U.S. Dep artment of Transportation Federal Aviation Administration Advisory Circular Subject: Guidelines to Establish, Implement, and Maintain a DOT/FAA Drug and Alcohol Testing Program Date: April 8, 2025 Initiated By: AAM-800 AC No: 120-126A 1 PURPOSE. This advisory circular (AC) provides guidelines for establishing, implementing, and maintaining a drug and alcohol testing program in accordance with Title 14 of the Code of Federal Regulations (14 CFR), part 120 and Title 49 of the CFR (49 CFR) part 40.
The mate rial in this AC is advisory in nature and does not constitute a regulation, is not legally binding in its own right, and neither the Department of Transportation (DOT) nor the Federal Aviation Administration (FAA) will rely on it as a separate basis for affirmative enforcement action or other administrative penalty. This document describes acceptable means, but not the only means, for demonstrating compliance with the applicable regulations.
The FAA will consider other means of compliance that meet the intent of the DOT/FAA testing regulations promulgated in 14 CFR part 120 and 49 CFR part 40.
The content of this AC does not change or create any additional regulatory requirements, nor does it authorize changes in, or permit deviations from, existing regulatory requirements.
2 AUDIENCE. This AC is addressed to the following persons as listed under 14 CFR § 120.1:
• All part 119 certificate holders operating under 14 CFR part 121 or part 135.
• All air traffic control facilities not operated by the FAA or by or under contract to the U.S. military.
• All operators as defined in 14 CFR § 91.147.
• Any individual who performs a safety-sensitive function, directly or by contract, listed in 14 CFR §§ 120.105 and 120.215.1.
• All part 145 certificate holders who perform safety-sensitive functions and elect to implement a drug and alcohol testing program under part 120.
• All contractors who elect to implement a drug and alcohol testing program under part
120.
1 Safety-sensitive functions include flight crewmember, flight attendant, flight instruction, aircraft dispatcher, aircraft maintenance and preventive maintenance, ground security coordinator, aviation screening, air traffic control, and operations control specialist duties. According to 49 CFR § 40.13 (h), no one is permitted to conduct a DOT drug or alcohol test on an individual who is not a DOT-regulated employee. Refer to Section 7.2 and Appendix A of this AC for more information.
2 3 SCOPE. This AC supports the requirements specified in 14 CFR part 120, the FAA’s Drug and Alcohol Testing Program, and Title 49 CFR part 40, the DOT’s Procedural Regulation, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, and best practices for establishing, implementing, and maintaining a DOT/FAA drug and alcohol testing program.
3.1 W hat This AC Cancels. AC 120-126, Guidelines to Establish, Implement, and Maintain a DOT/FAA Drug and Alcohol Testing Program, dated July 10, 2024, is canceled.
4 RELATED REGULATIONS AND DIRECTIVES. You can locate the current regulations listed below at http://www.ecfr.gov, and the current directives at http://www.faa.gov/regulations_policies/:
• 14 CFR part 120 (titled 'Drug and Alcohol Testing Program') describes who will be tested and when, the prohibited conduct and consequences of drug use or alcohol misuse, training, and education requirements, reporting and recordkeeping requirements, and other obligations when establishing a DOT/FAA testing program, as set forth by the FAA.
• 49 CFR part 40 (titled 'Procedures for Transportation Workplace Drug and Alcohol Testing Programs') describes the collection, testing, reporting, rehabilitation requirements, and other obligations that apply to transportation employers, employees, and service agents, as set forth by the DOT and defined under 49 CFR §
40.3.
• FAA’s Drug and Alcohol Compliance and Enforcement Surveillance Handbook, Order 9120.1, documents the surveillance procedures used by the FAA’s Drug Abatement Division to assess the compliance of aviation industry employers, contractors, and service agents with the drug and alcohol testing requirements in the CFR. FAA's Advisory Circular for Voluntary Disclosure Reporting Program for Apparent Violations of the Drug and Alcohol Testing Regulations (AC 120-117) provides information and guidance material on how to voluntarily disclose an apparent violation of the DOT/FAA testing regulations.
