A mechanic recently found himself on the wrong end of an emergency revocation order when he was ordered to submit to a random drug test but then failed to appear for the test. In Administrator v. Hendrix, the FAA issued an order revoking the airman’s mechanic certificate with airframe and powerplant ratings based upon a finding that the mechanic refused to submit to the testing. The mechanic appealed the order and subsequently admitted the FAA’s principle allegations in his responses to the FAA’s discovery requests. The FAA filed a motion for summary judgment arguing that no material issues of fact existed and that it was entitled to a judgment affirming the emergency revocation order. The ALJ agreed and affirmed the FAA’s order.
On appeal to the full Board, the mechanic argued that his termination of employment (apparently he quit after being directed to report for testing but before he reported to the testing center) removed him from the scope of 49 C.F.R. 40.191, which refers to “employee” and “employer.” Thus, the mechanic argued, he was not required to submit to the drug test and, therefore, did not refuse when he failed to appear for the test. The Board took little time rejecting this argument. It held that “[h]e was an employee at the time he was directed to submit to random drug testing; he was therefore required to submit to the test. What he did after the directive to the drug testing center has no bearing on his regulatory duty to submit a urine specimen for testing.”
I am not surprised by this decision. If the Board were to agree with the mechanic’s argument, this would create a huge loophole in random drug testing compliance because any employee who was smart enough to know that he or she had a risk of a positive test (and granted, not all employees who would test positive are that smart) would simply quit after receiving the the random drug testing directive. These employees would be able to circumvent the random drug testing requirement and merely have to start looking for another job in the aviation industry, rather than losing their airmen certification and being precluded from continuing to work in the industry at all.