53
Federal Aviation Administration, DOT
§ 120.109
(2) 14 CFR:
(i) § 67.107—First-Class Airman Med-
ical Certificate, Mental.
(ii) § 67.207—Second-Class Airman
Medical Certificate, Mental.
(iii) § 67.307—Third-Class Airman
Medical Certificate, Mental.
(iv) § 91.147—Passenger carrying
flight for compensation or hire.
(v) § 135.1—Applicability
(e) Falsification. No individual may
make, or cause to be made, any of the
following:
(1) Any fraudulent or intentionally
false statement in any application of a
drug testing program.
(2) Any fraudulent or intentionally
false entry in any record or report that
is made, kept, or used to show compli-
ance with this part.
(3) Any reproduction or alteration,
for fraudulent purposes, of any report
or record required to be kept by this
part.
[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3153, Jan. 20, 2010]
§ 120.105 Employees who must be test-
ed.
Each employee, including any assist-
ant, helper, or individual in a training
status, who performs a safety-sensitive
function listed in this section directly
or by contract (including by sub-
contract at any tier) for an employer
as defined in this subpart must be sub-
ject to drug testing under a drug test-
ing program implemented in accord-
ance with this subpart. This includes
full-time, part-time, temporary, and
intermittent employees regardless of
the degree of supervision. The safety-
sensitive functions are:
(a) Flight crewmember duties.
(b) Flight attendant duties.
(c) Flight instruction duties.
(d) Aircraft dispatcher duties.
(e) Aircraft maintenance and preven-
tive maintenance duties.
(f) Ground security coordinator du-
ties.
(g) Aviation screening duties.
(h) Air traffic control duties.
(i) Operations control specialist du-
ties.
[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009, as amended by Amdt. 120–2, 79 FR 9973,
Feb. 21, 2014]
§ 120.107 Substances for which testing
must be conducted.
Each employer shall test each em-
ployee who performs a safety-sensitive
function for evidence of a prohibited
drug during each test required by
§ 120.109.
[84 FR 16773, Apr. 23, 2019]
§ 120.109 Types of drug testing re-
quired.
Each employer shall conduct the
types of testing described in this sec-
tion in accordance with the procedures
set forth in this subpart and the DOT
‘‘Procedures for Transportation Work-
place Drug Testing Programs’’ (49 CFR
part 40).
(a)
Pre-employment drug testing.
(1) No
employer may hire any individual for a
safety-sensitive function listed in
§ 120.105 unless the employer first con-
ducts a pre-employment test and re-
ceives a verified negative drug test re-
sult for that individual.
(2) No employer may allow an indi-
vidual to transfer from a nonsafety-
sensitive to a safety-sensitive function
unless the employer first conducts a
pre-employment test and receives a
verified negative drug test result for
the individual.
(3) Employers must conduct another
pre-employment test and receive a
verified negative drug test result be-
fore hiring or transferring an indi-
vidual into a safety-sensitive function
if more than 180 days elapse between
conducting the pre-employment test
required by paragraphs (a)(1) or (2) of
this section and hiring or transferring
the individual into a safety-sensitive
function, resulting in that individual
being brought under an FAA drug test-
ing program.
(4) If the following criteria are met,
an employer is permitted to conduct a
pre-employment test, and if such a test
is conducted, the employer must re-
ceive a negative test result before put-
ting the individual into a safety-sen-
sitive function:
(i) The individual previously per-
formed a safety-sensitive function for
the employer and the employer is not
required to pre-employment test the
individual under paragraphs (a)(1) or (2)
54
14 CFR Ch. I (1–1–24 Edition)
§ 120.109
of this section before putting the indi-
vidual to work in a safety-sensitive
function;
(ii) The employer removed the indi-
vidual from the employer’s random
testing program conducted under this
subpart for reasons other than a
verified positive test result on an FAA-
mandated drug test or a refusal to sub-
mit to such testing; and
(iii) The individual will be returning
to the performance of a safety-sen-
sitive function.
(5) Before hiring or transferring an
individual to a safety-sensitive func-
tion, the employer must advise each in-
dividual that the individual will be re-
quired to undergo pre-employment
testing in accordance with this sub-
part, to determine the presence of a
prohibited drug in the individual’s sys-
tem. The employer shall provide this
same notification to each individual
required by the employer to undergo
pre-employment testing under para-
graph (a)(4) of this section.
(b)
Random drug testing.
(1) Except as
provided in paragraphs (b)(2) through
(b)(4) of this section, the minimum an-
nual percentage rate for random drug
testing shall be 50 percent of covered
employees.
