title-14-part-120

Federal Aviation Administration, DOT

§ 120.5

PART 120—DRUG AND ALCOHOL

TESTING PROGRAM

Subpart A—General

Sec.
120.1

Applicability.

120.3

Purpose.

120.5

Procedures.

120.7

Definitions.

Subpart B—Individuals Certificated Under

Parts 61, 63, and 65

120.11

Refusal to submit to a drug or alco-

hol test by a Part 61 certificate holder.

120.13

Refusal to submit to a drug or alco-

hol test by a Part 63 certificate holder.

120.15

Refusal to submit to a drug or alco-

hol test by a Part 65 certificate holder.

Subpart C—Air Traffic Controllers

120.17

Use of prohibited drugs.

120.19

Misuse of alcohol.

120.21

Testing for alcohol.

Subpart D—Part 119 Certificate Holders

Authorized To Conduct Operations
Under Part 121 or Part 135 or Operators
Under § 91.147 of This Chapter and
Safety-Sensitive Employees

120.31

Prohibited drugs.

120.33

Use of prohibited drugs.

120.35

Testing for prohibited drugs.

120.37

Misuse of alcohol.

120.39

Testing for alcohol.

Subpart E—Drug Testing Program

Requirements

120.101

Scope.

120.103

General.

120.105

Employees who must be tested.

120.107

Substances for which testing must

be conducted.

120.109

Types of drug testing required.

120.111

Administrative and other matters.

120.113

Medical Review Officer, Substance

Abuse Professional, and employer re-
sponsibilities.

120.115

Employee Assistance Program

(EAP).

120.117

Implementing a drug testing pro-

gram.

120.119

Annual reports.

120.121

Preemption.

120.123

Drug testing outside of the territory

of the United States.

120.125

Waivers from 49 CFR 40.21.

Subpart F—Alcohol Testing Program

Requirements

120.201

Scope.

120.203

General.

120.205

Preemption of State and local laws.

120.207

Other requirements imposed by em-

ployers.

120.209

Requirement for notice.

120.211

Applicable Federal regulations.

120.213

Falsification.

120.215

Covered employees.

120.217

Tests required.

120.219

Handling of test results, record re-

tention, and confidentiality.

120.221

Consequences for employees engag-

ing in alcohol-related conduct.

120.223

Alcohol misuse information, train-

ing, and substance abuse professionals.

120.225

How to implement an alcohol testing

program.

120.227

Employees located outside the U.S.

UTHORITY

: 49 U.S.C. 106(f), 106(g), 40101–

40103, 40113, 40120, 41706, 41721, 44106, 44701,
44702, 44703, 44709, 44710, 44711, 45101–45105,
46105, 46306.

OURCE

: Docket No. FAA–2008–0937, 74 FR

22653, May 14, 2009, unless otherwise noted.

Subpart A—General

§ 120.1 Applicability.

This part applies to the following

persons:

(a) All air carriers and operators cer-

tificated under part 119 of this chapter
authorized to conduct operations under
part 121 or part 135 of this chapter, all
air traffic control facilities not oper-
ated by the FAA or by or under con-
tract to the U.S. military; and all oper-
ators as defined in 14 CFR 91.147.

(b) All individuals who perform, ei-

ther directly or by contract, a safety-
sensitive function listed in subpart E
or subpart F of this part.

who perform safety-sensitive functions
and elect to implement a drug and al-
cohol testing program under this part.

(d) All contractors who elect to im-

plement a drug and alcohol testing pro-
gram under this part.

§ 120.3 Purpose.

The purpose of this part is to estab-

lish a program designed to help prevent
accidents and injuries resulting from
the use of prohibited drugs or the mis-
use of alcohol by employees who per-
form safety-sensitive functions in avia-
tion.

§ 120.5 Procedures.

Each employer having a drug and al-

cohol testing program under this part

14 CFR Ch. I (1–1–24 Edition)

§ 120.7

must ensure that all drug and alcohol
testing conducted pursuant to this part
complies with the procedures set forth
in 49 CFR part 40.

§ 120.7 Definitions.

For the purposes of this part, the fol-

lowing definitions apply:

(a)

Accident

means an occurrence as-

sociated with the operation of an air-
craft which takes place between the
time any individual boards the aircraft
with the intention of flight and all
such individuals have disembarked, and
in which any individual suffers death
or serious injury, or in which the air-
craft receives substantial damage.

(b)

Alcohol

means any substance spec-

ified in 49 CFR part 40.

(c)

Alcohol misuse

means any prohib-

ited conduct referenced under subpart
C or D of this part.

(d)

Contractor

is an individual or com-

pany that performs a safety-sensitive
function by contract for an employer
or another contractor.

(e)

Covered employee

means an indi-

vidual who performs, either directly or
by contract, a safety-sensitive function
listed in §§ 120.105 and 120.215 for an em-
ployer (as defined in paragraph (g) of
this section). For purposes of pre-em-
ployment testing only, the term ‘‘cov-
ered employee’’ includes an individual
applying to perform a safety-sensitive
function.

(f)

Employee

is an individual who is

hired, either directly or by contract, to
perform a safety-sensitive function for
an employer, as defined in paragraph
(g) of this section. An employee is also
an individual who transfers into a posi-
tion to perform a safety-sensitive func-
tion for an employer.

(g)

Employer

is a part 119 certificate

holder with authority to operate under
parts 121 and/or 135 of this chapter, an
operator as defined in § 91.147 of this
chapter, or an air traffic control facil-
ity not operated by the FAA or by or
under contract to the U.S. Military. An
employer may use a contract employee
who is not included under that employ-
er’s FAA-mandated drug and alcohol
testing program to perform a safety-
sensitive function only if that contract
employee is included under the con-
tractor’s FAA-mandated drug and alco-
hol testing program and is performing

a safety-sensitive function on behalf of
that contractor (

i.e.,

within the scope

of employment with the contractor.)

(h)

Hire

means retaining an indi-

vidual for a safety-sensitive function as
a paid employee, as a volunteer, or
through barter or other form of com-
pensation.

(i)

Performing

(a safety-sensitive

function): an employee is considered to
be performing a safety-sensitive func-
tion during any period in which he or
she is actually performing, ready to
perform, or immediately available to
perform such function.

(j)

Positive rate for random drug testing

means the number of verified positive
results for random drug tests con-
ducted under subpart E of this part,
plus the number of refusals of random
drug tests required by subpart E of this
part, divided by the total number of
random drug test results (

i.e.,

positives, negatives, and refusals)
under subpart E of this part.

(k)

Prohibited drug

means any of the

drugs specified in 49 CFR part 40.

(l)

Refusal to submit to alcohol test

means that a covered employee has en-
gaged in conduct including but not lim-
ited to that described in 49 CFR 40.261,
or has failed to remain readily avail-
able for post-accident testing as re-
quired by subpart F of this part.

(m)

Refusal to submit to drug test

means that a covered employee en-
gages in conduct including but not lim-
ited to that described in 49 CFR 40.191.

(n)

Safety-sensitive function

means a

function listed in §§ 120.105 and 120.215.

(o)

Violation rate for random alcohol

testing

means the number of 0.04, and

above, random alcohol confirmation
test results conducted under subpart F
of this part, plus the number of refus-
als of random alcohol tests required by
subpart F of this part, divided by the
total number of random alcohol screen-
ing tests (including refusals) conducted
under subpart F of this part.

[Docket DOT–OST–2021–0093, 88 FR 27635,
May 2, 2023]

Federal Aviation Administration, DOT

§ 120.17

Subpart B—Individuals Certifi-

cated Under Parts 61, 63, and
65

§ 120.11 Refusal to submit to a drug or

alcohol test by a Part 61 certificate

holder.

(a) This section applies to all individ-

uals who hold a certificate under part
61 of this chapter and who are subject
to drug and alcohol testing under this
part.

(b) Refusal by the holder of a certifi-

cate issued under part 61 of this chap-
ter to take a drug or alcohol test re-
quired under the provisions of this part
is grounds for:

(1) Denial of an application for any

certificate, rating, or authorization
issued under part 61 of this chapter for
a period of up to 1 year after the date
of such refusal; and

(2) Suspension or revocation of any

certificate, rating, or authorization
issued under part 61 of this chapter.

§ 120.13 Refusal to submit to a drug or

alcohol test by a Part 63 certificate

holder.

(a) This section applies to all individ-

uals who hold a certificate under part
63 of this chapter and who are subject
to drug and alcohol testing under this
part.