• FAA’s Advisory Circular for Pilot Records Database (PRD) and Pilot Records Improvement Act (AC 120-68) provides air carriers, opera tors and pilots guidance regarding the PRD requirements outlined in 14 CFR part 111 (titled 'Pilot Records Database').
5 BACKGROUND. In 1988, the FAA promulgated the drug testing requirements in 14 CFR part 121, appendix I to prohibit safety and security-sen sitive employees from performing a safety-sensitive function for a commercial operator while the employee had a prohibited drug in his or her system as evidenced by a drug test showing the presence of drugs or drug metabolites. After several transportation inci dents with evidence of drug or alcohol use between 1978 and 1991, Congress recognized the safety need for ensuring drug-and alcoholfree transportation employees and passed the Omnibus Transportation Employee Testing Act of 1991. The "Act" am ended the Federal Aviation Act of 1958 to require the FAA and other DOT Agencies to implement drug and alcohol testing of safety-sensitive transportation
3 employees. On February 15, 1994, the FAA published the alcohol testing requirements in 14 CFR part 121, appendix J. The drug and alcohol regulations in part 121, appendices I and J, as well as cross-references throughout parts 61, 63, 65, and 135 remained static for almost two decades. On May 14, 2009, the FAA published 14 CFR part 120 to streamline these scattered requirements, as it is situated today. The procedures for collecting and testing specimens are established under the DOT’s 49 CFR part 40, which applies to FAA-regu lated employers and employees.
The pur pose of the DOT/FAA drug and alcohol testing program is to help prevent accidents and injuries resulting from the use of prohibited drugs or the misuse of alcohol by employees who perform safety-sensitive functions in aviation. Testing is designed to detect and deter employees from using prohibited drugs or misusing alcohol while performing safety or security-related duties. The DOT/FAA regulations incorporate specific procedures that ensure program integrity and provide due process. Employers help ensure safety by communicating to employees that use of illegal drugs and alcohol misuse is prohibited.
Since testing began in the late 1980s, thousands of individuals and employees have been prohibited from performing safety-sensitive duties while under the influence of drugs and alcohol. To review DOT testing data reported by employers that submitted an annual Management Information System (MIS) report since 2003, visit the DOT’s Office of Drug and Alcohol Policy and Compliance (ODAPC) website at www.transportation.gov/odapc/DOT_Agency_MIS_Data.
6 DRUG AND ALCOHOL TESTING PROGRAM REQUIREMENTS. This AC outlines the process and best practices for an employer2 and contractor3 to start and maintain a testing program that is compliant with 14 CFR part 120 and 49 CFR part 40 (as outlined in paragraph 4 of this AC). The FAA’s Drug and Alcohol Testing Program regulation, 14 CFR part 120, prescribes the drug testing requirements under subpart E, and the alcohol testing requirements under subpart F. The two subparts are similar in the types of testing, covered employees, reporting requirements, and implementation procedures to establish a program.
There are small differences in training and when an employee is subject to testing.
7 HO W TO ESTABLISH A DOT/FAA DRUG AND ALCOHOL TESTING PROGRAM.
In accordance with 14 CFR §§ 120.117 and 120.225, which prescribe the requirements to implement a drug and alcohol testing program, each employer or contractor must establish its DOT/FAA drug and alcohol testing program using a Drug and Alcohol Testing Program Operations Specification (OPSS), Letter of Authorization (LOA), or Drug and Alcohol Testing Registration with the FAA. Each employer or contractor must provide the FAA with
2 Defined in 14 CFR § 120.7(g) as a part 119 certificate holder with authority to operate under 14 CFR parts 121 and/or 135, an operator as defined in 14 CFR § 91.147, or an air traffic control facility not operated by the FAA or by,or under contract to,the U.S. Military.
3 Defined in 14 CFR § 120.7(d) as an individual or company that performs a safety- sens itive function by contract for an employer or another contractor.
