Appendix A A-1 Appendix A. Resources for Evaluating Employee Duties to Determine if an Employee is Performing a Safety-Sensitive Function and Subject to Drug and Alcohol Testing A.1 PURPOSE AND GENERAL INFORMATION.
In accordance with 14 CFR § 120.7(f), an employee is defined as an individual who is hired, either directly or by contract (including subcontract at any tier), or transferred into a position to perform a safety-sensitive function for an employer. The safety-sensitive functions are listed under 14 CFR §§ 120.105 and 120.215 and below:
a. flight crewmember duties,
b. flight attendant duties,
c. flight instruction duties,
d. aircraft dispatcher duties,
e. aircraft maintenance and preventive maintenance duties,
f. ground security coordinator duties,
g. aviation screening duties,
h. air traffic control duties, and
i. operations control specialist duties.
An employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function for an employer must be subject to testing under a DOT/FAA drug and alcohol testing program (see 14 CFR § 120.1). This includes fulltime, part-time, temporary, and intermittent employees regardless of the degree of supervision. No part of the testing process may be conducted outside the territory of the United States and, therefore, when an employee only performs safety-sensitive duties outside the territory of the United States (including that by contract for an employer outside the territory of the United States), that employee must be removed from the random testing pool in accordance with 14 CFR §§ 120.123 and 120.227.
It is up to each employer to evaluate the specific duties of their employees, not the employee’s job title, to determine if an employee is performing a safety-sensitive function and subject to testing. The information outlined in this appendix is intended to provide resources and information to assist an employer in making the determination of whether employees are performing safety-sensitive duties and subject to testing.
A.2 DISCUSSION OF THE COVERED SAFETY-SENSITIVE DUTIES.
A.2.1 Flight Crewmember Duties. Not all certificated pilots are subject to the DOT/FAA testing rules. Pilots that perform flight crewmember duties for a part 121 or 135 air operator or air tour operator are subject to testing in accordance with 14 CFR §§ 120.35(a), 120.39(b), 120.105(a), and 120.215(a)(1).
Pilots assigned to fly solely under 14 CFR part 91, excluding those operating under 14 CFR § 91.147, are not subject to DOT/FAA testing under 14 CFR part
120.
Appendix A A-2
Medical personnel who are aboard the aircraft during an air ambulance operation only to provide medical care to patients are not performing flight crewmember duties in accordance with 14 CFR part 135, Subpart B. Consequently, they are not subject to DOT/FAA testing under 14 CFR part 120.
If you need clarification on whether an employee performs flight crewmember duties, please contact the FAA Principal Operations Inspector (POI) assigned to your operating certificate or your local Flight Standards District Office.
A.2.2 Flight Attendant Duties. Flight attendant duties are typically associated with a part 121 or 135 operation and include assisting passengers during emergency or abnormal events as described in 14 CFR §§ 121.291 and 135.123. According to FAA Order 8900.1, Volume 3, Chapter 33, Section 3-3513, flight attendants perform the following safety duties related to the airplane and its occupants:
• Safety briefings,
• Comp liance checks of seat belt fastening,
• Conducting passenger briefings,
• Ensuring passenger compliance with stowage of the food and beverage tray,
• Ensuring passenger compliance with the seatbelt and no smoking placards/lights,
• Checking for the proper stowage of carry-on baggage,
• Attending distressed passengers, or
• Responding to emergency situations.
Cabin attendants performing activities limited to passenger service (e.g., serving beverages, conducting customer relations, acting as translators) do not perform flight attendant duties. However, they may be covered if they perform duties that are like those described above.
If you need clarification on whether an employee performs flight attendant duties, please contact the FAA POI assigned to your operating certificate or your local Flight Standards District Office.
A.2.3 Flight Instruction Duties. Flight instructors who provide instruction in a flight simulator qualify as safety-sensitive employees when the instruction is provided to a part 121 or 135 or air tour operator. This includes simulator flight instruction, because instructors are responsible for making evaluations regarding the trainees’ performance and judgment. Ground instruction duties are distinct from flight instruction and, therefore, are not covered under this category.
