JetSeat, LLC’s Guideline Manual for Drug and Alcohol Testing Program is to educate operators they are entitled to implement and enforce the programs and to provide guidance in administrating the programs.

As discussed above, ICAO encourages its member states to implement and administer drug and alcohol testing programs. Of all of Authority representatives that were contacted by JetSeat, all agreed programs based on ICAO’s standards and recommendations would be a great idea.

The use of psychoactive substance should not be viewed as religious, moral or legal beliefs. It should be based on safety. Safety should be the number one priority of all aviation operators and personnel with it being the cornerstone of any operation.

Lastly, drug and alcohol programs should be required by any international 145 repair station providing maintenance to any 121 air carrier. It should be expanded by the FAA to include Part 135 and Part 91 operators, as well as Part 121 operators. All operators have responsibility for the safety of their operations to themselves, employees and the public.