(2) The Administrator’s decision to
increase or decrease the minimum an-
nual percentage rate for random drug
testing is based on the reported posi-
tive rate for the entire industry. All in-
formation used for this determination
is drawn from the statistical reports
required by § 120.119. In order to ensure
reliability of the data, the Adminis-
trator considers the quality and com-
pleteness of the reported data, may ob-
tain additional information or reports
from employers, and may make appro-
priate modifications in calculating the
industry positive rate. Each year, the
Administrator will publish in the F
ED
-
ERAL
R
EGISTER
the minimum annual
percentage rate for random drug test-
ing of covered employees. The new
minimum annual percentage rate for
random drug testing will be applicable
starting January 1 of the calendar year
following publication.
(3) When the minimum annual per-
centage rate for random drug testing is
50 percent, the Administrator may
lower this rate to 25 percent of all cov-
ered employees if the Administrator
determines that the data received
under the reporting requirements of
this subpart for two consecutive cal-
endar years indicate that the reported
positive rate is less than 1.0 percent.
(4) When the minimum annual per-
centage rate for random drug testing is
25 percent, and the data received under
the reporting requirements of this sub-
part for any calendar year indicate
that the reported positive rate is equal
to or greater than 1.0 percent, the Ad-
ministrator will increase the minimum
annual percentage rate for random
drug testing to 50 percent of all covered
employees.
(5) The selection of employees for
random drug testing shall be made by a
scientifically valid method, such as a
random-number table or a computer-
based random number generator that is
matched with employees’ Social Secu-
rity numbers, payroll identification
numbers, or other comparable identi-
fying numbers. Under the selection
process used, each covered employee
shall have an equal chance of being
tested each time selections are made.
(6) As an employer, you must select
and test a percentage of employees at
least equal to the minimum annual
percentage rate each year.
(i) As an employer, to determine
whether you have met the minimum
annual percentage rate, you must di-
vide the number of random testing re-
sults for safety-sensitive employees by
the average number of safety-sensitive
employees eligible for random testing.
(A) To calculate whether you have
met the annual minimum percentage
rate, count all random positives, ran-
dom negatives, and random refusals as
your ‘‘random testing results.’’
(B) To calculate the average number
of safety-sensitive employees eligible
for random testing throughout the
year, add the total number of safety-
sensitive employees eligible for testing
during each random testing period for
the year and divide that total by the
number of random testing periods.
Only safety-sensitive employees are to
be in an employer’s random testing
pool, and all safety-sensitive employ-
ees must be in the random pool. If you
are an employer conducting random
testing more often than once per
55
Federal Aviation Administration, DOT
§ 120.109
month (e.g., you select daily, weekly,
bi-weekly) you do not need to compute
this total number of safety-sensitive
employees more than on a once per
month basis.
(ii) As an employer, you may use a
service agent to perform random selec-
tions for you, and your safety-sensitive
employees may be part of a larger ran-
dom testing pool of safety-sensitive
employees. However, you must ensure
that the service agent you use is test-
ing at the appropriate percentage es-
tablished for your industry and that
only safety-sensitive employees are in
the random testing pool. For example:
(A) If the service agent has your em-
ployees in a random testing pool for
your company alone, you must ensure
that the testing is conducted at least
at the minimum annual percentage
rate under this part.
(B) If the service agent has your em-
ployees in a random testing pool com-
bined with other FAA-regulated com-
panies, you must ensure that the test-
ing is conducted at least at the min-
imum annual percentage rate under
this part.
(C) If the service agent has your em-
ployees in a random testing pool com-
bined with other DOT-regulated com-
panies, you must ensure that the test-
ing is conducted at least at the highest
rate required for any DOT-regulated
company in the pool.
(7) Each employer shall ensure that
random drug tests conducted under
this subpart are unannounced and that
the dates for administering random
tests are spread reasonably throughout
the calendar year.
(8) Each employer shall require that
each safety-sensitive employee who is
notified of selection for random drug
testing proceeds to the collection site
immediately; provided, however, that
if the employee is performing a safety-
sensitive function at the time of the
notification, the employer shall in-
stead ensure that the employee ceases
to perform the safety-sensitive func-
tion and proceeds to the collection site
as soon as possible.
(9) If a given covered employee is
subject to random drug testing under
the drug testing rules of more than one
DOT agency, the employee shall be
subject to random drug testing at the
percentage rate established for the cal-
endar year by the DOT agency regu-
lating more than 50 percent of the em-
ployee’s function.
(10) If an employer is required to con-
duct random drug testing under the
drug testing rules of more than one
DOT agency, the employer may—
(i) Establish separate pools for ran-
dom selection, with each pool con-
taining the covered employees who are
subject to testing at the same required
rate; or
(ii) Randomly select covered employ-
ees for testing at the highest percent-
age rate established for the calendar
year by any DOT agency to which the
employer is subject.
(11) An employer required to conduct
random drug testing under the anti-
drug rules of more than one DOT agen-
cy shall provide each such agency ac-
cess to the employer’s records of ran-
dom drug testing, as determined to be
necessary by the agency to ensure the
employer’s compliance with the rule.