If a flight school provides flight instruction solely to the public or general aviation students, the instructor is not subject to testing under 14 CFR part 120. Students who attend flight training are not subject to testing.
Appendix A A-3
A.2.4 Aircraft Dispatcher Duties. Aircraft dispatcher duties are specific to a part 121 or 135 operator and relate to exercising the authority to initiate, conduct or terminate a flight. According to the Dispatching and Flight Release Rules under 14 CFR part 121, subpart U, the pilot in command and aircraft dispatcher share operational control, which means the exercise of authority over initiating, conducting, or terminating a flight (see 14 CFR § 1.1). Aircraft dispatch duties include the preparation of a dispatch release or document, flight release form, load manifest, or flight plan. Weight and balance calculations are also a safetysensitive function under the category of aircraft dispatchers, but the performance of these calculations alone does not constitute aircraft dispatcher duties.
A part 135 operator is not required to employ aircraft dispatchers or prepare a formal release authorizing a specific flight. Therefore, it is important for a part 135 operator to analyze the duties performed by their employees to determine which employees exercise operational control over a flight akin to aircraft dispatching duties. Often, this authority is delegated to the pilot in command, but may be shared by other employees. In accordance with 14 CFR § 135.21, an operator must have a manual setting forth the operator’s procedures and policies, including persons authorized to exercise operational control over a flight. For more information on aircraft dispatching duties specific to part 135 operations, please refer to the FAA’s Office of Chief Counsel response dated July 19, 2010 to Jackson & Wade LLC, which discusses the duties of an aircraft dispatcher for a part 135 air operator.
A.2.5 Ai rcraft Maintenance and Preventive Maintenance Duties. When determining whether an employee performs maintenance and preventive maintenance duties on aircraft operated under part 121 or 135 or § 91.147, it is important to consider the duties as they relate to the FAA’s definition of maintenance and preventive maintenance under 14 CFR § 1.1 and 14 CFR part 43. According to 14 CFR § 1.1:
• Maintenance includes inspection, overhaul, repair, preservation, and the replacement of parts, but excludes preventive maintenance.
• Preventive maintenance means simple or minor preservation operations and the replacement of small standard parts not involving complex assembly operations.
In 2006, the Office of Aerospace Medicine’s Drug Abatement Division and the Flight Standards’ Aircraft Maintenance Division collaborated to document common guidance to assist operators in determining the most common maintenance and preventive maintenance functions. Additionally, the FAA’s legal interpretations related to maintenance and preventive maintenance are available at www.faa.gov/go/drugabatement. If you need assistance, consult your local Flight Standards District Office or FAA Principal Maintenance Inspector (PMI). Flight
Appendix A A-4 Standards inspectors are the experts in determining what functions meet the definitions of maintenance and preventive maintenance.
If it is determined that the functions are considered maintenance and preventive maintenance duties (i.e., safety-sensitive functions under part 120), you must ensure the employee is subject to DOT/FAA drug and alcohol testing if the work is performed on an aircraft part or aircraft operated under a part 121 or 135 or §
91.147. If the duties are not covered, DOT/FAA testing is prohibited in accordance with 49 CFR § 40.13(h), as the person would not be a covered employee. It is strongly recommended that you document your determination or obtain written guidance from Flight Standards. The documentation may be necessary to present to an FAA Drug and Alcohol Compliance and Enforcement Inspector during an inspection or investigation of your DOT/FAA testing program.
A.2.5.1 Cleaning the Aircraft. Th e physical cleaning of an aircraft is not normally considered maintenance or preventive maintenance within the context of the regulations. However, there may be occasions where the preparation of the aircraft for the cleaning process requires removal of components or protection of components that fall under the definitions of maintenance and preventive maintenance. For example, prior to cleaning an aircraft, it may be necessary to close and secure the upper and lower fan cowl doors on a transport category aircraft.
The closing and securing of the engine fan cowl doors are maintenance. Additionally, after the cleaning process, it may be necessary to reapply lubrication compounds and preservatives to aircraft components, which is considered maintenance and preventive maintenance. Conversely, cleaning seat cushions/covers is not considered maintenance.