(b) Refusal by the holder of a certifi-

cate issued under part 63 of this chap-
ter to take a drug or alcohol test re-
quired under the provisions of this part
is grounds for:

(1) Denial of an application for any

certificate or rating issued under part
63 of this chapter for a period of up to
1 year after the date of such refusal;
and

(2) Suspension or revocation of any

certificate or rating issued under part
63 of this chapter.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3153, Jan. 20, 2010]

§ 120.15 Refusal to submit to a drug or

alcohol test by a Part 65 certificate

holder.

(a) This section applies to all individ-

uals who hold a certificate under part
65 of this chapter and who are subject
to drug and alcohol testing under this
part.

(b) Refusal by the holder of a certifi-

cate issued under part 65 of this chap-
ter to take a drug or alcohol test re-
quired under the provisions of this part
is grounds for:

(1) Denial of an application for any

certificate or rating issued under part
65 of this chapter for a period of up to
1 year after the date of such refusal;
and

(2) Suspension or revocation of any

certificate or rating issued under part
65 of this chapter.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3153, Jan. 20, 2010]

Subpart C—Air Traffic Controllers

§ 120.17 Use of prohibited drugs.

(a) Each employer shall provide each

employee performing a function listed
in subpart E of this part, and his or her
supervisor, with the training specified
in that subpart. No employer may use
any contractor to perform an air traf-
fic control function unless that con-
tractor provides each of its employees
performing that function for the em-
ployer, and his or her supervisor, with
the training specified in subpart E of
this part.

(b) No employer may knowingly use

any individual to perform, nor may any
individual perform for an employer, ei-
ther directly or by contract, any air
traffic control function while that indi-
vidual has a prohibited drug, as defined
in this part, in his or her system.

any individual to perform, nor may any
individual perform for an employer, ei-
ther directly or by contract, any air
traffic control function if the indi-
vidual has a verified positive drug test
result on, or has refused to submit to,
a drug test required by subpart E of
this part and the individual has not
met the requirements of subpart E of
this part for returning to the perform-
ance of safety-sensitive duties.

(d) Each employer shall test each of

its employees who perform any air
traffic control function in accordance
with subpart E of this part. No em-
ployer may use any contractor to per-
form any air traffic control function
unless that contractor tests each em-
ployee performing such a function for

14 CFR Ch. I (1–1–24 Edition)

§ 120.19

the employer in accordance with sub-
part E of this part.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3153, Jan. 20, 2010]

§ 120.19 Misuse of alcohol.

(a) This section applies to covered

employees who perform air traffic con-
trol duties directly or by contract for
an employer that is an air traffic con-
trol facility not operated by the FAA
or the US military.

(b)

Alcohol concentration.

No covered

employee shall report for duty or re-
main on duty requiring the perform-
ance of safety-sensitive functions while
having an alcohol concentration of 0.04
or greater. No employer having actual
knowledge that an employee has an al-
cohol concentration of 0.04 or greater
shall permit the employee to perform
or continue to perform safety-sensitive
functions.

(c)

On-duty use.

No covered employee

shall use alcohol while performing
safety-sensitive functions. No em-
ployer having actual knowledge that a
covered employee is using alcohol
while performing safety-sensitive func-
tions shall permit the employee to per-
form or continue to perform safety-sen-
sitive functions.

(d)

Pre-duty use.

No covered employee

shall perform air traffic control duties
within 8 hours after using alcohol. No
employer having actual knowledge
that such an employee has used alcohol
within 8 hours shall permit the em-
ployee to perform or continue to per-
form air traffic control duties.

(e)

Use following an accident.

No cov-

ered employee who has actual knowl-
edge of an accident involving an air-
craft for which he or she performed a
safety-sensitive function at or near the
time of the accident shall use alcohol
for 8 hours following the accident, un-
less he or she has been given a post-ac-
cident test under subpart F of this part
or the employer has determined that
the employee’s performance could not
have contributed to the accident.

(f)

Refusal to submit to a required alco-

hol test.

A covered employee may not

refuse to submit to any alcohol test re-
quired under subpart F of this part. An
employer may not permit an employee
who refuses to submit to such a test to

perform or continue to perform safety-
sensitive functions.

§ 120.21 Testing for alcohol.

(a) Each air traffic control facility

not operated by the FAA or the U.S.
military must establish an alcohol
testing program in accordance with the
provisions of subpart F of this part.

(b) No employer shall use any indi-

vidual who meets the definition of cov-
ered employee in subpart A of this part
to perform a safety-sensitive function
listed in subpart F of this part unless
that individual is subject to testing for
alcohol misuse in accordance with the
provisions of that subpart.

Subpart D—Part 119 Certificate

Holders Authorized To Con-
duct Operations under Part
121 or Part 135 or Operators
Under § 91.147 of This Chapter
and Safety-Sensitive Employ-
ees

§ 120.31 Prohibited drugs.

(a) Each certificate holder or oper-

ator shall provide each employee per-
forming a function listed in subpart E
of this part, and his or her supervisor,
with the training specified in that sub-
part.

(b) No certificate holder or operator

may use any contractor to perform a
function listed in subpart E of this part
unless that contractor provides each of
its employees performing that function
for the certificate holder or operator,
and his or her supervisor, with the
training specified in that subpart.

§ 120.33 Use of prohibited drugs.

(a) This section applies to individuals

who perform a function listed in sub-
part E of this part for a certificate
holder or operator. For the purpose of
this section, an individual who per-
forms such a function pursuant to a
contract with the certificate holder or
the operator is considered to be per-
forming that function for the certifi-
cate holder or the operator.

(b) No certificate holder or operator

may knowingly use any individual to
perform, nor may any individual per-
form for a certificate holder or an oper-
ator, either directly or by contract,

Federal Aviation Administration, DOT

§ 120.37

any function listed in subpart E of this
part while that individual has a prohib-
ited drug, as defined in this part, in his
or her system.

shall knowingly use any individual to
perform, nor shall any individual per-
form for a certificate holder or oper-
ator, either directly or by contract,
any safety-sensitive function if that in-
dividual has a verified positive drug
test result on, or has refused to submit
to, a drug test required by subpart E of
this part and the individual has not
met the requirements of that subpart
for returning to the performance of
safety-sensitive duties.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3153, Jan. 20, 2010]

§ 120.35 Testing for prohibited drugs.

(a) Each certificate holder or oper-

ator shall test each of its employees
who perform a function listed in sub-
part E of this part in accordance with
that subpart.

(b) Except as provided in paragraph

(c) of this section, no certificate holder
or operator may use any contractor to
perform a function listed in subpart E
of this part unless that contractor
tests each employee performing such a
function for the certificate holder or
operator in accordance with that sub-
part.

on-demand operation into an airport at
which no maintenance providers are
available that are subject to the re-
quirements of subpart E of this part
and emergency maintenance is re-
quired, the certificate holder may use
individuals not meeting the require-
ments of paragraph (b) of this section
to provide such emergency mainte-
nance under both of the following con-
ditions:

(1) The certificate holder must give

written notification of the emergency
maintenance to the Drug Abatement
Program Division, AAM–800, 800 Inde-
pendence Avenue, SW., Washington, DC
20591, within 10 days after being pro-
vided same in accordance with this
paragraph. A certificate holder must
retain copies of all such written notifi-
cations for two years.

(2) The aircraft must be reinspected

by maintenance personnel who meet

the requirements of paragraph (b) of
this section when the aircraft is next
at an airport where such maintenance
personnel are available.

(d) For purposes of this section,

emergency maintenance means main-
tenance that—

(1) Is not scheduled and
(2) Is made necessary by an aircraft

condition not discovered prior to the
departure for that location.

§ 120.37 Misuse of alcohol.

(a)

General.

This section applies to

covered employees who perform a func-
tion listed in subpart F of this part for
a certificate holder. For the purpose of
this section, an individual who meets
the definition of covered employee in
subpart F of this part is considered to
be performing the function for the cer-
tificate holder.

(b)

Alcohol concentration.

No covered

employee shall report for duty or re-
main on duty requiring the perform-
ance of safety-sensitive functions while
having an alcohol concentration of 0.04
or greater. No certificate holder having
actual knowledge that an employee has
an alcohol concentration of 0.04 or
greater shall permit the employee to
perform or continue to perform safety-
sensitive functions.

(c)

On-duty use.

No covered employee

shall use alcohol while performing
safety-sensitive functions. No certifi-
cate holder having actual knowledge
that a covered employee is using alco-
hol while performing safety-sensitive
functions shall permit the employee to
perform or continue to perform safety-
sensitive functions.

(d)

Pre-duty use.

(1) No covered em-

ployee shall perform flight crew-
member or flight attendant duties
within 8 hours after using alcohol. No
certificate holder having actual knowl-
edge that such an employee has used
alcohol within 8 hours shall permit the
employee to perform or continue to
perform the specified duties.