4 specific information4 to establish its program and certify compliance with the DOT/FAA testing regulations specified in 14 CFR part 120 and 49 CFR part 40. Once the program is established, the employer is authorized to conduct DOT/FAA drug and alcohol testing and must implement the program based on the type of operation it conducts.
This section explains how each type of employer can e stablish and implement its program, and any requirements for updating or renewing the program information (if necessary).
7.1 Part 119 Certificate Holder with Authority to Operate under Part 121 and/or
135. (See 14 CFR §§ 120.117(a)(1) and (b)(1), 120.225(a)(1) and (b)(1))
If you are a part 119 certificate holder with authority to operate under parts 121 and/or 135, you must obtain a Drug and Alcohol Testing Program OPSS paragraph (A449) by contacting your FAA Principal Operations Inspector (POI).
Once your operating certificate and A449 are active, you must implement your FAA- mandated testing program, meeting the requirements of 14 CFR part 120 and 49 CFR part 40, no later than the date you start operations. Refer to Section 7 of this AC for information about implementation of a testing program. Because the FAA issues the A449 on reliance, in part, of information you provided about the particular program, you must notify your POI in accordance with 14 CFR §§ 120.117(d)(4) and
120.225(d)(4) when the A449 infor mation changes. The A449 must remain part of your OPSS while your operating certificate is active. If you have a lapse in your operations or testing program, or you merge with or acquire another company, you must contact the FAA’s Drug Abatement Division immediately at drugabatement@faa.gov or 202- 267-8442 for guidance, as the basis upon which the A449 was issued will have changed.
Once your A449 is active, you are obligated to provide the FAA’s Drug Abatement Division representatives access to your facility and records for review upon request in accordance with 49 CFR § 40.331.5
7.2 Operator as Defined in 14 CF R § 91.147.6 (See 14 CFR §§ 120.117(a)(2) and
(b)(2), 120.225(a)(2) and (b)(2)) If you are an air tour operator as defined under 14 CFR § 91.147, you must register your program by obtaining an LOA. You may obtain an LOA by contacting the Flight Standards District Office (FSDO) nearest to your principal place of business. When requesting your LOA from the FSDO, you are not obligated to demonstrate you have
4 Information includes the company name, certificate number (for part 121, 135, and 145 operators), telephone number, address where the drug and alcohol testing program records are kept, list of the types of safety- sensitive employees included in the program (for operators with an A049 or registration), and whether you have 50 or more, or 49 or fewer safety-sensitive employees.
5 Reference 49 CFR § 40.331, Inspection Authority under the Omnibus Transportation Employee Testing Act of 1991 (49 U.S.C. §§ 45101-45107) and FAA’s general statutory authority outlined in 49 U.S.C. §§ 106(g) and 44701.
FAA’s Drug and Alcohol Compliance and Enforcement Surveillance Handbook, Order 9120.1 , is available at https://www.faa.gov/regulations_policies/orders_notices/index.cfm/go/document.information/documentID/1041756 .
6 14 CFR 91.147 prescribes regulations for air tour operator conducting passenger -carrying flights for compensation or hire in an airplane or helicopter within a 25-statute mile radius of an airport.
5 implemented a drug and alcohol testing program. The FSDO will issue your LOA as an OPSS paragraph (A049), which will satisfy the requirements for registering your program.
Once your A049 is active, you must implement your testing program, meeting the requirements of 14 CFR part 120 and 49 CFR part 40, no later than the date you start operations. Refer to Section 7 of this AC for information about implementation of a testing program. Because the FAA issues the A049 on reliance, in part, on information you provided about the particular program, you must notify the FSDO in accordance with 14 CFR §§ 120.117(e)(3) and 120.225(e)(3) when the A 049 information you initially provided changes. If you have a lapse in your operations or testing program, or you merge with or acquire another company, you must contact the FAA’s Drug Abatement Division immediately at drugabatement@faa.gov or 202-267-8442 for guidance, as the basis upon which the A049 was issued will have changed.
