This issue came up recently when the FAA’s drug abatement office audited a Part 135 air carrier’s drug and alcohol testing program. After the audit, the FAA initiated a civil penalty action against the air carrier claiming it did not include all of its safety-sensitive employees in the random testing pool. So, to help other employers who are required to have a DOT drug and alcohol testing program, I thought it might be helpful to discuss when an employer (whether air carrier, repair station, manufacturer etc.) must add an employee to its DOT random drug and alcohol testing pool.
Who Must Be Added To The Random Testing Pool?
According to 14 C.F.R. §§ 120.105 and 120.215, an employee who is performing safety-sensitive duties for the employer must be included in the random drug/alcohol testing pool. So, who is considered an employee? Whether hired directly or by contract, Section 120.7(h) states that an employee is an individual who performs a safety-sensitive function on behalf of the employer. Safety-sensitive functions include when an employee perform the duties of flight crewmember, flight attendant, flight instruction, maintenance duties, even if the employee is in a training status. Thus, if an individual is performing safety sensitive duties on behalf of the employer, then that individual is an employee who must be included in the employer’s DOT random testing pool.
When Must An Employee Be Added To The Random Testing Pool?
In order to answer this question, we need to understand what it means to be “performing” safety-sensitive duties. According to Section 120.7(k), an employee is “performing” safety-sensitive duties when he or she is “actually performing, ready to perform, or immediately available to perform” safety sensitive duties.
“Actually performing” is fairly obvious – if the employee is flying or turning a wrench or providing flight instruction etc. on behalf of the employer, for example, then the employee is “actually performing” safety-sensitive duties. But what does it mean for an employee to be “ready to perform” or “immediately available to perform”?
For example, what if an employee trains and becomes qualified to perform duties under the employer’s certificate, but he or she is only assigned to perform duties under 14 C.F.R. Part 91? Well, the FAA would likely say the employee is ready to perform because the employee is qualified and authorized to perform the safety sensitive duties under the employer’s certificate. From the FAA’s perspective, because the employee is qualified and authorized, he or she “could be” assigned to perform safety-sensitive duties under the employer’s certificate even though the employer has chosen not to do that.
But what if that same employee’s Part 91 assignments would leave no time for him or her to perform duties under the employer’s certificate? Would the employee still be “ready to perform” or “immediately available to perform”?
It is certainly possible to argue that the employee is not “immediately available to perform” because the employee couldn’t perform duties under the employer’s certificate if he or she wanted to due to lack of time. These same circumstances may also support an argument that the employee was not “ready to perform” either, even though the employee was otherwise qualified and approved to perform duties under the employer’s certificate.
Conversely, it is also important to understand that an employee who is hired to strictly perform duties in connection with Part 91 flights or operations, and is not otherwise qualified to perform duties under the employer’s certificate, is not subject to DOT drug and alcohol testing and should NOT be included in the random pool.
Unfortunately, whether an employee was “ready to perform” or “immediately available to perform” safety-sensitive duties is an issue that will ultimately depend upon the facts and circumstances of each case. But we also know the FAA will, more often than not, take the conservative approach and require that the employee be included in the employer’s DOT random pool.
What’s An Employer To Do?
So, what should an employer do to make sure it is complying with the regulations? For starters, if the employee is actually performing safety-sensitive duties or is qualified to perform those duties on behalf of the air carrier, then include the employee in the pool. That’s an easy one.
Next, if the employee is qualified but is only performing non-certificate assignments for the employer (e.g. Part 91 flying or maintenance), and for some reason the employer does not want to add the employee to the random pool, then it is imperative to properly document the employee’s assignment. The employer will need to have the facts to argue and prove that the employee was not “ready to perform” or “immediately available to perform.” In the absence of that documentation, the air carrier should simply include the employee in the pool.
In most situations, it will not be difficult to determine whether an employee is performing safety-sensitive functions and should be included in the random pool. However, in certain circumstances it may not be as clear.
If you have questions about whether an employee should be included in the pool, what documentation would be helpful to support a decision not to include the employee in the pool, or if you end up in a dispute with the FAA over whether an employee should or shouldn’t have been in the pool, let me know and I will be happy to help.
The information contained in this web-site is intended for the education and benefit of those visiting the Aero Legal Services site. The information should not be relied upon as advice to help you with your specific issue. Each case is unique and must be analyzed by an attorney licensed to practice in your area with respect to the particular facts and applicable current law before any advice can be given. Sending an e-mail to Aero Legal Services or Gregory J. Reigel does not create an attorney-client relationship. Advice will not be given by e-mail until an attorney-client relationship has been established.