(2) No covered employee shall per-

form safety-sensitive duties other than
those specified in paragraph (d)(1) of
this section within 4 hours after using
alcohol. No certificate holder having
actual knowledge that such an em-
ployee has used alcohol within 4 hours
shall permit the employee to perform

14 CFR Ch. I (1–1–24 Edition)

§ 120.39

or to continue to perform safety-sen-
sitive functions.

(e)

Use following an accident.

No cov-

ered employee who has actual knowl-
edge of an accident involving an air-
craft for which he or she performed a
safety-sensitive function at or near the
time of the accident shall use alcohol
for 8 hours following the accident, un-
less he or she has been given a post-ac-
cident test under subpart F of this
part, or the employer has determined
that the employee’s performance could
not have contributed to the accident.

(f)

Refusal to submit to a required alco-

hol test.

A covered employee must not

refuse to submit to any alcohol test re-
quired under subpart F of this part. A
certificate holder must not permit an
employee who refuses to submit to
such a test to perform or continue to
perform safety-sensitive functions.

§ 120.39 Testing for alcohol.

(a) Each certificate holder must es-

tablish an alcohol testing program in
accordance with the provisions of sub-
part F of this part.

(b) Except as provided in paragraph

(c) of this section, no certificate holder
or operator may use any individual
who meets the definition of covered
employee in subpart A of this part to
perform a safety-sensitive function
listed in that subpart F of this part un-
less that individual is subject to test-
ing for alcohol misuse in accordance
with the provisions of that subpart.

on-demand operation into an airport at
which no maintenance providers are
available that are subject to the re-
quirements of subpart F of this part
and emergency maintenance is re-
quired, the certificate holder may use
individuals not meeting the require-
ments of paragraph (b) of this section
to provide such emergency mainte-
nance under both of the following con-
ditions:

(1) The certificate holder must give

retain copies of all such written notifi-
cations for two years.

(2) The aircraft must be reinspected

by maintenance personnel who meet
the requirements of paragraph (b) of
this section when the aircraft is next
at an airport where such maintenance
personnel are available.

(d) For purposes of this section,

emergency maintenance means main-
tenance that—

(1) Is not scheduled and
(2) Is made necessary by an aircraft

condition not discovered prior to the
departure for that location.

Subpart E—Drug Testing Program

Requirements

§ 120.101 Scope.

This subpart contains the standards

and components that must be included
in a drug testing program required by
this part.

§ 120.103 General.

(a)

Purpose.

The purpose of this sub-

part is to establish a program designed
to help prevent accidents and injuries
resulting from the use of prohibited
drugs by employees who perform safe-
ty-sensitive functions.

(b)

DOT procedures.

(1) Each employer

shall ensure that drug testing pro-
grams conducted pursuant to 14 CFR
parts 65, 91, 121, and 135 comply with
the requirements of this subpart and
the ‘‘Procedures for Transportation
Workplace Drug Testing Programs’’
published by the Department of Trans-
portation (DOT) (49 CFR part 40).

(2) An employer may not use or con-

tract with any drug testing laboratory
that is not certified by the Department
of Health and Human Services (HHS)
under the National Laboratory Certifi-
cation Program.

(c)

Employer responsibility.

As an em-

ployer, you are responsible for all ac-
tions of your officials, representatives,
and service agents in carrying out the
requirements of this subpart and 49
CFR part 40.

(d)

Applicable Federal Regulations.

The

following applicable regulations appear
in 49 CFR or 14 CFR:

(1) 49 CFR Part 40—Procedures for

Transportation Workplace Drug Test-
ing Programs

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)

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

ERAL

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

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.

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

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

Federal Aviation Administration, DOT

§ 120.113

regarding an employee’s drug testing
results, evaluation, or rehabilitation to
a third party in accordance with 49
CFR part 40. Except as required by law,
this subpart, or 49 CFR part 40, no em-
ployer shall release employee informa-
tion.

(d)

Refusal to submit to testing.

Each

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 a drug
test required under this subpart. Noti-
fication must be sent to: Federal Avia-
tion Administration, Office of Aero-
space Medicine, Drug Abatement Divi-
sion (AAM–800), 800 Independence Ave-
nue, SW., Washington, DC 20591, or by
fax to (202) 267–5200.

(e)

Permanent disqualification from

service.

(1) An employee who has

verified positive drug test results on
two drug tests required by this subpart
of this chapter, and conducted after
September 19, 1994, is permanently pre-
cluded from performing for an em-
ployer the safety-sensitive duties the
employee performed prior to the sec-
ond drug test.

(2) An employee who has engaged in

prohibited drug use during the per-
formance of a safety-sensitive function
after September 19, 1994 is permanently
precluded from performing that safety-
sensitive function for an employer.

(f)

DOT management information sys-

tem annual reports.

Copies of any an-

nual reports submitted to the FAA
under this subpart must be maintained
by the employer for a minimum of 5
years.

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

§ 120.113 Medical Review Officer, Sub-

stance Abuse Professional, and Em-

ployer Responsibilities.

(a) The employer shall designate or

appoint a Medical Review Officer
(MRO) who shall be qualified in accord-
ance with 49 CFR part 40 and shall per-
form the functions set forth in 49 CFR
part 40 and this subpart. If the em-
ployer does not have a qualified indi-
vidual on staff to serve as MRO, the
employer may contract for the provi-

sion of MRO services as part of its drug
testing program.

(b)

Medical Review Officer (MRO).

The

MRO must perform the functions set
forth in subpart G of 49 CFR part 40,
and subpart E of this part. The MRO
shall not delay verification of the pri-
mary test result following a request for
a split specimen test unless such delay
is based on reasons other than the fact
that the split specimen test result is
pending. If the primary test result is
verified as positive, actions required
under this rule (e.g., notification to the
Federal Air Surgeon, removal from
safety-sensitive position) are not
stayed during the 72-hour request pe-
riod or pending receipt of the split
specimen test result.

(c)

Substance Abuse Professional (SAP).

The SAP must perform the functions
set forth in 49 CFR part 40, subpart O.

(d)

Additional Medical Review Officer,

Substance Abuse Professional, and Em-
ployer Responsibilities Regarding 14 CFR
part 67 Airman Medical Certificate Hold-
ers.

(1) As part of verifying a confirmed

positive test result or refusal to submit
to a test, the MRO must ask and the
individual must answer whether he or
she holds an airman medical certificate
issued under 14 CFR part 67 or would be
required to hold an airman medical
certificate to perform a safety-sen-
sitive function for the employer. If the
individual answers in the affirmative
to either question, in addition to noti-
fying the employer in accordance with
49 CFR part 40, the MRO must forward
to the Federal Air Surgeon, at the ad-
dress listed in paragraph (d)(5) of this
section, the name of the individual,
along with identifying information and
supporting documentation, within 2
working days after verifying a positive
drug test result or refusal to submit to
a test.

(2) During the SAP interview re-

quired for a verified positive test result
or a refusal to submit to a test, the
SAP must ask and the individual must
answer whether he or she holds or
would be required to hold an airman
medical certificate issued under 14 CFR
part 67 to perform a safety-sensitive
function for the employer. If the indi-
vidual answers in the affirmative, the
individual must obtain an airman med-
ical certificate issued by the Federal

14 CFR Ch. I (1–1–24 Edition)

§ 120.115

Air Surgeon dated after the verified
positive drug test result date or refusal
to test date. After the individual ob-
tains this airman medical certificate,
the SAP may recommend to the em-
ployer that the individual may be re-
turned to a safety-sensitive position.
The receipt of an airman medical cer-
tificate does not alter any obligations
otherwise required by 49 CFR part 40 or
this subpart.

(3) An employer must forward to the

Federal Air Surgeon within 2 working
days of receipt, copies of all reports
provided to the employer by a SAP re-
garding the following:

(i) An individual who the MRO has

reported to the Federal Air Surgeon
under § 120.113 (d)(1); or

(ii) An individual who the employer

has reported to the Federal Air Sur-
geon under § 120.111(d).

(4) The employer must not permit an

employee who is required to hold an
airman medical certificate under 14
CFR part 67 to perform a safety-sen-
sitive duty to resume that duty until
the employee has:

(i) Been issued an airman medical

certificate from the Federal Air Sur-
geon after the date of the verified posi-
tive drug test result or refusal to test;
and

(ii) Met the return to duty require-

ments in accordance with 49 CFR part
40.

(5) Reports required under this sec-

tion shall be forwarded to the Federal
Air Surgeon, Federal Aviation Admin-
istration, Office of Aerospace Medicine,
Attn: Drug Abatement Division (AAM–
800), 800 Independence Avenue, SW.,
Washington, DC 20591.