A.2.5.2 Deco rative Coatings. According to 14 CFR part 43, Appendix A, Section (c), the “refinishing of decorative coating of fuselage, …cabin, or cockpit interior…” is preventive maintenance.
A.2.5.3 Repairing Cargo Containers. Cargo containers are considered part of the aircraft; therefore, repairs are covered under 14 CFR part 43 as maintenance.
A.2.5.4 Building Parts. Although the person who physically manufactures a part does not perform maintenance or preventive maintenance duties, the person who takes that manufactured part and consumes it while repairing the next higher assembly must be tested.
A.2.5.5 Manufacturer Testing. A m anufacturer that performs a test on a component to determine the extent of repairs necessary or to determine the serviceability of a component is required to be covered under a
Appendix A A-5 drug and alcohol program when performing work for a part 121 or 135 or § 91.147 operator. The testing is being performed to a standard acceptable to or approved by the FAA Administrator. The testing standard may be part of an inspection requirement in the technical data being used in the testing process.
A.2.5.6 Line Service Maintenance. Persons performing line servicing functions that would be considered maintenance or preventive maintenance (as listed in 14 CFR part 43, Appendix A) must be tested. This includes persons that an air carrier arranges with to perform servicing at line maintenance facilities or locations outside of their normal routes.
A.2.5.7 Mech anic’s Helpers. In accordance with 14 CFR §§ 120.105 and
120.215(a), any employee, including an assistant, helper, or individual that performs aircraft maintenance and preventive maintenance must be tested, regardless of the degree of supervision or whether they sign off on the work or not.
A.2.5.8 Parts Receiver. A parts receiver is responsible for intake and outtake of repaired aircraft parts but does not actually perform an inspection of the part or repair. Therefore, they do not perform maintenance or preventive maintenance duties and are not subject to testing.
A.2.6 Gr ound Security Coordinator (GSC) Duties. Each air carrier or operator’s security program dictates the GSC roles and responsibilities. In addition, the Department of Homeland Security’s Transportation Security Administration (TSA) defines the GSC under 49 CFR chapter XII, part 1544. For clarification on whether your employees perform GSC duties, consult with your security program.
If you are not an air carrier or operator, you should consult the air carrier with whom you contract to determine whether the duties performed are part of their security program.
A.2.7 Av iation Screening Duties. Employees performing aviation screening functions performed by non-TSA employees are covered employees subject to DOT/FAA testing. These duties include security screening at the checkpoint and noncheckpoint screening (pat down, wanding, and carry-on baggage searches) of passengers. Screeners that perform the non-checkpoint screening on service personnel (non-passengers such as catering, cargo, etc.) are not covered under 14 CFR part 120.
Aviation screeners employed by the TSA and performing as a TSA employee are not subject to testing under 14 CFR part 120 unless they are hired directly by a regulated employer, or they work for a regulated employer outside of their employment as a DOT/FAA employee. For more information about TSA and their security-screening program, please visit their website at www.tsa.gov.
Appendix A A-6 A.2.8 Air Traffic Control Duties. Only air traffic controllers who perform duties for an air traffic control facility not operated by the FAA or under contract to the United States military are tested under 14 CFR part 120.
A.2.9 Operations Control Specialist Duties. According to 14 CFR § 135.619(a), any air ambulance operator that has 10 or more helicopters must establish Operations Control Centers. The specific duties of the operations control specialists include providing preflight weather assessment, assisting with fuel planning and alternate airport weather minimums, and communicating with pilots about operational concerns during flight. These types of duties and this category would not apply to any other operator.
If you need clarification on whether an employee performs operations control specialist duties, please contact the FAA POI assigned to your operating certificate or your local Flight Standards District Office.
A.3 NON-COVERED FUNCTIONS.
As an employer, if you have employees who are not performing a safety -sensitive function, you are prohibited from including them in your DOT/FAA drug and alcohol testing program in accordance with 49 CFR § 40.13(h). You may conduct your own testing program under your company policy and in accordance with the state laws where you operate; however, you are prohibited from using federal or DOT drug and alcohol testing forms or making employment determinations based on DOT/FAA testing. You must ensure that your DOT/FAA testing program and records are separate from your company testing program (non-DOT testing) in all respects.