Once your A049 is active, you are obligated to provide the FAA’s Drug Abatement Division representatives access to your facility and records for review upon request in accordance with 49 CFR § 40.331.
7.2.1 A part 121 or 135 operator that also conducts air tour operations under 14 CFR § 91.147. (See 14 CFR §§ 120.117(a)(3) and (b)(3), 120.225(a)(3) and
(b)(3)) If you are a part 121 or 135 operator that also conducts air tour operations as defined in 14 CFR § 91.147, you must obtain both the A449 and A049 in accordance with 14 CFR §§ 120.117(a)(1) and (2), and 120.225(a)(1) and (2) (described in section 6.1 and 6.2 herein). To document the A049 as part of the operator’s program, the FSDO or POI will add the ‘A3’ annotation and part 119’s certificate number to the A049. The annotation7 will allow the FSDO and the FAA’s Drug Abatement Division to document the LOA without requiring a separate testing program. You must notify the FAA’s Drug Abatement Division in writing at drugabatement@faa.gov that your part 121 or 135 program will include the employees that perform air tour operations in accordance with 14 CFR §§
120.117(a)(3) and 120.225(a)(3).
7.3 Air Traffic Control Facility Not Operated by the FAA, by, or u nder Contract to the U.S. Military. (See 14 CFR §§ 120.117(a)(4) and (b)(4), 120.225(a)(4) and
(b)(4)) If you operate an air traffic control facility that is not operated by the FAA or by or under contract to the U.S. Military, you must register with the FAA’s Drug Abatement Division. Visit www.faa.gov/go/drugabatement for a sample registration form and instructions.
Once your registration number is active, you must implement your FAA-mandated testing program, meeting the requirements under 14 CFR part 120 and 49 CFR part 40,
7 The use of the annotations are explained in FAA Order 8900.1, Chapter 18, Sections 3 and 10, as part of issuing the A449 and/or A049.
6 no later than the date you start performing safety-sensitive functions. Because the FAA issues the registration on reliance, in part, of information you provided about the particular program, you must notify the FAA’s Drug Abatement Division in accordance with 14 CFR §§ 120.117(f)(4) and 120.225(f)(4) when the i nformation changes or 30 days before it expires. The registration is valid until you cancel it, or your facility is no longer operating. If you have a lapse in your operations or testing program, or you merge with or acquire another company, you must contact the FAA’s Drug Abatement Division immediately at drugabatement@faa.gov or 202-267-8442 for guidance, as the basis upon which the registration was issued will have changed.
Once your registration is active, you are obligated to provide the FAA’s Drug Abatement Division representatives access to your facility and records for review upon request in accordance with 49 CFR § 40.331.
7.4 Part 145 Repair Station that Conducts its own Drug and Alcohol Testing Program. (See 14 CFR §§ 120.117(a)(5) and (c)(1), 120.225(a)(5) and (c)(1)) If you are a part 145 certificated repair station and elect to conduct your own DOT/FAA drug and alcohol testing to perform safety-sensitive duties by contract for an employer, you must obtain a Drug and Alcohol Testing Program OPSS paragraph (A449) by contacting your FAA Principal Maintenance Inspector (PMI). The PMI will document your A449 with an ‘A1’ as a stand-alone program, where the employees are not tested by another employer or contractor. While some repair stations are authorized for a specific rating, this limitation does not affect the A449 or the repair station’s ability to conduct its own FAA drug and alcohol testing program. The A449 is merely the documentation to ensure that the repair station conducts its own testing in accordance with the drug and alcohol testing regulations.
Once your A449 is active, you must implement your FAA-mandated testing program, meeting the requirements under 14 CFR part 120 and 49 CFR part 40 as an employer, no later than the date you start performing safety-sensitive functions for an employer.
