If you are an aviation employer who employs safety sensitive employees, you know 14 C.F.R. § 120.109(d) requires that you drug test an employee when you reasonably suspect that employee of having used a prohibited drug. Similarly, 14 C.F.R. § 120.217 requires an employee to submit to an alcohol test when the employer reasonably suspects the employee of misusing alcohol contrary to 14 C.F.R. § 120.37. In order to make that decision, you must have a reasonable and articulable belief that the employee is using a prohibited drug. To do that, you need to look at the employee’s specific contemporaneous physical, behavioral, or performance indicators of probable drug or alcohol use. But what does this really mean? Well, fortunately, the FAA has a form for that!
The FAA has a “Reasonable Cause/Reasonable Suspicion Testing Form” employers may use to not only assist with making the reasonable cause/suspicion determination, but also to document that determination once made for the employer’s file. The Form includes a number of categories for the types of observations an employer must make in order to determine whether reasonable cause/suspicion exists for the employer to require an employee to submit to a drug or alcohol test. The categories include:
- Motor Skills;
- Speech; and
Within each of these categories, the Form also provides a number of “check the box” choices for characteristics/behaviors that are indicative of drug or alcohol use. The employer simply needs to make the observations, check the corresponding boxes, and then make the decision whether sufficient indicia are present to support conducting a test. The Form includes 48 different observations an employer may make that would support conducting a reasonable cause/suspicion drug or alcohol test.
Employers are not required to use the Form. However, the Form provides an easy way to not only make the determination, but also to document and record the basis for the determination. And, as we all know, keeping appropriate drug and alcohol testing program records is both required and necessary to keep the FAA happy if/when it decides to audit your program.