Commercial operators under FAA guidance are required by 14 CFR Section 120 to establish and operate drug testing programs for “all individuals who perform, either directly or by contact, a safety-sensitive function” that is certainly interpreted to include the duties of pilot or required flight crew.
But when it comes to flight training providers—think flight instructors—there is a hiccup. Part 120 doesn’t necessarily apply because 14 CFR 119.1(e)(1) and (3) expressly exclude the operations of student instruction and ferry or training flights as being applicable under Part 119, of which Part 120 applies.
I know this sounds confusing, but the gist is that under FAA guidelines it can be argued that a drug testing program is not required to be maintained by flight training providers. Some do, but many don’t. The fact that it is not FAA required for these operations doesn’t mean that an employer is not able to institute a drug testing requirement, program, or random tests.
Some flight training providers have been reluctant to implement drug testing requirements for their staff and/or contractors who operate their aircraft in flight training operations. They fear that they could be sued for wrongful termination if they decided to fire an employee who tested positive for any narcotics, even if they were not found to be operating the aircraft directly under the influence.
While not a lot has been said in the field of aviation, this debate has gotten more press as many states have begun legalizing marijuana for medical and recreational purposes. A commonly made argument from current or potential employees is that what they do on their own time is their business in the states that allow legal use of substances such as marijuana.
Regardless of your personal opinions on the legalization and use of marijuana at a state level, under current legislation, use of many substances—marijuana included—is still federally illegal. As an employer, this means that you can refuse to hire someone, fire an employee, or terminate a contract with a contractor who breaks this law and fails a drug testing program that is established at your operation.
“Under federal law, marijuana is considered a Schedule I substance and it is illegal to use, possess, cultivate, or distribute. While each state has its own marijuana laws, they cannot overturn or preempt federal law,” according to LegalMatch.com. The article continues, “Federal law always preempts, or overrules, state laws.”
Taking this fact directly into the employment environment, we can see how it applies to employees.
“You can be fired from your job for your off-the-clock use of marijuana.” So said the Colorado Supreme Court in Coats v. Dish Network (2015), a case where an employee sued for wrongful termination after testing positive for marijuana. Fair-employment practice laws generally find it unlawful to prohibit legal activities as a condition of employment in Colorado. In many states the use of marijuana is legal. But under federal law, the use of marijuana is still illegal so it can be prohibited by an employer, according to FindLaw.com.
Many large flight training providers, especially university and collegiate programs, have drug testing requirements for staff, instructors, and even students. But it doesn’t mean you have to be a big business to put a drug testing program in place. National level service providers offer pooling of drug testing employee bases to offer randomized testing of smaller employee groups into larger aggregate pools. A little time spent with your local Small Business Administration office or a call to your insurance provider can help develop contacts to set these types of programs up for your operation.
Establishing a drug testing program is affordable for most operations. When an employer is entered into a broader aggregated employee pool that is randomized, this subjects the employer to costs only when an employee is selected for testing. A standard urine-based drug test in most cases will be somewhere around $50 per test. When it comes down to overall business costs and risk, this is a bargain.
It will always be worth consulting with an attorney familiar with employment law in your state, but we fully expect that an employee, such as a flight instructor, found to have tested positive for a federally illegal substance and who operates in a federally overseen activity—which flight training is—is certainly eligible for firing.
The key here is to establish a process and procedures, and follow them in accordance with the employee handbook or human resource procedures set forth for your organization. There are rules on how and by what methodology testing is done. This is one of the benefits of contracting this service with a service provider, instead of trying to do it on your own.