(6) MROs, SAPs, and employers who

send reports to the Federal Air Sur-
geon must keep a copy of each report
for 5 years.

§ 120.115 Employee Assistance Pro-

gram (EAP).

(a) The employer shall provide an

EAP for employees. The employer may
establish the EAP as a part of its inter-
nal personnel services or the employer
may contract with an entity that will
provide EAP services to an employee.
Each EAP must include education and
training on drug use for employees and
training for supervisors making deter-

minations for testing of employees
based on reasonable cause.

(b)

EAP education program.

(1) Each

EAP education program must include
at least the following elements:

(i) Display and distribution of infor-

mational material;

(ii) Display and distribution of a

community service hot-line telephone
number for employee assistance; and

(iii) Display and distribution of the

employer’s policy regarding drug use in
the workplace.

(2) The employer’s policy shall in-

clude information regarding the con-
sequences under the rule of using drugs
while performing safety-sensitive func-
tions, receiving a verified positive drug
test result, or refusing to submit to a
drug test required under the rule.

(c)

EAP training program.

(1) Each em-

ployer shall implement a reasonable
program of initial training for employ-
ees. The employee training program
must include at least the following ele-
ments:

(i) The effects and consequences of

drug use on individual health, safety,
and work environment;

(ii) The manifestations and behav-

ioral cues that may indicate drug use
and abuse; and

(2) The employer’s supervisory per-

sonnel who will determine when an em-
ployee is subject to testing based on
reasonable cause shall receive specific
training on specific, contemporaneous
physical, behavioral, and performance
indicators of probable drug use in addi-
tion to the training specified in § 120.115
(c).

(3) The employer shall ensure that

supervisors who will make reasonable
cause determinations receive at least
60 minutes of initial training.

(4) The employer shall implement a

reasonable recurrent training program
for supervisory personnel making rea-
sonable cause determinations during
subsequent years.

(5) Documentation of all training

given to employees and supervisory
personnel must be included in the
training program.

(6) The employer shall identify the

employee and supervisor EAP training

Federal Aviation Administration, DOT

§ 120.117

in the employer’s drug testing pro-
gram.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009, as amended by Amdt. 120–1, 78 FR 42003,
July 15, 2013]

§ 120.117 Implementing a drug testing

program.

(a) Each company must meet the re-

quirements of this subpart. Use the fol-
lowing chart to determine whether
your company must obtain an Anti-
drug and Alcohol Misuse Prevention
Program Operations Specification, Let-
ter of Authorization, or Drug and Alco-
hol Testing Program Registration from
the FAA:

If you are . . .

You must . . .

(1) A part 119 cer-

tificate holder with
authority to oper-
ate under parts
121 or 135.

Obtain an Antidrug and Alcohol Misuse

Prevention Program Operations
Specification by contacting your FAA
Principal Operations Inspector.

(2) An operator as

defined in
§ 91.147 of this
chapter.

Obtain a Letter of Authorization by con-

tacting the Flight Standards District
Office nearest to your principal place
of business.

(3) A part 119 cer-

tificate holder with
authority to oper-
ate under parts
121 or 135 and
an operator as
defined in
§ 91.147 of this
chapter.

Complete the requirements in para-

graphs 1 and 2 of this chart and ad-
vise the Flight Standards District Of-
fice and the Drug Abatement Divi-
sion that the § 91.147 operation will
be included under the part 119 test-
ing program. Contact the Drug
Abatement Division at FAA, Office of
Aerospace Medicine, Drug Abate-
ment Division (AAM–800), 800 Inde-
pendence Avenue SW., Washington,
DC 20591.

(4) An air traffic

control facility not
operated by the
FAA or by or
under contract to
the U.S. Military.

space Medicine, Drug Abatement Di-
vision (AAM–800), 800 Independ-
ence Avenue SW., Washington, DC
20591.

(5) A part 145 cer-

tificate holder
who has your
own drug testing
program.

Obtain an Antidrug and Alcohol Misuse

Prevention Program Operations
Specification by contacting your Prin-
cipal Maintenance Inspector or reg-
ister with the FAA, Office of Aero-
space Medicine, Drug Abatement Di-
vision (AAM–800), 800 Independ-
ence Avenue SW., Washington, DC
20591, if you opt to conduct your
own drug testing program.

(6) A contractor

who has your
own drug testing
program.

space Medicine, Drug Abatement Di-
vision (AAM–800), 800 Independ-
ence Avenue SW., Washington, DC
20591, if you opt to conduct your
own drug testing program.

(b) Use the following chart for imple-

menting a drug testing program if you
are applying for a part 119 certificate
with authority to operate under parts
121 or 135 of this chapter, if you intend

to begin operations as defined in § 91.147
of this chapter, or if you intend to
begin air traffic control operations (not
operated by the FAA or by or under
contract to the U.S. Military). Use it
to determine whether you need to have
an Antidrug and Alcohol Misuse Pre-
vention Program Operations Specifica-
tion, Letter of Authorization, or Drug
and Alcohol Testing Program Registra-
tion from the FAA. Your employees
who perform safety-sensitive functions
must be tested in accordance with this
subpart. The chart follows:

If you . . .

You must . . .

(1) Apply for a part

119 certificate
with authority to
operate under
parts 121 or 135.

(i) Have an Antidrug and Alcohol Mis-

use Prevention Program Operations
Specification,

(ii) Implement an FAA drug testing pro-

gram no later than the date you start
operations, and

(iii) Meet the requirements of this sub-

part.

(2) Intend to begin

operations as de-
fined in § 91.147
of this chapter.

(i) Have a Letter of Authorization,

(ii) Implement an FAA drug testing pro-

gram no later than the date you start
operations, and

(iii) Meet the requirements of this sub-

part.

(3) Apply for a part

119 certificate
with authority to
operate under
parts 121 or 135
and intend to
begin operations
as defined in
§ 91.147 of this
chapter.

(i) Have an Antidrug and Alcohol Mis-

use Prevention Program Operations
Specification and a Letter of Author-
ization,

(ii) Implement your combined FAA drug

testing program no later than the
date you start operations, and

(iii) Meet the requirements of this sub-

part.

(4) Intend to begin

air traffic control
operations (at an
air traffic control
facility not oper-
ated by the FAA
or by or under
contract to the
U.S. military).

(i) Register with the FAA, Office of

Aerospace Medicine, Drug Abate-
ment Division (AAM–800), 800 Inde-
pendence Avenue SW., Washington,
DC 20591, prior to starting oper-
ations,

(ii) Implement an FAA drug testing pro-

gram no later than the date you start
operations, and

(iii) Meet the requirements of this sub-

part.

pany that intends to provide safety-
sensitive services by contract to a part
119 certificate holder with authority to

14 CFR Ch. I (1–1–24 Edition)

§ 120.117

operate under parts 121 and/or 135 of
this chapter, an operation as defined in
§ 91.147 of this chapter, or an air traffic
control facility not operated by the
FAA or by or under contract to the
U.S. military, use the following chart
to determine what you must do if you
opt to have your own drug testing pro-
gram.

If you . . .

And you opt to conduct your own drug
program, you must . . .

(1) Are a part 145

certificate holder.

(i) Have an Antidrug and Alcohol Mis-

use Prevention Program Operations
Specification or register with the
FAA, Office of Aerospace Medicine,
Drug Abatement Division (AAM–
800), 800 Independence Avenue,
SW., Washington, DC 20591,

(ii) Implement an FAA drug testing pro-

(iii) Meet the requirements of this sub-

part as if you were an employer.

(2) Are a contractor

(i) Register with the FAA, Office of

Aerospace Medicine, Drug Abate-
ment Division (AAM–800), 800 Inde-
pendence Avenue, SW., Wash-
ington, DC 20591,

(ii) Implement an FAA drug testing pro-

gram no later than the date you start
performing safety-sensitive functions
for a part 119 certificate holder with
authority to operate under parts 121
or 135, or operator as defined in
§ 91.147 of this chapter, or an air
traffic control facility not operated by
the FAA or by or under contract to
the U.S. Military, and

(iii) Meet the requirements of this sub-

part as if you were an employer.

(d)

Obtaining an Antidrug and Alcohol

Misuse Prevention Program Operations
Specification.

(1) To obtain an Antidrug

and Alcohol Misuse Prevention Pro-
gram Operations Specification, you
must contact your FAA Principal Op-
erations Inspector or Principal Mainte-
nance Inspector. Provide him/her with
the following information:

(i) Company name.
(ii) Certificate number.
(iii) Telephone number.
(iv) Address where your drug and al-

cohol testing program records are kept.