The following are some examples of non-covered safety-sensitive functions:
• Ground handling
• Aircraft fueling
• Aircraft de-icing
• Ticketing
• Baggage handling or loading
• Aircraft push-back
• Tool calibrators
• Customer Service Agents
If your employee holds a commercial driver’s license (CDL) to perform any of the above non-covered functions, DOT testing may apply under the Federal Motor Carrier Safety Administration (FMCSA) regulation (49 CFR part 382). Questions regarding a FMCSA-regulated employer or employee should be directed to FMCSAdrugandalcohol@dot.gov. For more information about FMCSA and the other transportation agency’s regulations, please visit the Department of Transportation’s Agency web page.
Appendix B B-1 Appendix B. Random Drug and Alcohol Testing Information and Best Practices B.1 PURPOSE AND GENERAL INFORMATION.
In accordance with 14 CFR §§ 120.109(b) and 120.217(c), employers must conduct random drug and alcohol testing. In addition to the information outlined in section 7.3.2 of this AC, this appendix is intended to provide information and best practices to assist an employer in conducting a random testing program that meets the requirements of the regulation. To conduct random testing, an employer must:
• Sele ct employees for testing using a scientifically valid method and testing enough employees to meet the annual percentage rate during the calendar year.
• Ensure each employee has an equal chance of being tested each time selections are made.
• Test the selected employees in a way that is unannounced.
• Conduct testing at times spread reasonably throughout the calendar year.
B.2 CALCULATING THE NUMBER OF TESTS REQUIRED.
B.2.1 Annual Testing Rates. The number of tests you are required to conduct each calendar year is determined by the minimum annual percentage rates for random drug and alcohol testing, which is published in the Federal Register each December and available at www.faa.gov/go/drugabatement. The annual rates are set annually by the FAA Administrator and based on the reported positive rate for the aviation industry in accordance with 14 CFR §§ 120.109(b)(2) and
120.217(c)(2).
B.2.2 Calculating the Number of Tests Required. To determine how many employees to test each time random testing is scheduled, you must divide the number of planned tests for the year by the number of testing periods in the year as specified in 14 CFR §§ 120.109(b)(6) and 120.217(c)(6). If the number of covered employees varies greatly from one testing period to the next due to seasonal or economic conditions, you should recalculate the annual rate during any or all random selection draws. An accepted method for calculating the number of tests required to meet the minimum annual percentage rate is described below:
B.2.2.1 Jus t before each testing period, calculate the number of tests you must conduct for that testing period by multiplying the number of employees in the random pool during the current testing period by the minimum annual percentage rate. Divide the result by the number of planned testing periods in the year.
In the example below, you are making quarterly random selections with a minimum annual percentage rate of 25%. You have the
Appendix B B-2 following number of employees in the random pool each quarter and calculate the number of tests required for quarters 1, 2, and 3:
Quarter Employees in random pool 1st quarter 23 2nd quarter 55 3rd quarter 40 4th quarter 27
1st Quarter (23 x 0.25) ÷ 4 = 2 drug tests required (1.43 rounded up) 2nd Quarter (55 x 0.25) ÷ 4 = 4 random tests required (3.43 rounded up) 3rd Quarter (40 x 0.25) ÷ 4 = 3 random tests required (2.5 rounded up)
Before the last testing period of the calendar year, calculate the average number of safety-sensitive employees in the random pool for the calendar year by adding the number in the random pool for each testing period (including the last) and dividing the result by the number of testing periods in the calendar year:
23 + 55 + 40 + 27 = 145 employees ÷ 4 testing periods = 36.25 average number of employees in the random pool
Then, calculate the random testing requirement for the year by multiplying the average number of employees in the random pool for the calendar year by the minimum annual percentage rate:
36.25 average number of employees X 0.25 minimum annual percentage rate = 10 random tests required for the calendar year (9.06 rounded up)
Determine the number of safety-sensitive employees you must test in the last testing period by subtracting the total number of random tests already conducted during the year from the number of random tests required for the entire year:
10 random tests required for the calendar year -9 tests conducted in Quarters 1- 3 = 1 random test required in quarter 4 to meet the yearly minimum rate
B.2.2.2 If your company began operations mid-year, you would need to calculate your average number of employees for the year with the number of remaining selections to meet the minimum annual testing rates.