Refer to Section 7 of this AC for information about implementation of a testing program. Because the FAA issues the A449 on reliance, in part, on information you provided about the particular program, you must notify your PMI in accordance with 14 CFR §§ 120.117(d)(4) and 120.225(d)(4) when the A449 information changes. If you no longer perform safety-sensitive functions for an employer, we suggest you remove the A449 and stop testing. To remove your A449, contact your PMI. In accordance with 49 CFR § 40.13(h), no one is permitted to conduct a DOT drug or alcohol test on an individual who is not a DOT-regulated employee as defined in 14 CFR § 120.7(f). If you have a lapse in your operations or testing program, or you merge with or acquire another employer, you must contact the FAA’s Drug Abatement Division immediately at drugabatement@faa.gov or 202-267-8442 for guidance, as the basis upon which the A449 was issued will have changed.
Once your A449 is active, you are obligated to provide the FAA’s Drug Abatement Division representatives access to your facility and records for review upon request in accordance with 49 CFR § 40.331.
7.4.1 If your repair station employees are tested under an affiliated contractor registration, your PMI will include the ‘A2’ annotation and registration number as part of your A449. The registered party is responsible for compliance with the drug and alcohol testing regulations.
7.4.2 If your repair station certificate is held by a part 121 or 135 or air tour operator as defined in 14 CFR § 91.147, and the employees are tested under an A449 or A049, your PMI will include the ‘A3’ annotation and certificate or LOA number as part of your own A449. The part 121, 135, or air tour operator is responsible for compliance with the drug and alcohol testing regulations.
7.5 Co ntractor that Conducts its own Drug and Alcohol Testing Program. (See 14 CFR §§ 120.117(a)(6) and (c)(2), 120.225(a)(6) and (c)(2)) If you are an individual or company and elect to conduct your own DOT/FAA drug and alcohol testing program to perform safety-sensitive duties by contract for an employer, including subcontract at any tier, you must register with the FAA’s Drug Abatement Division. Visit www.faa.gov/go/drugabatement for a sample registration form and instructions.
Once your registration is active and the FAA issued you a specific identification number, you must implement your FAA-mandated testing program, meeting the requirements under 14 CFR part 120 and 49 CFR part 40 as an employer, no later than the date you start performing safety-sensitive functions for an employer. Because the FAA issues the registration on reliance, in part, of information provided about the particular program, you must notify the FAA’s Drug Abatement Division in accordance with 14 CFR §§ 120.117(f)(4) and 120.225(f)(4) when the registration information changes or 30 days before it expires. The registration is valid until you cancel it, or it expires and is not renewed. If you have a lapse in your operations or testing program, or you merge with or acquire another company, you must contact the FAA’s Drug Abatement Division immediately at drugabatement@faa.gov or 202-267-8442 for guidance, as the basis upon which the registration was issued will have changed. If you no longer perform safety-sensitive functions for an employer, we suggest you cancel your registration and stop testing. In accordance with 49 CFR § 40.13(h), no one is permitted to conduct a DOT drug or alcohol test on an individual who is not a DOT- regulated employee, as defined in 14 CFR § 120.7(f).
Once your registration is active, you are obligated to provide the FAA’s Drug Abatement Division representatives access to your facility and records for review upon request in accordance with 49 CFR § 40.331.
7.5.1 If your registration includes employees that perform safety-sensitive functions for more than one part 145 repair station, it will be documented on the registration. The part 145’s PMI will include the ‘A2’ annotation and registration number on the part 145’s A449. If the information changes, you must amend your registration, as the basis upon which the registration was issued will have
8 changed. As the registered contractor, you are responsible for compliance with the drug and alcohol testing regulations.
8 HOW TO IMPLEMENT AND MAINTAIN A DOT/FAA DRUG AND ALCOHOL TESTING PROGRAM IN ACCORDANCE WITH 14 CFR PART 120 AND 49 CFR PART 40. Once you establish your DOT/FAA testing program, you must implement and maintain your program to ensure safety-sensitive employees, hired directly or by contract (including subcontract at any tier), are subject to testing in accordance with 14 CFR part 120 and 49 CFR part 40. Compliance is para mount to ensuring the safety of the traveling public;
therefore, you should dedicate the time and resources to set up and maintain a compliant program. You should establish your testing policies and document them in writing to ensure your representatives and employees have a clear understanding of the requirements and consequences of the program. Implementation information is contained in this section to help you, and Appendices A and B of this AC provide additional detail about the safety-sensitive employee functions and random testing.