(v) Whether you have 50 or more safe-

ty-sensitive employees, or 49 or fewer
safety-sensitive employees. (Part 119
certificate holders with authority to
operate only under part 121 of this

chapter are not required to provide this
information.)

(2) You must certify on your Anti-

drug and Alcohol Misuse Prevention
Program Operations Specification
issued by your FAA Principal Oper-
ations Inspector or Principal Mainte-
nance Inspector that you will comply
with this part and 49 CFR part 40.

(3) You are required to obtain only

one Antidrug and Alcohol Misuse Pre-
vention Program Operations Specifica-
tion to satisfy this requirement under
this part.

(4) You must update the Antidrug

and Alcohol Misuse Prevention Pro-
gram Operations Specification when
any changes to the information con-
tained in the Operation Specification
occur.

(e)

Register your Drug and Alcohol

Testing Program by obtaining a Letter of
Authorization from the FAA in accord-
ance with § 91.147.

(1) A drug and alcohol

testing program is considered reg-
istered when the following information
is submitted to the Flight Standards
District Office nearest your principal
place of business:

(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and al-

cohol testing program records are kept.

(iv) Type of safety-sensitive func-

tions you or your employees perform
(such as flight instruction duties, air-
craft dispatcher duties, maintenance or
preventive maintenance duties, ground
security coordinator duties, aviation
screening duties, air traffic control du-
ties).

(v) Whether you have 50 or more cov-

ered employees, or 49 or fewer covered
employees.

(vi) A signed statement indicating

that your company will comply with
this part and 49 CFR part 40.

(2) This Letter of Authorization will

satisfy the requirements for both your
drug testing program under this sub-
part and your alcohol testing program
under subpart F of this part.

(3) Update the Letter of Authoriza-

tion information as changes occur.
Send the updates to the Flight Stand-
ards District Office nearest your prin-
cipal place of business.

(4) If you are a part 119 certificate

holder with authority to operate under

Federal Aviation Administration, DOT

§ 120.119

parts 121 or 135 and intend to begin op-
erations as defined in § 91.147 of this
chapter, you must also advise the Fed-
eral Aviation Administration, Office of
Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue SW., Washington, DC 20591.

(f)

Obtaining a Drug and Alcohol Test-

ing Program Registration from the FAA.

(1) Except as provided in paragraphs (d)
and (e) of this section, to obtain a Drug
and Alcohol Testing Program Registra-
tion from the FAA, you must submit
the following information to the Office
of Aerospace Medicine, Drug Abate-
ment Division:

(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and al-

cohol testing program records are kept.

(iv) Type of safety-sensitive func-

(v) Whether you have 50 or more cov-

ered employees, or 49 or fewer covered
employees.

(vi) A signed statement indicating

that: your company will comply with
this part and 49 CFR part 40; and you
intend to provide safety-sensitive func-
tions by contract (including sub-
contract at any tier) to a part 119 cer-
tificate holder with authority to oper-
ate under part 121 or part 135 of this
chapter, an operator as defined in
§ 91.147 of this chapter, or an air traffic
control facility not operated by the
FAA or by or under contract to the
U.S. military.

(2) Send this information to the Fed-

eral Aviation Administration, Office of
Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue SW., Washington, DC 20591.

(3) This Drug and Alcohol Testing

Program Registration will satisfy the
registration requirements for both
your drug testing program under this
subpart and your alcohol testing pro-
gram under subpart F of this part.

(4) Update the registration informa-

tion as changes occur. Send the up-

dates to the address specified in para-
graph (f)(2) of this section.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3154, Jan. 20, 2010,
as amended by Amdt. 120–1, 78 FR 42003, July
15, 2013]

§ 120.119 Annual reports.

(a) Annual reports of testing 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 following provisions:

(1) Each part 121 certificate holder

shall submit an annual report each
year.

(2) Each entity conducting a drug

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

(3) 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.

(b) 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
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.

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

14 CFR Ch. I (1–1–24 Edition)

§ 120.121

the accuracy and completeness of the
MIS report, no matter who prepares it.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3154, Jan. 20, 2010,
as amended by Docket DOT–OST–2021–0093, 88
FR 27636, May 2, 2023]

§ 120.121 Preemption.

(a) The issuance of 14 CFR parts 65,

91, 121, and 135 by the FAA preempts
any State or local law, rule, regula-
tion, order, or standard covering the
subject matter of 14 CFR parts 65, 91,
121, and 135, including but not limited
to, drug testing of aviation personnel
performing safety-sensitive functions.

(b) The issuance of 14 CFR parts 65,

91, 121, and 135 does not preempt provi-
sions of state criminal law that impose
sanctions for reckless conduct of an in-
dividual that leads to actual loss of
life, injury, or damage to property
whether such provisions apply specifi-
cally to aviation employees or gen-
erally to the public.

§ 120.123 Drug testing outside the ter-

ritory of the United States.

(a) No part of the testing process (in-

cluding specimen collection, labora-
tory processing, and MRO actions)
shall be conducted outside the terri-
tory of the United States.

(1) Each employee who is assigned to

perform safety-sensitive functions sole-
ly outside the territory of the United
States shall be removed from the ran-
dom testing pool upon the inception of
such assignment.

(2) Each covered employee who is re-

moved from the random testing pool
under this section shall be returned to
the random testing pool when the em-
ployee resumes the performance of
safety-sensitive functions wholly or
partially within the territory of the
United States.

(b) The provisions of this subpart

shall not apply to any individual who
performs a function listed in § 120.105
by contract for an employer outside
the territory of the United States.

§ 120.125 Waivers from 49 CFR 40.21.

An employer subject to this part may

petition the Drug Abatement Division,
Office of Aerospace Medicine, for a
waiver allowing the employer to stand
down an employee following a report of

a laboratory confirmed positive drug
test or refusal, pending the outcome of
the verification process.

(a) Each petition for a waiver must

be in writing and include substantial
facts and justification to support the
waiver. Each petition must satisfy the
substantive requirements for obtaining
a waiver, as provided in 49 CFR 40.21.

(b) Each petition for a waiver must

be submitted to the Federal Aviation
Administration, Office of Aerospace
Medicine, Drug Abatement Division
(AAM–800), 800 Independence Avenue,
SW., Washington, DC 20591.

waiver subject to 49 CFR 40.21(d).

Subpart F—Alcohol Testing

Program Requirements

§ 120.201 Scope.

This subpart contains the standards

and components that must be included
in an alcohol testing program required
by this part.

§ 120.203 General.

(a)

Purpose.

The purpose of this sub-

part is to establish programs designed
to help prevent accidents and injuries
resulting from the misuse of alcohol by
employees who perform safety-sen-
sitive functions in aviation.

(b)

Alcohol testing procedures.

Each

employer shall ensure that all alcohol
testing conducted pursuant to this sub-
part complies with the procedures set
forth in 49 CFR part 40. The provisions
of 49 CFR part 40 that address alcohol
testing are made applicable to employ-
ers by this subpart.

(c)

Employer responsibility.

As an em-

ployer, you are responsible for all ac-
tions of your officials, representatives,
and service agents in carrying out the
requirements of the DOT agency regu-
lations.

§ 120.205 Preemption of State and

local laws.

(a) Except as provided in paragraph

(a)(2) of this section, these regulations
preempt any State or local law, rule,
regulation, or order to the extent that:

(1) Compliance with both the State or

local requirement and this subpart is
not possible; or

Federal Aviation Administration, DOT

§ 120.217

(2) Compliance with the State or

local requirement is an obstacle to the
accomplishment and execution of any
requirement in this subpart.

(b) The alcohol testing requirements

of this title shall not be construed to
preempt provisions of State criminal
law that impose sanctions for reckless
conduct leading to actual loss of life,
injury, or damage to property, whether
the provisions apply specifically to
transportation employees or employers
or to the general public.

§ 120.207 Other requirements imposed

by employers.

Except as expressly provided in these

alcohol testing requirements, nothing
in this subpart shall be construed to af-
fect the authority of employers, or the
rights of employees, with respect to
the use or possession of alcohol, includ-
ing any authority and rights with re-
spect to alcohol testing and rehabilita-
tion.

§ 120.209 Requirement for notice.

Before performing an alcohol test

under this subpart, each employer shall
notify a covered employee that the al-
cohol test is required by this subpart.
No employer shall falsely represent
that a test is administered under this
subpart.

§ 120.211 Applicable Federal regula-

tions.

The following applicable regulations

appear in 49 CFR and 14 CFR:

(a) 49 CFR Part 40—Procedures for

Transportation Workplace Drug Test-
ing Programs

(b) 14 CFR:
(1) § 67.107—First-Class Airman Med-

ical Certificate, Mental.

