The NTSB recently reviewed some of the procedural requirements of drug testing regulations in Administrator v. Flores. After testing positive for marijuana, the FAA issued an order revoking the airman’s first-class medical certificate pursuant to FARs 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2). The airman appealed the order and, after a hearing, the ALJ found that the positive drug test disqualified the airman from holding a medical certificate and he affirmed the FAA’s order of revocation. The airman then appealed the ALJ’s decision to the full Board arguing that the positive test result was invalid because the “administration of the test and collection of the urine specimen, and subsequent chain of custody of the specimen, were contrary to DOT regulations regarding drug tests.”
Initially, the Board summarized the specific procedural requirements under 49 C.F.R. Part 40that were established to ensure the authenticity of specimen samples and the accuracy of the results from drug tests on such samples. The regulations require that the person collecting the specimens effectively restrict access to the collection materials and specimens, secure the facility against access during the procedure and keep an employee’s collection container within view of both the collector and the employee between the time the employee has urinated and the specimen is sealed. The regulations also require collectors to prevent unauthorized personnel from entering any part of the site in which urine specimens are collected or stored.
The Board then observed that “a de minimus procedural violation may not automatically render a drug test result invalid.” Further, once the FAA has presented a prima facie case on the authenticity of the specimen and accuracy of the test, the airman is then required to present circumstantial or other evidence which would support a finding that the integrity of the specimen was somehow compromised.
In this instance, the Board determined that the FAA had presented a prima facie case and the airman had failed to produce any evidence or to even allege that someone compromised the integrity of his specimen. He merely argued that the slight deviations from procedure in and of themselves invalidated the test. The Board concluded that the collector had essentially complied with the testing regulations and, as a result, the positive drug test was valid and disqualified the airman from holding a medical certificate.