To get started, you should review this AC and the DOT/FAA testing regulations in their entirety. You should visit the FAA’s website at www.faa.gov/go/drugabatement and the DOT’s website at www.transportation.gov/odapc to review the many resources available to help you (including an Employee and Employer Guide, videos, sample policies, etc.).
Prepare yourself before you start! Remember that you may hire a service agent8 to assist you in your collections, managing your random testing, and providing employee training or educational materials. Keep in mind that each employer is responsible for all the actions of its service agents and representatives as it relates to compliance with the DOT/FAA regulations, as specified in 14 CFR §§ 120.103(c), 120.203(c), and 49 CFR § 40.11(b).
As an overview, with further detail in following sections, when developing your DOT/FAA testing program, you must:
• Authorize an employee to act as the Designated Employer Representative (DER) in accordance with 49 CFR § 40.3.
• Determine which employees are performing safety-sensitive functions and subject to testing in accordance with 49 CFR § 40.13(h) and 14 CFR §§ 120.105 and 120.225.
• Conduct pre-employment drug testing and obtain negative results prior to hiring safety-sensitive employees or transferring employees into safety-sensitive positions in accordance with 14 CFR § 120.109(a)(1) and (a)(2).
• Obtain written consent and request drug and alcohol testing information for employees who seek to perform safety-sensitive duties in accordance with 49 CFR §
40.25.
8 A service agent is defined in 49 CFR § 40.3 as any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements.
This includes, but is not limited to, collectors, breath alcohol technicians (BATs) and screening test technicians (STTs), laboratories, medical review officers (MROs), substance abuse professionals (SAPs), and consortium/third party administrators (C/TPAs).
• Educate and train employees and supervisors on the effects and consequences of drug use and alcohol misuse, and supervisors who will make reasonable cause/suspicion9 testing determinations on how to make these determinations in accordance with 14 CFR §§ 120.115 and 120.223.
• Establish your random drug and alcohol testing to ensure that all employees have an equal chance of being tested each time selections are made, and that you meet the minimum annual testing rates established annually by the FAA Administrator in accordance with 14 CFR §§ 120.109(b) and 120.217(c).
• Take actions associated with testing violations, which may require reporting to the FAA in accordance with 49 CFR § 40.289.
• Maintain your records in accordance with the timelines established under 14 CFR §§
120.113(d)(6) and 120.219(a)(2), and 49 CFR § 40.333 and in a secure and confidential manner.
• Ensure that a contract employee who is not included under that employer's FAA- ma ndated drug and alcohol testing program only performs a safety-sensitive function if that contract employee is included under the contractor's FAA-mandated drug and alcohol testing program and is performing a safety-sensitive function on behalf of that contractor (i.e., within the scope of employment with the contractor) in accordance with 14 CFR § 120.7(g).
• Ensure all your service agents meet the requirements of the regulations in accordance with 49 CFR §§ 40.11(b) and 40.341.
The above list highlights the basic program requirements that apply as you implement testing. The issuance of a A449/A049/registration includes certification that the employer or contractor will comply with the DOT/FAA testing regulations. Doing everything right from the start helps you meet the requirements and ensure public safety.
Refer to the resources available online, and do not hesitate to contact the FAA’s Drug Abatement Division at drugabatement@faa.gov or 202-267-8442 if you have any questions.
8.1 Designated Employer Representative (DER). Acc ording to 49 CFR § 40.3, a DER is “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed, and to make required decisions in the testing and evaluation processes. The DER also receives the test results and other communications for the employer, consistent with the requirements of this part.” A DER must ensure that the information is maintained in accordance with the confidentiality requirements outlined in 14 CFR §§ 120.111(c) and
120.219(c)(1), as well as 49 CFR § 40.321. Essentially, the DER is critical to the success and compliance of your DOT/FAA drug and alcohol testing program and will often communicate with the FAA on behalf of the employer.
