In a recent NTSB opinion, the Board affirmed the FAA’s revocation of an airman’s ATP and First Class Medical certificates based upon a failed drug test. In Administrator v. Kalberg, the airman operated a flight on behalf of UPS to Anchorage, Alaska. Upon arrival, the airman was required to submit to a random drug test. The airman tested positive for having marijuana in his system. Subsequently, the FAA initiated an emergency revocation of the airman’s certificates and the airman appealed.
At the hearing before the administrative law judge (“ALJ”), the airman argued that the most probable explanation for his positive test result was that he inadvertently ingested marijuana “by virtue of smoking several ‘house’ cigars he had recently purchased while on a family vacation in Aruba.” However, the ALJ did not find this explanation credible and affirmed the emergency revocation. The airman then appealed the ALJ’s decision to the full NTSB.
The airman argued to the full Board that his testing positive for marijuana “was not the result of knowing or intentional conduct”. The Board initially rejected the airman’s argument based upon the premise that it was required to defer to the ALJ’s negative credibility determination regarding the airman’s claim because the airman had provided no evidence to show that the ALJ’s determination was arbitrary or capricious.
The Board went on to note that under the DOT drug testing requirements in 49 C.F.R. § 40.137, “the medical review officer (MRO) must verify a confirmed positive test result unless the employee presents a legitimate medical explanation for the presence of drugs found in his system” and that DOT drug testing requirements in 49 C.F.R. § 40.151 “specify that explanations by an employee of “inadvertent” or “passive” ingestion of drugs do not constitute a legitimate medical explanation that can be considered by an MRO as a basis to not verify a positive drug test result.” As a result, even if the the airman’s explanation of the reason for the positive drug test were to be believed, that explanation would not prevent verification of a positive drug test.
It should go without saying that this case is yet another example of the fate an airman tempts if he or she chooses to smoke or ingest marijuana. However, what may not be as apparent is the risk an airman takes by simply being around other people who may be smoking marijuana. Passive exposure to marijuana can result in testing positive and is equally hazardous to the airman. If an airman finds him or herself in this situation, an immediate departure is probably the best bet.
