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Failure to communicate

The rules are clear, if you know them

“What we have here is a failure to communicate.” The classic line from the movie Cool Hand Luke illustrates something that all pilots should clearly understand regarding drug testing as described in FARs 61.15 and 61.16 (and in DOT 49 CFR Part 40).

Here’s the rest of the story. A young professional pilot was sent for pre-employment drug screening. The pilot reported to the testing center, but unfortunately, he was unable to produce the requisite 45-ml urine sample. The test administrator said it wasn’t sufficient and he should try again. The pilot replied that he had another appointment, and the test administrator ambiguously told him leaving would constitute “a refusal,” but did not clearly explain what that meant. She also implied that if the pilot returned to the employer, the employer could reissue the test request. The pilot left the testing center without completing the testing.

The FAA decided to revoke all the pilot’s certificates.

The NTSB serves as a court of appeals for airmen when the FAA takes certificate action against them. Below are excerpts from the NTSB administrative law judge’s hearing with an FAA attorney questioning the test administrator:

FAA attorney: OK. So, do you recall telling him that he could leave and come back?

Test administrator: No, because I had to contact the company and—and I believe I let him know that he would have to get a whole new form from the job because once you do a refusal on one form, we can’t pull that up again…

Obviously, pilots must not fly after ingesting alcohol or illegal drugs. A violation means almost certain revocation of all your pilot and/or mechanic certificates. The FAA has stated that they prefer compliance over enforcement, but there are exceptions. You may be interested in how this system worked in the case of a pre-employment drug screen and the NTSB’s role in adjudication mentioned in the September 2022 issue of AOPA Pilot (“For the Record: FAA versus NTSB”).

FAA: All right. So there—so there’s no way that he could have come back another time to continue that test?

Administrator: Only if he would have gotten another form from his employer.

For starters, because the pilot reported to the testing center most people wouldn’t consider it a “refusal” to test. But refusal has other definitions in regulatory parlance. If you begin the test and leave before it’s finished, that is considered a refusal. If the pilot hadn’t reported, he wouldn’t have gotten the job, but there would have been no certificate action. If the pilot had realized he would not be able to urinate before starting the test, he would have been able to leave and come back when he was ready. The regulations make it clear that leaving prior to starting the test is not a refusal.

But there’s more. The rules require the collector to inform a pilot they can stay and try again: “The collector must urge you to drink 40 ounces of fluid over a three-hour period until you provide a sufficient amount of urine, or the three-hour time period has elapsed.” The transcript is telling: The NTSB’s administrative law judge quizzed the test administrator on how she explained the “shy bladder” procedure. This doesn’t fit my definition of “must urge.”

ALJ: Did you explain the shy bladder process to Mr. X?

Test administrator: I—you know, honestly, I don’t—I don’t remember. I believe so, but I just know that he said that he was unable to stay. He could not drink any water; he was unable to stay.

ALJ: He told you he was unable to drink water?

Administrator: Oh, I’m not sure. I don’t know if he told me he was unable to drink water, but he just let me know that he was unable to stay any longer.

The board, looking at the facts in the case, unanimously determined that the pilot had not been properly informed of the shy bladder procedure, as required. We reduced the sanction to a six-month suspension—not exactly a slap on the wrist. Both the pilot and the FAA appealed to the circuit court, which reversed the board saying that we did not give proper deference to the FAA’s choice of sanction. There was little choice but to defer to the court. The pilot lost all his certificates from ATP on down.

Under protest I voted to approve, and my countervailing remarks are a matter of public record. That said, attempting to circumvent properly administered drug testing is, and should be, a revocable offense. I also submitted comments to the Department of Transportation and the FAA suggesting that all this could be clearer if, when someone reports for a test, they are given a document that defines refusal and the “shy bladder” procedure, including the sanctions. The pilot or mechanic and the test administrator should sign so that all are on the same page. No more excuses for failure to communicate.

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