9 Reasonable cause drug testing is outlined in 14 CFR § 120.109(d), and reasonable suspicion alcohol testing is outlined in 14 CFR § 120.217(d). More information about this category of testing is explained in paragraph 8.3.3 of this AC.
10 Pursuant to the definition set forth in 49 CFR § 40.3,10 a service agent cannot act as a DER, and DOT would not authorize a “DER-for-hire” concept where a person is under contract by several companies to serve as their DER. In addition, employers are prohibited from releasing information regarding an employee’s test results, evaluation, or rehabilitation to a third party in accordance with 49 CFR part 40 as specified in 14 CFR §§ 120.111(c) and 120.219(c). It is possible for a corporation that owns multiple employers, each of which has its own testing program, to assign someone as an alcohol and drug program manager (ADPM) to assist the DER for each employer. That ADPM cannot act as the DER for any employer and must ensure the confidentiality of the test results between all the different DERs within the larger corporation. The ADPM is essentially acting as a Consortium/Third Party Administrator (C/TPA), which is a service agent as defined in 49 CFR § 40.3 and cannot be a DER. The FAA’s communications will be with the DER; however, the ADPM may be involved in the surveillance activities, including those of an FAA inspection or investigation. To ensure the protection of the employee’s information, the DER and ADPM must ensure test results are protected and confidentiality is not breached.
The r egulations do not prohibit a safety-sensitive employee from acting as the DER.
However, the FAA and DOT discourage this practice to avoid unintentional testing violations. For example, if the DER is a mechanic and sees they are selected for a random drug test, seeing their name on the list could be deemed notification to report for a test. Therefore, the mechanic must immediately report for the test. If they do not and wait to report for the test, that delay could result in a deviation from 14 CFR § 120.109(b)(7) and (8), or call into question whether the mechanic refused the test. If it is unavoidable, we encourage you to have an alternate that can address the DER’s testing requirements, especially as it pertains to random testing notifications.
Alt hough the regulations do not require a DER to be trained, they must have knowledge of the regulations, 14 CFR part 120 and 49 CFR part 40, to ensure the empl oyer’s testing program meets all the requirements. The DER will experience different situations while managing the program and must comply with the regulations when determining what steps to take. The resources available online will help your DER comply!
8.2 Sa fety-Sensitive Employee Functions. According to 49 CFR § 40.13(h), no one is permitted to conduct a DOT drug or alcohol test on an individual who is not a DOT- regulated employee, as defined by the DOT agency regulations. Further, only safetysensitive employees are subject to DOT/FAA testing. Each employer is responsible for evaluating the duties of its employees to determine if they are performing a safetysensitive function listed under 14 CFR §§ 120.105 and 120.215 and subject to testing. If an employee is not performing covered functions but you test them anyway, you may be out of compliance with the regulations. If you want to test your employees who are not DOT-regulated, you may do so under your own company’s testing program and you are responsible for complying with the state laws where you operate. In this case, the
10 Refer to the DOT’s Q&As for 49 CFR § 40.3 for more information about DER’s role.
11 DOT/FAA and company testing programs must remain separate so as not to violate 49 CFR § 40.13(h).
As you determine what functions are covered, you should focus on the duties listed in 14 CFR §§ 120.105 and 120.215 and not the job title. Keep in mind that an employee includes any assistant, helper, or individual in a training status, and includes full-time, part-time, temporary, and intermittent employees regardless of the degree of supervision. A safety-sensitive employee’s supervisor is not subject to testing unless they also perform safety-sensitive functions on an intermittent or part-time basis. Refer to Appendix A of this AC for resources to help when making determinations.