(2) § 67.207—Second-Class Airman

Medical Certificate, Mental.

(3) § 67.307—Third-Class Airman Med-

ical Certificate, Mental.

(4) § 91.147—Passenger carrying

flights for compensation or hire.

(5) § 135.1—Applicability

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3154, Jan. 20, 2010]

§ 120.213 Falsification.

No individual may make, or cause to

be made, any of the following:

(a) Any fraudulent or intentionally

false statement in any application of
an alcohol testing program.

(b) Any fraudulent or intentionally

false entry in any record or report that
is made, kept, or used to show compli-
ance with this subpart.

for fraudulent purposes, of any report
or record required to be kept by this
subpart.

§ 120.215 Covered employees.

(a) Each employee, including any as-

sistant, helper, or individual in a train-
ing status, who performs a safety-sen-
sitive function listed in this section di-
rectly or by contract (including by sub-
contract at any tier) for an employer
as defined in this subpart must be sub-
ject to alcohol testing under an alcohol
testing program implemented in ac-
cordance with this subpart. This in-
cludes full-time, part-time, temporary,
and intermittent employees regardless
of the degree of supervision. The safe-
ty-sensitive functions are:

(1) Flight crewmember duties.
(2) Flight attendant duties.
(3) Flight instruction duties.
(4) Aircraft dispatcher duties.
(5) Aircraft maintenance or preven-

tive maintenance duties.

(6) Ground security coordinator du-

ties.

(7) Aviation screening duties.
(8) Air traffic control duties.
(9) Operations control specialist du-

ties.

(b) Each employer must identify any

employee who is subject to the alcohol
testing regulations of more than one
DOT agency. Prior to conducting any
alcohol test on a covered employee
subject to the alcohol testing regula-
tions of more than one DOT agency,
the employer must determine which
DOT agency authorizes or requires the
test.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009, as amended by Amdt. 120–2, 79 FR 9973,
Feb. 21, 2014]

§ 120.217 Tests required.

(a)

Pre-employment alcohol testing.

an employer, you may, but are not re-
quired to, conduct pre-employment al-
cohol testing under this subpart. If you

14 CFR Ch. I (1–1–24 Edition)

§ 120.217

choose to conduct pre-employment al-
cohol testing, you must comply with
the following requirements:

(1) You must conduct a pre-employ-

ment alcohol test before the first per-
formance of safety-sensitive functions
by every covered employee (whether a
new employee or someone who has
transferred to a position involving the
performance of safety-sensitive func-
tions).

(2) You must treat all safety-sen-

sitive employees performing safety-
sensitive functions the same for the
purpose of pre-employment alcohol
testing (

i.e.

, you must not test some

covered employees and not others).

(3) You must conduct the pre-employ-

ment tests after making a contingent
offer of employment or transfer, sub-
ject to the employee passing the pre-
employment alcohol test.

(4) You must conduct all pre-employ-

ment alcohol tests using the alcohol
testing procedures of 49 CFR part 40.

(5) You must not allow a covered em-

ployee to begin performing safety-sen-
sitive functions unless the result of the
employee’s test indicates an alcohol
concentration of less than 0.04. If a pre-
employment test result under this
paragraph indicates an alcohol con-
centration of 0.02 or greater but less
than 0.04, the provisions of § 120.221(f)
apply.

(b)

Post-accident alcohol testing.

(1) As

soon as practicable following an acci-
dent, each employer shall test each
surviving covered employee for alcohol
if that employee’s performance of a
safety-sensitive function either con-
tributed to the accident or cannot be
completely discounted as a contrib-
uting factor to the accident. The deci-
sion not to administer a test under this
section shall be based on the employ-
er’s determination, using the best
available information at the time of
the determination, that the covered
employee’s performance could not have
contributed to the accident.

(2) If a test required by this section is

not administered within 2 hours fol-
lowing the accident, the employer shall
prepare and maintain on file a record
stating the reasons the test was not
promptly administered. If a test re-
quired by this section is not adminis-
tered within 8 hours following the acci-

dent, the employer shall cease at-
tempts to administer an alcohol test
and shall prepare and maintain the
same record. Records shall be sub-
mitted to the FAA upon request of the
Administrator or his or her designee.

(3) A covered employee who is subject

to post-accident testing shall remain
readily available for such testing or
may be deemed by the employer to
have refused to submit to testing.
Nothing in this section shall be con-
strued to require the delay of necessary
medical attention for injured people
following an accident or to prohibit a
covered employee from leaving the
scene of an accident for the period nec-
essary to obtain assistance in respond-
ing to the accident or to obtain nec-
essary emergency medical care.

(c)

Random alcohol testing.

(1) Except

as provided in paragraphs (c)(2)
through (c)(4) of this section, the min-
imum annual percentage rate for ran-
dom alcohol testing will be 25 percent
of the covered employees.

(2) The Administrator’s decision to

increase or decrease the minimum an-
nual percentage rate for random alco-
hol testing is based on the violation
rate for the entire industry. All infor-
mation used for this determination is
drawn from MIS reports required by
this subpart. In order to ensure reli-
ability of the data, the Administrator
considers the quality and completeness
of the reported data, may obtain addi-
tional information or reports from em-
ployers, and may make appropriate
modifications in calculating the indus-
try violation rate. Each year, the Ad-
ministrator will publish in the F

ERAL

EGISTER

the minimum annual

percentage rate for random alcohol
testing of covered employees. The new
minimum annual percentage rate for
random alcohol testing will be applica-
ble starting January 1 of the calendar
year following publication.

(3)(i) When the minimum annual per-

centage rate for random alcohol test-
ing is 25 percent or more, the Adminis-
trator may lower this rate to 10 per-
cent of all covered employees if the Ad-
ministrator determines that the data
received under the reporting require-
ments of this subpart for two consecu-
tive calendar years indicate that the
violation rate is less than 0.5 percent.

Federal Aviation Administration, DOT

§ 120.217

(ii) When the minimum annual per-

centage rate for random alcohol test-
ing is 50 percent, the Administrator
may lower this rate to 25 percent of all
covered employees if the Adminis-
trator determines that the data re-
ceived under the reporting require-
ments of this subpart for two consecu-
tive calendar years indicate that the
violation rate is less than 1.0 percent
but equal to or greater than 0.5 per-
cent.

(4)(i) When the minimum annual per-

centage rate for random alcohol test-
ing is 10 percent, and the data received
under the reporting requirements of
this subpart for that calendar year in-
dicate that the violation rate is equal
to or greater than 0.5 percent but less
than 1.0 percent, the Administrator
will increase the minimum annual per-
centage rate for random alcohol test-
ing to 25 percent of all covered employ-
ees.

(ii) When the minimum annual per-

centage rate for random alcohol test-
ing is 25 percent or less, and the data
received under the reporting require-
ments of this subpart for that calendar
year indicate that the violation rate is
equal to or greater than 1.0 percent,
the Administrator will increase the
minimum annual percentage rate for
random alcohol testing to 50 percent of
all covered employees.

(5) The selection of employees for

random alcohol testing shall be made
by a scientifically valid method, such
as a random-number table or a com-
puter-based random number generator
that is matched with employees’ Social
Security numbers, payroll identifica-
tion numbers, or other comparable
identifying numbers. Under the selec-
tion process used, each covered em-
ployee 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 alcohol
screening test results for safety-sen-
sitive employees by the average num-

ber of safety-sensitive employees eligi-
ble for random testing.

(A) To calculate whether you have

met the annual minimum percentage
rate, count all random screening test
results below 0.02 breath alcohol con-
centration, random screening test re-
sults of 0.02 or greater breath alcohol
concentration, and random refusals as
your ‘‘random alcohol screening test
results.’’

(B) To calculate the average number

(ii) As an employer, you may use a

(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.

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

14 CFR Ch. I (1–1–24 Edition)

§ 120.217

rate required for any DOT-regulated
company in the pool.

(7) Each employer shall ensure that

random alcohol 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 covered employee who is notified
of selection for random testing pro-
ceeds to the testing site immediately;
provided, however, that if the employee
is performing a safety-sensitive func-
tion at the time of the notification, the
employer shall instead ensure that the
employee ceases to perform the safety-
sensitive function and proceeds to the
testing site as soon as possible.

(9) A covered employee shall only be

randomly tested while the employee is
performing safety-sensitive functions;
just before the employee is to perform
safety-sensitive functions; or just after
the employee has ceased performing
such functions.

