title-14-part-120-sec120-221

14 CFR Ch. I (1–1–24 Edition)

§ 120.221

tion with decisions on post-accident
tests.

(D) Documents verifying existence of

a medical explanation of the inability
of a covered employee to provide ade-
quate breath for testing.

(E) Materials on alcohol misuse

awareness, including a copy of the em-
ployer’s policy on alcohol misuse.

(F) Documentation of compliance

with the requirements of § 120.223(a).

(G) Documentation of training pro-

vided to supervisors for the purpose of
qualifying the supervisors to make a
determination concerning the need for
alcohol testing based on reasonable
suspicion.

(H) Certification that any training

conducted under this subpart complies
with the requirements for such train-
ing.

(b)

Annual reports.

(1) Annual reports

of alcohol testing program results
must be submitted to the FAA by
March 15 of the succeeding calendar
year for the prior calendar year (Janu-
ary 1 through December 31) in accord-
ance with the provisions of paragraphs
(b)(1)(i) through (iii) of this section.

(i) Each part 121 certificate holder

shall submit an annual report each
year.

(ii) Each entity conducting an alco-

hol testing program under this part,
other than a part 121 certificate holder,
that has 50 or more employees per-
forming a safety-sensitive function on
January 1 of any calendar year shall
submit an annual report to the FAA for
that calendar year.

(iii) The Administrator reserves the

right to require that aviation employ-
ers not otherwise required to submit
annual reports prepare and submit
such reports to the FAA. Employers
that will be required to submit annual
reports under this provision will be no-
tified in writing by the FAA.

(2) As an employer, you must use the

Management Information System
(MIS) form and instructions as re-
quired by 49 CFR part 40 (at 49 CFR
40.26 and appendix J to 49 CFR part 40).
You may also use the electronic
version of the MIS form provided by
the DOT. The Administrator may des-
ignate means (e.g., electronic program
transmitted via the Internet) other

than hard-copy, for MIS form submis-
sion. For information on where to sub-
mit MIS forms and for the electronic
version of the form, see:

http://

www.faa.gov/about/office

org/head-

quarters

offices/avs/offices/aam/

drug

alcohol/.

(3) A service agent may prepare the

MIS report on behalf of an employer.
However, a company official (e.g., Des-
ignated Employer Representative as
defined in 49 CFR part 40) must certify
the accuracy and completeness of the
MIS report, no matter who prepares it.

(c)

Access to records and facilities.

(1)

Except as required by law or expressly
authorized or required in this subpart,
no employer shall release covered em-
ployee information that is contained in
records required to be maintained
under this subpart.

(2) A covered employee is entitled,

upon written request, to obtain copies
of any records pertaining to the em-
ployee’s use of alcohol, including any
records pertaining to his or her alcohol
tests in accordance with 49 CFR part
40. The employer shall promptly pro-
vide the records requested by the em-
ployee. Access to an employee’s records
shall not be contingent upon payment
for records other than those specifi-
cally requested.

(3) Each employer shall permit access

to all facilities utilized in complying
with the requirements of this subpart
to the Secretary of Transportation or
any DOT agency with regulatory au-
thority over the employer or any of its
covered employees.

[Docket No. FAA–2008–0937, 74 FR 22653, May
14, 2009, as amended by Docket DOT–OST–
2021–0093, 88 FR 27636, May 2, 2023]

§ 120.221 Consequences for employees

engaging in alcohol-related con-

duct.

(a)

Removal from safety-sensitive func-

tion.

(1) Except as provided in 49 CFR

part 40, no covered employee shall per-
form safety-sensitive functions if the
employee has engaged in conduct pro-
hibited by §§ 120.19 or 120.37, or an alco-
hol misuse rule of another DOT agency.

(2) No employer shall permit any cov-

ered employee to perform safety-sen-
sitive functions if the employer has de-
termined that the employee has vio-
lated this section.

Federal Aviation Administration, DOT

§ 120.221

(b)

Permanent disqualification from

service.

(1) An employee who violates

§§ 120.19(c) or 120.37(c) is permanently
precluded from performing for an em-
ployer the safety-sensitive duties the
employee performed before such viola-
tion.

(2) An employee who engages in alco-

hol use that violates another alcohol
misuse provision of §§ 120.19 or 120.37,
and who had previously engaged in al-
cohol use that violated the provisions
of §§ 120.19 or 120.37 after becoming sub-
ject to such prohibitions, is perma-
nently precluded from performing for
an employer the safety-sensitive duties
the employee performed before such
violation.

(c)

Notice to the Federal Air Surgeon.

(1) An employer who determines that a
covered employee who holds an airman
medical certificate issued under part 67
of this chapter has engaged in alcohol
use that violated the alcohol misuse
provisions of §§ 120.19 or 120.37 shall no-
tify the Federal Air Surgeon within 2
working days.

(2) Each such employer shall forward

to the Federal Air Surgeon a copy of
the report of any evaluation performed
under the provisions of § 120.223(c) with-
in 2 working days of the employer’s re-
ceipt of the report.

(3) All documents must be sent to the

Federal Air Surgeon, Federal Aviation
Administration, Office of Aerospace
Medicine, Attn: Drug Abatement Divi-
sion (AAM–800), 800 Independence Ave-
nue, SW., Washington, DC 20591.

(4) No covered employee who is re-

quired to hold an airman medical cer-
tificate in order to perform a safety-
sensitive duty may perform that duty
following a violation of this subpart
until the covered employee obtains an
airman medical certificate issued by
the Federal Air Surgeon dated after
the alcohol test result or refusal to
test date. After the covered employee
obtains this airman medical certifi-
cate, the SAP may recommend to the
employer that the covered employee
may be returned to a safety-sensitive
position. The receipt of an airman med-
ical certificate does not alter any obli-
gations otherwise required by 49 CFR
part 40 or this subpart.