Acc ording to 14 CFR § 120.215(b), you must identify any employee who is subject to the alcohol testing regulations of more than one DOT agency. For example, some aviation employers conduct aviation and motor carrier operations and employees may be subject to testing under 14 CFR part 120 and the Federal Mo tor Carrier Safety Administration (FMCSA) regulation (49 CFR part 382) or Pipeline and Hazardous Materials Safety Administration (PHMSA) regulation (49 CFR part 199). Prior to conducting any alcohol test on a covered employee subject to the alcohol testing regulations of more than one DOT agency, the employer must determine which DOT agency authorizes or requires the test. If you have questions about another DOT agency’s rule or requirements, a link to the webpages, regulations, and contact information is available at www.transportation.gov/odapc.
When using a contract employee to perform safety-sensitive functions, but that person is not included under your FAA-mandated drug and alcohol testing program, you are responsible for confirming the contract employee is tested under the contractor’s FAA- mandated testing program and is performing on behalf of and within the scope of employment with the contractor. You should obtain proof of the contractor’s program documentation by getting a copy of their A449, A049, or registration. It is important to understand that your DER must communicate with your contractor’s DER. A managed service provider or recruiting company cannot restrict your communications with your contractor. As a third party, a managed service provider or recruiting company is prohibited from having access to your testing records or those of your contractor that conducts its own testing.
If you operate an Unmanned Aircraft System (UAS) under 14 CFR part 135, you must implement a DOT/FAA drug and alcohol testing program and test employees who perform a safety-sensitive function. Because UAS operations are different from traditional part 135 operations (i.e., unmanned and manned aircraft require different personnel and job duties), you will need to determine when the functions being performed and when testing applies.
8.3 Types of Drug and Alcohol Testing. Each employer must conduct drug and alcohol testing in accordance with 14 CFR §§ 120.109 and 120.217. Outlined below are the general testing requirements set forth in these regulations and supplementary
12 guidance that may be helpful to you.
8.3.1 Pre-Employment Drug Testing. Pre-employment drug testing is directly tied to aviation safety because it is the gateway to a safety-sensitive position.
Once you have an active A449, A049, or registration, you must conduct a preemployment drug test and obtain a verified negative result prior to hiring any individual or transferring an employee into a safety-sensitive function in accordance with 14 CFR § 120.109(a)(1) and (2). Prior to conducting the test, you must advise the applicant or employee that they will be required to undergo testing to determine the presence of a prohibited drug in accordance with 14 CFR § 120.109(a)(5). If you do not hire or transfer the employee into the safetysensitive position for more than 180-days after obtaining the negative preemployment drug test result, you must conduct a new test in accordance with 14 CFR § 120.109(a)(3) before hiring or transferring them.
Employees who are removed from the random testing pool for reasons other than termination or transfer to a non-covered position may be sent for a preemployment drug test prior to returning to the pool and to safety-sensitive duties in accordance with 14 CFR § 120.109(a)(4). Although the decision is based on each company’s policy, in the interest of best practices, the FAA suggests conducting the test if the absence and removal from the random testing pool lasted longer than 60 days. Please keep in mind that you should have a consistent policy in place that addresses these situations to ensure that everyone is treated fairly.
Pre-e mployment alcohol testing is not required; however, if you do decide to conduct testing, you must do it for all new hires or transfers in accordance with the requirements outlined in 14 CFR § 120.217(a).
For more information (including a hiring checklist and pre-employment testing video), please visit www.faa.gov/go/drugabatement.
8.3.2 Random Tes ting. The random drug and alcohol testing requirements are outlined in 14 CFR §§ 120.109(b) and 120.217(c). The primary purpose of unannounced random testing is to deter drug use and alcohol misuse by aviation employees while performing safety-sensitive duties. Random testing can serve as an effective means to remove employees engaged in such use from the performance of safety-sensitive functions. Once an employee is hired or transferred, you must add them to the random testing pool immediately or before your next random selection. In accordance with 14 CFR §§ 120.109(b) and
120.217(c), you must:
• Select employees for testing using a scientifically valid method, such as a random number table or a computer-based random number generator.