(10) If a given covered employee is

subject to random alcohol testing
under the alcohol testing rules of more
than one DOT agency, the employee
shall be subject to random alcohol test-
ing at the percentage rate established
for the calendar year by the DOT agen-
cy regulating more than 50 percent of
the employee’s functions.

(11) If an employer is required to con-

duct random alcohol testing under the
alcohol 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 such employees

for testing at the highest percentage
rate established for the calendar year
by any DOT agency to which the em-
ployer is subject.

(d)

Reasonable suspicion alcohol test-

ing.

(1) An employer shall require a

covered employee to submit to an alco-
hol test when the employer has reason-
able suspicion to believe that the em-
ployee has violated the alcohol misuse
prohibitions in §§ 120.19 or 120.37.

(2) The employer’s determination

that reasonable suspicion exists to re-
quire the covered employee to undergo

an alcohol test shall be based on spe-
cific, contemporaneous, articulable ob-
servations concerning the appearance,
behavior, speech or body odors of the
employee. The required observations
shall be made by a supervisor who is
trained in detecting the symptoms of
alcohol misuse. The supervisor who
makes the determination that reason-
able suspicion exists shall not conduct
the breath alcohol test on that em-
ployee.

(3) Alcohol testing is authorized by

this section only if the observations re-
quired by paragraph (d)(2) of this sec-
tion are made during, just preceding,
or just after the period of the work day
that the covered employee is required
to be in compliance with this rule. An
employee may be directed by the em-
ployer to undergo reasonable suspicion
testing for alcohol only while the em-
ployee is performing safety-sensitive
functions; just before the employee is
to perform safety-sensitive functions;
or just after the employee has ceased
performing such functions.

(4)(i) If a test required by this section

is not administered within 2 hours fol-
lowing the determination made under
paragraph (d)(2) of this section, the em-
ployer shall prepare and maintain on
file a record stating the reasons the
test was not promptly administered. If
a test required by this section is not
administered within 8 hours following
the determination made under para-
graph (d)(2) of this section, the em-
ployer shall cease attempts to admin-
ister an alcohol test and shall state in
the record the reasons for not admin-
istering the test.

(ii) Notwithstanding the absence of a

reasonable suspicion alcohol test under
this section, no covered employee shall
report for duty or remain on duty re-
quiring the performance of safety-sen-
sitive functions while the employee is
under the influence of, or impaired by,
alcohol, as shown by the behavioral,
speech, or performance indicators of al-
cohol misuse, nor shall an employer
permit the covered employee to per-
form or continue to perform safety-sen-
sitive functions until:

(A) An alcohol test is administered

and the employee’s alcohol concentra-
tion measures less than 0.02; or

Federal Aviation Administration, DOT

§ 120.219

(B) The start of the employee’s next

regularly scheduled duty period, but
not less than 8 hours following the de-
termination made under paragraph
(d)(2) of this section that there is rea-
sonable suspicion that the employee
has violated the alcohol misuse provi-
sions in §§ 120.19 or 120.37.

(iii) No employer shall take any ac-

tion under this subpart against a cov-
ered employee based solely on the em-
ployee’s behavior and appearance in
the absence of an alcohol test. This
does not prohibit an employer with au-
thority independent of this subpart
from taking any action otherwise con-
sistent with law.

(e)

Return-to-duty alcohol testing.

Each employer shall ensure that before
a covered employee returns to duty re-
quiring the performance of a safety-
sensitive function after engaging in
conduct prohibited in §§ 120.19 or 120.37
the employee shall undergo a return-
to-duty alcohol test with a result indi-
cating an alcohol concentration of less
than 0.02. The test cannot occur until
after the SAP has determined that the
employee has successfully complied
with the prescribed education and/or
treatment.

(f)

Follow-up alcohol testing.

(1) Each

employer shall ensure that the em-
ployee who engages in conduct prohib-
ited by §§ 120.19 or 120.37, is subject to
unannounced follow-up alcohol testing
as directed by a SAP.

(2) The number and frequency of such

testing shall be determined by the em-
ployer’s SAP, but must consist of at
least six tests in the first 12 months
following the employee’s return to
duty.

(3) The employer must direct the em-

ployee to undergo testing for drugs in
accordance with subpart E of this part,
in addition to alcohol, if the SAP de-
termines that drug testing is necessary
for the particular employee. Any such
drug testing shall be conducted in ac-
cordance 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
performance of, a safety-sensitive func-
tion. The SAP may terminate the re-
quirement for follow-up testing at any
time after the first six tests have been

conducted, if the SAP determines that
such testing is no longer necessary.

(5) A covered employee shall be test-

ed for alcohol under this section only
while the employee is performing safe-
ty-sensitive functions, just before the
employee is to perform safety-sensitive
functions, or just after the employee
has ceased performing such functions.

(g)

Retesting of covered employees with

an alcohol concentration of 0.02 or greater
but less than 0.04.

Each employer shall

retest a covered employee to ensure
compliance with the provisions of
§ 120.221(f) if the employer chooses to
permit the employee to perform a safe-
ty-sensitive function within 8 hours
following the administration of an al-
cohol test indicating an alcohol con-
centration of 0.02 or greater but less
than 0.04.

§ 120.219 Handling of test results,

record retention, and confiden-
tiality.

(a)

Retention of records.

(1)

General re-

quirement.

In addition to the records re-

quired to be maintained under 49 CFR
part 40, employers must maintain
records required by this subpart in a
secure location with controlled access.

(2)

Period of retention.

(i)

Five years.

(A) Copies of any annual reports sub-

mitted to the FAA under this subpart
for a minimum of 5 years.

(B) Records of notifications to the

Federal Air Surgeon of refusals to sub-
mit to testing and violations of the al-
cohol misuse prohibitions in this chap-
ter by covered employees who hold
medical certificates issued under part
67 of this chapter.

ered employee to dispute the result of
an alcohol test administered under this
subpart.

(D) Records related to other viola-

tions of §§ 120.19 or 120.37.

(ii)

Two years.

Records related to the

testing process and training required
under this subpart.

(A) Documents related to the random

selection process.

(B) Documents generated in connec-

tion with decisions to administer rea-
sonable suspicion alcohol tests.

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

(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.

Federal Aviation Administration, DOT

§ 120.225

§ 120.225 How to implement an alcohol

testing program.

(a) Each company must meet the re-

If you are . . .

You must . . .

(1) A part 119 cer-

tificate holder with
authority to oper-
ate under part
121 or 135.

Obtain an Antidrug and Alcohol Misuse

Prevention Program Operations
Specification by contacting your FAA
Principal Operations Inspector.

(2) An operator as

defined in
§ 91.147 of this
chapter.

Obtain a Letter of Authorization by con-

tacting the Flight Standards District
Office nearest to your principal place
of business.

(3) A part 119 cer-

tificate holder with
authority to oper-
ate under part
121 or part 135
and an operator
as defined in
§ 91.147 of this
chapter.

Complete the requirements in para-

graphs 1 and 2 of this chart and ad-
vise the Flight Standards District Of-
fice and Drug Abatement Division
that the § 91.147 operation will be in-
cluded under the part 119 testing
program. Contact Drug Abatement
Division at FAA, Office of Aerospace
Medicine, Drug Abatement Division
(AAM–800), 800 Independence Ave-
nue SW., Washington, DC 20591.

(4) An air traffic

control facility not
operated by the
FAA or by or
under contract to
the U.S. Military.

space Medicine, Drug Abatement Di-
vision (AAM–800), 800 Independ-
ence Avenue SW., Washington, DC
20591.

(5) A part 145 cer-

tificate holder
who has your
own alcohol test-
ing program.

Obtain an Antidrug and Alcohol Misuse

Prevention Program Operations
Specification by contacting your Prin-
cipal Maintenance Inspector or reg-
ister with the FAA Office of Aero-
space Medicine, Drug Abatement Di-
vision (AAM–800), 800 Independ-
ence Avenue SW., Washington, DC
20591, if you opt to conduct your
own alcohol testing program.

(6) A contractor

who has your
own alcohol test-
ing program.

space Medicine, Drug Abatement Di-
vision (AAM–800), 800 Independ-
ence Avenue SW., Washington, DC
20591, if you opt to conduct your
own alcohol testing program.

(b) Use the following chart for imple-

menting an alcohol testing program if
you are applying for a part 119 certifi-
cate with authority to operate under
part 121 or part 135 of this chapter, if
you intend to begin operations as de-
fined in § 91.147 of this chapter, or if
you intend to begin air traffic control
operations (not operated by the FAA or
by or under contract to the U.S. Mili-
tary). Use it to determine whether you
need to have an Antidrug and Alcohol

Misuse Prevention Program Operations
Specification, Letter of Authorization,
or Drug and Alcohol Testing Program
Registration from the FAA. Your em-
ployees who perform safety-sensitive
duties must be tested in accordance
with this subpart. The chart follows:

If you . . .