In the example below, you begin operations in the 2nd quarter and conduct random selections for the remaining calendar year when the minimum annual percentage rate is 25%. You have the following
Appendix B B-3 number of employees in the random pool each quarter and calculate the number of tests required for quarters 2 and 3:
Quarter Employees in random pool 2nd quarter 130 3rd quarter 120 4th quarter 150
2nd Quarter (130 x 0.25) ÷ 3 = 11 random tests required (10.8 rounded up) 3rd Quarter (120 x 0.25) ÷ 3 = 10 random tests required
Just before the final (4 th quarter) draw, calculate the average number of employees in the random pool for the calendar year by adding the number of employees in the random pool for each testing period and divide the total by the number of testing periods:
130 + 120 + 150 = 400 employees ÷ 3 testing periods = 134 average number of employees in the random pool (133.3 rounded up)
Next, calculate the number of tests that are required for the calendar year:
134 (average number) x 0.25 (minimum annual percentage rate) = 34 random tests required for the full calendar year (33.5 rounded up)
Since you only operated for 3 of the 4 quarters of the year, the number of required tests for that year is prorated:
34 random tests required for a full calendar year x 0.75 (¾ of the year) = 26 random tests required for the prorated calendar year (25.5 rounded up)
To determine the number of employees who are to be tested in the 4th quarter, subtract the total number of random tests already conducted from the prorated number of random tests required for the year:
26 random tests required for the calendar year
- 21 tests conducted in Quarters 2 and 3 = 5 random tests required in Quarter 4 to meet the minimum rate
B.2.3 Combined to Stand-Alone Program. If your employees are in a combined random pool and you change to a stand-alone pool mid-year, you must ensure your calculations and random selections are based on the total number of employees eligible for testing during the remaining testing cycles for that year.
Appendix B B-4 B.3 STRUCTURING THE RANDOM TESTING POOL.
There are several ways that your random testing pool(s) can be structured. Two of the most common methods are individual selection/single pool, and individual selection/multiple pools. These methods are only examples of ways to structure and operate random selection pools. Some methods may work better depending upon your company’s organizational and geographical structure. It may be helpful to discuss their relative merits and implementation concerns with a statistician.
B.3.1 Individual Selection/Single Pool. Selection of individuals from a single pool is perhaps the easiest to implement and maintain. This type of pool has the following features:
• All covered employees are included in a single pool, and each is assigned a unique identifier such as a Social Security number, payroll identification number, or comparable identifying number.
• The number of employees to be tested is calculated.
• Selection of the specified number of employees is conducted using a scientifically valid method, such as a random number table or a computer-based random number generator.
• Each safety-sensitive employee must have an equal chance of being tested each time a selection is made.
B.3.2 Individual Selection/Multiple Pools. Selection of individuals segregated into separate pools can ensure that the selection is spread evenly across employee groups within the covered population. This is especially useful in companies that have large numbers of employees who are primarily in one location, such as mechanics, and others who are mobile and whose schedules are unpredictable, such as pilots and flight attendants. It may also be useful in organizations with many job sites. The procedures for managing multiple pools are the same as for a single pool.
Each pool is treated separately and tested at the same minimum annual percentage rate. An individual may be placed in only one pool per company.
This helps ensure every employee has an equal chance of being tested each time selections are made. This type of pool has the following features:
• All covered employees are included in a pool that is defined by location or job category. For example, all pilots might form a pool, or all covered employees in a hub location might form a pool.
• Each employee within a pool is matched by a unique identifier such as a Social Security number, payroll identification number, or comparable identifying number.
• The number of employees to be tested from each pool is determined by mul tiplying the number of employees in a pool by the minimum annual percentage rate and dividing the result by the number of testing periods to be conducted during the year.
• Selection of the specified number of employees is conducted using a
Appendix B B-5 scientifically valid method, such as a random number table or a computerbased random number generator.