(c)
Post-accident drug testing.
Each
employer shall test each employee who
performs a safety-sensitive function for
the presence of a prohibited drug in the
employee’s system if that employee’s
performance either contributed to an
accident or cannot be completely dis-
counted as a contributing factor to the
accident. The employee shall be tested
as soon as possible but not later than
32 hours after the accident. The deci-
sion not to administer a test under this
section must be based on a determina-
tion, using the best information avail-
able at the time of the determination,
that the employee’s performance could
not have contributed to the accident.
The employee shall submit to post-ac-
cident testing under this section.
(d)
Drug testing based on reasonable
cause.
Each employer must test each
employee who performs a safety-sen-
sitive function and who is reasonably
suspected of having used a prohibited
drug. The decision to test must be
based on a reasonable and articulable
belief that the employee is using a pro-
hibited drug on the basis of specific
contemporaneous physical, behavioral,
or performance indicators of probable
drug use. At least two of the employ-
ee’s supervisors, one of whom is trained
56
14 CFR Ch. I (1–1–24 Edition)
§ 120.111
in detection of the symptoms of pos-
sible drug use, must substantiate and
concur in the decision to test an em-
ployee who is reasonably suspected of
drug use; except that in the case of an
employer, other than a part 121 certifi-
cate holder, who employs 50 or fewer
employees who perform safety-sen-
sitive functions, one supervisor who is
trained in detection of symptoms of
possible drug use must substantiate
the decision to test an employee who is
reasonably suspected of drug use.
(e)
Return to duty drug testing.
Each
employer shall ensure that before an
individual is returned to duty to per-
form a safety-sensitive function after
refusing to submit to a drug test re-
quired by this subpart or receiving a
verified positive drug test result on a
test conducted under this subpart the
individual shall undergo a return-to-
duty drug test. No employer shall
allow an individual required to undergo
return-to-duty testing to perform a
safety-sensitive function unless the
employer has received a verified nega-
tive drug test result for the individual.
The test cannot occur until after the
SAP has determined that the employee
has successfully complied with the pre-
scribed education and/or treatment.
(f)
Follow-up drug testing.
(1) Each
employer shall implement a reasonable
program of unannounced testing of
each individual who has been hired to
perform or who has been returned to
the performance of a safety-sensitive
function after refusing to submit to a
drug test required by this subpart or
receiving a verified positive drug test
result on a test conducted under this
subpart.
(2) The number and frequency of such
testing shall be determined by the em-
ployer’s Substance Abuse Professional
conducted in accordance with the pro-
visions of 49 CFR part 40, but shall con-
sist of at least six tests in the first 12
months following the employee’s re-
turn to duty.
(3) The employer must direct the em-
ployee to undergo testing for alcohol in
accordance with subpart F of this part,
in addition to drugs, if the Substance
Abuse Professional determines that al-
cohol testing is necessary for the par-
ticular employee. Any such alcohol
testing shall be conducted in accord-
ance with the provisions of 49 CFR part
40.
(4) Follow-up testing shall not exceed
60 months after the date the individual
begins to perform or returns to the per-
formance of a safety-sensitive func-
tion. The Substance Abuse Professional
may terminate the requirement for fol-
low-up testing at any time after the
first six tests have been conducted, if
the Substance Abuse Professional de-
termines that such testing is no longer
necessary.
[Docket No. FAA–2008–0937, 74 FR 22653, May
14, 2009, as amended at 84 FR 16773, Apr. 23,
2019]
§ 120.111 Administrative and other
matters.
(a)
MRO record retention requirements.
(1) Records concerning drug tests con-
firmed positive by the laboratory shall
be maintained by the MRO for 5 years.
Such records include the MRO copies of
the custody and control form, medical
interviews, documentation of the basis
for verifying as negative test results
confirmed as positive by the labora-
tory, any other documentation con-
cerning the MRO’s verification process.
(2) Should the employer change
MRO’s for any reason, the employer
shall ensure that the former MRO for-
wards all records maintained pursuant
to this rule to the new MRO within ten
working days of receiving notice from
the employer of the new MRO’s name
and address.
(3) Any employer obtaining MRO
services by contract, including a con-
tract through a C/TPA, shall ensure
that the contract includes a record-
keeping provision that is consistent
with this paragraph, including require-
ments for transferring records to a new
MRO.
(b)
Access to records.
The employer
and the MRO shall permit the Adminis-
trator or the Administrator’s rep-
resentative to examine records re-
quired to be kept under this subpart
and 49 CFR part 40. The Administrator
or the Administrator’s representative
may require that all records main-
tained by the service agent for the em-
ployer must be produced at the em-
ployer’s place of business.
(c)
Release of drug testing information.
An employer shall release information