DOT And FAA Provide Guidance, But No Relief, To Aviation Employers Facing COVID-19 Drug And Alcohol Testing Issues

Department of Transportation (“DOT“) drug and alcohol testing is still required during the COVID-19 pandemic  However, both the DOT and the Federal Aviation Administration (“FAA“) recently issued guidance to aviation employers who are required to conduct testing.

In both cases, the guidance indicates that it is sympathetic to the drug and alcohol testing challenges faced by aviation employers as a result of COVID-19. Unfortunately, their guidance isn’t particularly helpful, nor does it appear to provide any relief to employers.

ODAPC Guidance

As aviation employers should be aware, DOT has issued regulations governing how to conduct testing is found in 49 C.F.R. Part 40.  The DOT’s Office of Drug and Alcohol Program Compliance (“ODAPC”) issued its “DOT Guidance on Compliance with DOT Drug and Alcohol Testing Regulations.”

ODAPC’s guidance recognizes that compliance may be difficult, or even impossible, due to the unavailability of collection sites, Breath Alcohol Technicians, Medical Review Officers  or Substance Abuse Professionals.  Although employers must make a reasonable effort to locate the necessary resources, the guidance states

[i]f you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed.

ODAPC also suggests that employers should determine whether flexibilities allow for collection and testing at a later date, provided that this can be done in compliance with the regulations.

In the context of a potential refusal, ODAPC asks employers “to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites.” And as we know, employers are ultimately responsible for determining whether an employee has refused to be tested. As a result, perhaps a refusal situation presents a limited opportunity for the employer to take into consideration the impact of the current crisis?

But ODAPC is also clear that if an employer is unable to conduct testing, it must still comply with the applicable regulations relating to the testing to be conducted.  And as with most regulatory guidance, ODAPC concludes

[t]his guidance document does not have the force and effect of law and is not meant to bind the public in anyway.  This guidance is intended only to provide clarity regarding existing requirements under the law.

So, while ODAPC appears to be somewhat sympathetic to the drug and alcohol testing complications caused by the COVID-19 pandemic, at the end of the day aviation employers are still required to comply with the drug and alcohol testing regulations.

FAA Guidance

In addition to DOT regulations, employers are also bound by FAA regulations in 14 C.F.R. Part 120.  These regulations explain who gets tested and when, along with drug and alcohol-related training requirements.

The FAA has issued guidance addressing “Disruptions to Drug and Alcohol Testing Due to COVID-19“.  While this guidance more specifically addresses aviation employers, it is only a little more helpful than ODAPC’s guidance.

The FAA initially notes that it “is committed to maintaining aviation safety while providing maximum flexibility to allow the aviation industry to conduct operations safely and efficiently during the national emergency related to COVID-19.” The guidance then addresses several specific aspects of drug and alcohol testing for FAA regulated employers.

• Random Testing. Employers should still try to perform random selections and testing on at least a quarterly basis. However, if an employer is unable to perform random tests during the current testing cycle, the employer should make up the tests by the end of the year to achieve the required testing percentages. VERY IMPORTANT: An employer in this situation should document in writing (1) what actions the employer took to locate an alternative collection site or other testing resources, and (2) the specific reasons why the employer was unable to conduct tests on employees who were selected. If the employer is later audited, this documentation will give the employer a basis to argue that it made good faith efforts to comply and could, perhaps, mitigate any potential violation and/or sanction.
• Pre-Employment Testing. No changes or exceptions here. If an employer is unable to conduct a pre-employment drug test and obtain a negative result, then the employer may not hire or transfer an individual into a safety-sensitive position. If an employee is furloughed and removed from the random testing pool, the employer may conduct a pre-employment drug test of the employee prior to returning the employee to the random pool.
• Return-to-Duty Testing. No changes or exceptions here. An employer may not allow a safety-sensitive employee to return to perform any safety-sensitive functions until the return-to-duty test is conducted and a negative result is received.
• Follow-Up Testing. If follow-up drug or alcohol testing cannot be completed due to an employee being furloughed, his or her follow-up testing plan stops during the extended absence. The follow-up testing plan would restart when the employee returns to work, either for the employer or for a subsequent employer
• Employee Refusal. Similar to the ODAPC guidance, the FAA suggests employers should be “sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites.” Unfortunately, this doesn’t really provide any guidance for an employer who is responsible for determining whether an employee has refused testing. However, perhaps employers may take the FAA’s suggestion into consideration. But at the end of the day, the FAA reminds employers that a refusal is still a violation of FAA regulations.

And, not surprisingly, just like ODAPC the FAA includes a disclaimer stating that its guidance

is not legally binding in its own right and will not be relied upon by the FAA as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this guidance, as distinct from existing statutes, regulations, and grant assurances, is voluntary only, and nonconformity will not affect existing rights and obligations.

As a result, aviation employers are still responsible for compliance with the drug and alcohol testing regulations.

Conclusion

While the ODAPC and FAA guidance appears to be intended to assist aviation employers with their drug and alcohol testing obligations, their guidance fails to provide concrete answers. The two take-aways for aviation employers are (1) document in detail any circumstances that result in an inability to comply with the regulations, and (2) even in the midst of a pandemic, aviation employers are still responsible for compliance with the drug and alcohol testing regulations.