The FAA posted guidance on what an employer needs to do in reference to drug & alcohol testing due the COVID-19 national emergency

The FAA posted guidance on what an employer needs to do in reference to drug & alcohol testing due the COVID-19 national emergency:


The Federal Aviation Administration (FAA) 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.
Please click on this link to access information provided by the Department of Transportation’s (DOT) Office of Drug and Alcohol Policy Compliance (ODAPC), about the impact of the COVID-19 national emergency on DOT drug and alcohol testing requirements for employers, employees, and service agents.
In addition to the ODAPC guidance, the following is further information specifically related to the FAA’s testing requirements.
For FAA-Regulated Employers:
  • Random Testing – You are required by 14 CFR §§ 120.109(b) and 120.217(c) to ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. DOT guidance further recommends that you perform random selections and tests at least quarterly. If due to disruptions caused by the COVID-19 national emergency, you are unable to perform random tests during the current testing cycle, you should make up the tests by the end of the year in order to achieve the required 25% rate for drug testing and 10% for alcohol testing. You should document in writing what actions you took to locate an alternative collection site or other testing resources, and the specific reasons why you were unable to conduct tests on employees who were selected. For more information, please review the FAA’s Random Drug and Alcohol Testing Program Guidance Alert and Frequently Asked Questions.
  • Pre-Employment Testing – If you are unable to conduct a pre-employment drug test and obtain a negative result, in accordance with 14 CFR § 120.109(a), then you are prohibited from hiring or transferring an individual into a safety-sensitive position. The same is true if you conduct pre-employment alcohol testing in accordance with 14 CFR § 120.217(a). There are no exceptions for these provisions. If you furlough an employee and remove the employee from the random testing pool, you are permitted under 14 CFR § 120.109(a)(4) to conduct a pre-employment drug test of the employee prior to returning the employee to the random pool. For more information and best practices, please review our Frequently Asked Questions on extended absences.
  • Return-to-Duty Testing – In accordance with 14 CFR §§ 120.109(e) and 120.217(e), you must not allow a safety-sensitive employee to return to perform any safety-sensitive functions, as defined in 14 CFR §§ 120.105 or 120.215, until the return-to-duty test is conducted and you have a negative result.
  • Follow-Up Testing – If follow-up drug or alcohol testing cannot be completed in accordance with 14 CFR §§ 120.109(f) and 120.217(f) due to an employee being furloughed, his or her follow-up testing plan stops during the extended absence. According to 49 CFR § 40.307(e), the follow-up testing plan follows the employee to subsequent employers or through breaks in service. If you furlough an employee, the employee’s follow-up testing plan would stop, and the testing plan would restart once the employee returns to work.
  • Employee Refusal – As a reminder, the employer is responsible for evaluating the circumstances of what may be considered an employee’s refusal to test and determining whether or not the employee’s actions should be considered a refusal as per 49 CFR §§ 40.191 or 40.261. A refusal is a violation of FAA regulations under 14 CFR part 120, subpart C or subpart D. However, as the COVID-19 outbreak poses a novel public health risk, employers are asked to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites.
For FAA-Regulated Employees:
Please follow the DOT guidance, as reiterated below:
  • If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
  • If you have COVID-19-related concerns about testing, you should discuss them with your employer.
The guidance here 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.
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