B.3.3 Preparing the Random Pool for Selection. Pr ior to each random selection, you must ensure that only safety-sensitive employees are included in the random pool, and all safety-sensitive employees are in the random pool. When safetysensitive employees leave or transfer out of a covered position or are assigned to work solely outside of the territory of the United States, you must remove the employee from the random pool. Employees may be removed from the random testing pool while on extended absence or furlough. We believe it is a best practice to remove them from the pool if the absence lasts 90 days or longer.
Any employee who is removed from the random pool must be added back immediately upon resuming their safety-sensitive position, and prior to the next random selection.
B.4 MAK ING RANDOM SELECTIONS.
B.4.1 Scientifically Valid Method. You may select covered employees for testing from each pool and test for both drugs and alcohol or have a selection list for drug and another for alcohol. Using a single random selection list for both drug and alcohol testing can create difficulties when the testing rates are different. If using a single list, to avoid any appearance of manipulation, you should document how employees will be designated for drug and alcohol testing. For example, you might decide to test names on the list for drugs and alcohol, starting at the top of the list until the alcohol rate is met and the remainder for drugs only. One way to avoid issues when using one random selection list of covered employees for both drug and alcohol testing is to ensure equality by making both the drug and alcohol selections from the full list of eligible employees in the random pool each time a selection is made. Examples of scientifically valid methods of random selection include a random-number table or a computerbased random number generator that is matched with employees’ Social Security numbers, payroll identification numbers, or other comparable identifying numbers.
B.4.2 Confidentiality of Selections. It is important to ensure that your random selection list is kept confidential until notifications can take place. Therefore, we recommend that you limit access to the selection list to only those individuals responsible for managing your random testing program.
B.5 NOTIFYING AND TESTING SELECTED EMPLOYEES.
B.5.1 Notification of Random Selection. Under 14 CFR § 120.109(b)(8), you conduct random drug testing, but without regard to whether the employee was, is, or will be performing safety-sensitive functions at that exact time. In accordance with 14 CFR § 120.217( c)(9), you must conduct random alcohol testing only
Appendix B B-6 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. Once notified, you must ensure that an employee proceeds immediately to the collection site and the test is completed.
If the test is not completed, you are obligated to investigate the situation and determine whether the employee refused to test under 49 CFR §§ 40.191 or
40.261. If the employee is performing a safety-se nsitive function at the time of the notification, you should ensure that the employee ceases to perform the safety-sensitive function and proceeds to the collection site as soon as possible.
For categories where testing during the performance of a safety-sensitive function is not feasible (i.e., flight crewmember and flight attendant duties), you may only have the option to test just before or just after the performance of duties.
When you not ify an employee to report for testing, we strongly encourage you to document your notification. The FAA has a sample notification form available online at www.faa.gov/go/drugabatement. If the test is not completed, you are obligated to investigate the situation and determine whether the employee refused to test under 49 CFR §§ 40.191 or 40.261. In accordance with 14 CFR part 120, subparts C and D, you must ensure your safety-sen sitive employees are tested.
B.5.2 Collection Site Notification. T o minimize issues with the collection site, you or your C/TPA should make contact to verify collection personnel are ready and available to conduct the necessary tests; the collector and/or breath alcohol technician is aware of the types of testing to conduct; the equipment is working;
and the forms are available. Doing this before notifying the employee can help to ensure that the testing will begin with little to no delay. According to 49 CFR § 40.14, the following information must be provided to the collector:
• Full name of the employee being tested.
• SSN or Employee ID No.
• Laboratory name and address (can be pre-printed on the CCF).
• Employer name, address, phone and fax numbers (can be pre-printed on the CCF at Step 1-A).
• DER information.
• MRO information (can be pre-printed on the CCF).
• The DOT agency which regulates the employee’s safety-sensitive duties (can be pre-printed in the appropriate box on the CCF at Step 1-D).
• Test reason (e.g., random).
• Whether the test is to be observed or not (refer to 49 CFR § 40.67).
• C/TPA information (optional and can be pre-printed on the CCF).
• Specimen type to be collected (i.e., oral fluid or urine).
B.5.3 Testing Selected Employees. One characteristic that makes random testing effective as a deterrent is the element of unpredictability. While employees know they might be tested, they are never quite sure of when. The FAA’s