You must . . .

(1) Apply for a part

119 certificate
with authority to
operate under
parts 121 or 135.

(i) Have an Antidrug and Alcohol Mis-

use Prevention Program Operations
Specification,

(ii) Implement an FAA alcohol testing

program no later than the date you
start operations, and

(iii) Meet the requirements of this sub-

part.

(2) Intend to begin

operations as de-
fined in § 91.147
of this chapter.

(i) Have a Letter of Authorization,
(ii) Implement an FAA alcohol testing

program no later than the date you
start operations, and

(iii) Meet the requirements of this sub-

part.

(3) Apply for a part

119 certificate
with authority to
operate under
parts 121 or 135
and intend to
begin operations
as defined in
§ 91.147 of this
chapter.

(i) Have an Antidrug and Alcohol Mis-

use Prevention Program Operations
Specification and a Letter of Author-
ization,

(ii) Implement your combined FAA al-

cohol testing program no later than
the date you start operations, and

(iii) Meet the requirements of this sub-

part.

(4) Intend to begin

air traffic control
operations (at an
air traffic control
facility not oper-
ated by the FAA
or by or under
contract to the
U.S. military).

(i) Register with the FAA, Office of

Aerospace Medicine, Drug Abate-
ment Division (AAM–800), 800 Inde-
pendence Avenue SW., Washington,
DC 20591, prior to starting oper-
ations,

(ii) Implement an FAA alcohol testing

program no later than the date you
start operations, and

(iii) Meet the requirements of this sub-

part.

pany that intends to provide safety-
sensitive services by contract to a part
119 certificate holder with authority to
operate under parts 121 and/or 135 of
this chapter or an operator as defined
in § 91.147 of this chapter, use the fol-
lowing chart to determine what you
must do if you opt to have your own al-
cohol testing program.

14 CFR Ch. I (1–1–24 Edition)

§ 120.225

If you . . .

And you opt to conduct your own Alco-
hol Testing Program, you must . . .

(1) Are a part 145

certificate holder.

(i) Have an Antidrug and Alcohol Mis-

use Prevention Program Operations
Specifications or register with the
FAA, Office of Aerospace Medicine,
Drug Abatement Division (AAM–
800), 800 Independence Avenue,
SW., Washington, DC 20591,

(ii) Implement an FAA alcohol testing

program no later than the date you
start performing safety-sensitive
functions for a part 119 certificate
holder with the authority to operate
under parts 121 and/or 135, or oper-
ator as defined in § 91.147 of this
chapter, and

(iii) Meet the requirements of this sub-

part as if you were an employer.

(2) Are a contractor

(i) Register with the FAA, Office of

Aerospace Medicine, Drug Abate-
ment Division (AAM–800), 800 Inde-
pendence Avenue, SW., Wash-
ington, DC 20591,

(ii) Implement an FAA alcohol testing

program no later than the date you
start performing safety-sensitive
functions for a part 119 certificate
holder with authority to operate
under parts 121 and/or 135, or oper-
ator as defined in § 91.147 of this
chapter, and

(iii) Meet the requirements of this sub-

part as if you were an employer.

(d)(1) To obtain an Antidrug and Al-

cohol Misuse Prevention Program Op-
erations Specification, you must con-
tact your FAA Principal Operations In-
spector or Principal Maintenance In-
spector. Provide him/her with the fol-
lowing information:

(i) Company name.
(ii) Certificate number.
(iii) Telephone number.
(iv) Address where your drug and al-

cohol testing program records are kept.

(v) Whether you have 50 or more cov-

ered employees, or 49 or fewer covered
employees. (Part 119 certificate holders
with authority to operate only under
part 121 of this chapter are not re-
quired to provide this information.)

(2) You must certify on your Anti-

drug and Alcohol Misuse Prevention
Program Operations Specification,
issued by your FAA Principal Oper-
ations Inspector or Principal Mainte-
nance Inspector, that you will comply
with this part and 49 CFR part 40.

(3) You are required to obtain only

one Antidrug and Alcohol Misuse Pre-
vention Program Operations Specifica-
tion to satisfy this requirement under
this part.

(4) You must update the Antidrug

and Alcohol Misuse Prevention Pro-
gram Operations Specification when
any changes to the information con-
tained in the Operation Specification
occur.

(e)

Register your Drug and Alcohol

Testing Program by obtaining a Letter of
Authorization from the FAA in accord-
ance with § 91.147.

(1) A drug and alcohol

testing program is considered reg-
istered when the following information
is submitted to the Flight Standards
District Office nearest your principal
place of business:

(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and al-

cohol testing program records are kept.

(iv) Type of safety-sensitive func-

(v) Whether you have 50 or more cov-

ered employees, or 49 or fewer covered
employees.

(vi) A signed statement indicating

that your company will comply with
this part and 49 CFR part 40.

(2) This Letter of Authorization will

satisfy the requirements for both your
drug testing program under subpart E
of this part and your alcohol testing
program under this subpart.

(3) Update the Letter of Authoriza-

tion information as changes occur.
Send the updates to the Flight Stand-
ards District Office nearest your prin-
cipal place of business.

(4) If you are a part 119 certificate

holder with authority to operate under
part 121 or part 135 and intend to begin
operations as defined in § 91.147 of this
chapter, you must also advise the Fed-
eral Aviation Administration, Office of
Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue SW., Washington, DC 20591.

(f)

Obtaining a Drug and Alcohol Test-

ing Program Registration from the FAA.

(1) Except as provided in paragraphs (d)
and (e) of this section, to obtain a Drug
and Alcohol Testing Program Registra-
tion from the FAA you must submit
the following information to the Office

Federal Aviation Administration, DOT

Pt. 121

of Aerospace Medicine, Drug Abate-
ment Division:

(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and al-

cohol testing program records are kept.

(iv) Type of safety-sensitive func-

(v) Whether you have 50 or more cov-

ered employees, or 49 or fewer covered
employees.

(vi) A signed statement indicating

(2) Send this information to the Fed-

eral Aviation Administration, Office of
Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue SW., Washington, DC 20591.

(3) This Drug and Alcohol Testing

Program Registration will satisfy the
registration requirements for both
your drug testing program under sub-
part E of this part and your alcohol
testing program under this subpart.

(4) Update the registration informa-

tion as changes occur. Send the up-
dates to the address specified in para-
graph (f)(2) of this section.

[Doc. No. FAA–2008–0937, 74 FR 22653, May 14,
2009; Amdt. 120–0A, 75 FR 3154, Jan. 20, 2010,
as amended by Amdt. 120–1, 78 FR 42005, July
15, 2013]

§ 120.227 Employees located outside

the U.S.

(a) No covered employee shall be

tested for alcohol misuse while located
outside the territory of the United
States.

(1) Each covered employee who is as-

signed to perform safety-sensitive
functions solely outside the territory

of the United States shall be removed
from the random testing pool upon the
inception of such assignment.

(2) Each covered employee who is re-

moved from the random testing pool
under this paragraph shall be returned
to the random testing pool when the
employee resumes the performance of
safety-sensitive functions wholly or
partially within the territory of the
United States.

(b) The provisions of this subpart

shall not apply to any person who per-
forms a safety-sensitive function by
contract for an employer outside the
territory of the United States.

PART 121—OPERATING REQUIRE-

MENTS: DOMESTIC, FLAG, AND
SUPPLEMENTAL OPERATIONS

PECIAL

EDERAL

VIATION

EGULATION

50–2 [N

OTE

]

PECIAL

EDERAL

VIATION

EGULATION

71 [N

OTE

]

PECIAL

EDERAL

VIATION

EGULATION

97 [N

OTE

]

Subpart A—General

Sec.
121.1

Applicability.

121.2

Compliance schedule for operators

that transition to part 121; certain new
entrant operators.

121.4

Applicability of rules to unauthorized

operators.

121.7

Definitions.

121.9

Fraud and falsification.

121.11

Rules applicable to operations in a

foreign country.

121.15

Carriage of narcotic drugs, mari-

huana, and depressant or stimulant drugs
or substances.

Subpart B—Certification Rules for Domestic

and Flag Air Carriers

[

Reserved

]

Subpart C—Certification Rules for Supple-

mental Air Carriers and Commercial
Operators

[

Reserved

]

Subpart D—Rules Governing All Certificate

Holders Under This Part

[

Reserved

]

Subpart E—Approval of Routes: Domestic

and Flag Operations

121.91

Applicability.

121.93

Route requirements: General.

121.95

Route width.

121.97

Airports: Required data.