(5) Once the Federal Air Surgeon has

recommended under paragraph (c)(4) of

this section that the employee be per-
mitted to perform safety-sensitive du-
ties, the employer cannot permit the
employee to perform those safety-sen-
sitive duties until the employer has en-
sured that the employee meets the re-
turn to duty requirements in accord-
ance with 49 CFR part 40.

(d)

Notice of refusals.

Each covered

employer must notify the FAA within 2
working days of any covered employee
who holds a certificate issued under
part 61, part 63, or part 65 of this chap-
ter who has refused to submit to an al-
cohol test required under this subpart.
Notification must be sent to: Federal
Aviation Administration, Office of
Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue, SW., Washington, DC 20591, or
by fax to (202) 267–5200.

(e)

Required evaluation and alcohol

testing.

No covered employee who has

engaged in conduct prohibited by
§§ 120.19 or 120.37 shall perform safety-
sensitive functions unless the em-
ployee has met the requirements of 49
CFR part 40. No employer shall permit
a covered employee who has engaged in
such conduct to perform safety-sen-
sitive functions unless the employee
has met the requirements of 49 CFR
part 40.

(f)

Other alcohol-related conduct.

(1)

No covered employee tested under this
subpart who is found to have an alco-
hol concentration of 0.02 or greater but
less than 0.04 shall perform or continue
to perform safety-sensitive functions
for an employer, nor shall an employer
permit the employee to perform or con-
tinue to perform safety-sensitive func-
tions, until:

(i) The employee’s alcohol concentra-

tion measures less than 0.02; or

(ii) The start of the employee’s next

regularly scheduled duty period, but
not less than 8 hours following admin-
istration of the test.

(2) Except as provided in paragraph

(f)(1) of this section, no employer shall
take any action under this rule against
an employee based solely on test re-
sults showing an alcohol concentration
less than 0.04. This does not prohibit an
employer with authority independent

14 CFR Ch. I (1–1–24 Edition)

§ 120.223

of this rule from taking any action
otherwise consistent with law.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009, as amended by Amdt. 120–1, 78 FR 42004,
July 15, 2013; Docket DOT–OST–2021–0093, 88
FR 27636, May 2, 2023]

§ 120.223 Alcohol misuse information,

training, and substance abuse pro-

fessionals.

(a)

Employer obligation to promulgate a

policy on the misuse of alcohol.

(1)

Gen-

eral requirements.

Each employer shall

provide educational materials that ex-
plain these alcohol testing require-
ments and the employer’s policies and
procedures with respect to meeting
those requirements.

(i) The employer shall ensure that a

copy of these materials is distributed
to each covered employee prior to the
start of alcohol testing under the em-
ployer’s FAA-mandated alcohol testing
program and to each individual subse-
quently hired for or transferred to a
covered position.

(ii) Each employer shall provide writ-

ten notice to representatives of em-
ployee organizations of the availability
of this information.

(2)

Required content.

The materials to

be made available to employees shall
include detailed discussion of at least
the following:

(i) The identity of the individual des-

ignated by the employer to answer em-
ployee questions about the materials.

(ii) The categories of employees who

are subject to the provisions of these
alcohol testing requirements.

(iii) Sufficient information about the

safety-sensitive functions performed by
those employees to make clear what
period of the work day the covered em-
ployee is required to be in compliance
with these alcohol testing require-
ments.

(iv) Specific information concerning

employee conduct that is prohibited by
this chapter.

(v) The circumstances under which a

covered employee will be tested for al-
cohol under this subpart.

(vi) The procedures that will be used

to test for the presence of alcohol, pro-
tect the employee and the integrity of
the breath testing process, safeguard
the validity of the test results, and en-

sure that those results are attributed
to the correct employee.

(vii) The requirement that a covered

employee submit to alcohol tests ad-
ministered in accordance with this sub-
part.

(viii) An explanation of what con-

stitutes a refusal to submit to an alco-
hol test and the attendant con-
sequences.

(ix) The consequences for covered

employees found to have violated the
prohibitions in this chapter, including
the requirement that the employee be
removed immediately from performing
safety-sensitive functions, and the
process in 49 CFR part 40, subpart O.

(x) The consequences for covered em-

ployees found to have an alcohol con-
centration of 0.02 or greater but less
than 0.04.

(xi) Information concerning the ef-

fects of alcohol misuse on an individ-
ual’s health, work, and personal life;
signs and symptoms of an alcohol prob-
lem; available methods of evaluating
and resolving problems associated with
the misuse of alcohol; and intervening
when an alcohol problem is suspected,
including confrontation, referral to
any available employee assistance pro-
gram, and/or referral to management.

(xii) Optional provisions. The mate-

rials supplied to covered employees
may also include information on addi-
tional employer policies with respect
to the use or possession of alcohol, in-
cluding any consequences for an em-
ployee found to have a specified alco-
hol level, that are based on the employ-
er’s authority independent of this sub-
part. Any such additional policies or
consequences must be clearly and obvi-
ously described as being based on inde-
pendent authority.

(b)

Training for supervisors.

Each em-

ployer shall ensure that persons des-
ignated to determine whether reason-
able suspicion exists to require a cov-
ered employee to undergo alcohol test-
ing under § 120.217(d) of this subpart re-
ceive at least 60 minutes of training on
the physical, behavioral, speech, and
performance indicators of probable al-
cohol misuse.

(c)

Substance abuse professional (SAP)

duties.

The SAP must perform the func-

tions set forth in 49 CFR part 40, sub-
part O, and this subpart.