End of the Year Updates from the Department of Transportation and Federal Aviation Administration

Executive Summary: The Department of Transportation (DOT) and Federal Aviation Administration (FAA) published a flurry of announcements to close out 2017. In addition to recapping several previous publications, the FAA released a new Advisory Circular on its voluntary disclosure reporting program.

Background:

DOT Drug Testing:
On August 8, 2017, the Department of Health and Human Services (HHS) announced that the Office of Management and Budget (OMB) approved its revised Federal Drug Testing Custody and Control Form (CCF). However, DOT-regulated employers could not use the revised CCF at that time because the DOT had not yet authorized testing for new synthetic opioids included on the form and had not approved use of the new form.

On November 13, 2017, the DOT announced that it was amending its drug-testing program to require testing for synthetic opioids. The new DOT regulations now harmonize with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine, published January 23, 2017. The updated regulations added four semi-synthetic opioids to the DOT panel (hydrocodone, hydromorphone, oxycodone, and oxymorphone). The new regulations became effective January 1, 2018. A summary of the new regulations are discussed in our previous Alert.

Now that the DOT has harmonized with the HHS Mandatory Guidelines, the OMB has approved the revised CCF form for DOT-regulated employers and their service agents, including collectors, laboratories, and Medical Review Officers. The new form now includes the additional semi-synthetic opioids that were added to the DOT panel in November 2017. DOT-regulated employers can begin using the new form immediately. However, they can still use the old form until June 30, 2018, at which time employers must use the revised CCF. A copy of the updated CCF form can be found here.

Random Drug and Alcohol Testing Rates:
On December 13, 2017, the FAA determined that the minimum random drug and alcohol testing percentage rates for 2018 would remain at 25 percent of safety-sensitive employees for random drug testing and 10 percent of safety-sensitive employees for random alcohol testing. In 2016, the random drug test positive rate was 0.610% and the alcohol test violation rate was 0.121%. Based on these numbers, the FAA determined that it would continue to monitor drug and alcohol testing at the same rates as the previous year.

Voluntary Disclosure Reporting Program:
Finally, on December 20, 2017, the FAA released an advisory circular regarding its voluntary disclosure reporting program (VDRP). Under the program, employers may voluntarily disclose to the FAA violations of the drug and alcohol testing regulations. The FAA will forgo a civil penalty when an employer detects a violation, promptly discloses the violation to the FAA, and takes prompt corrective action to ensure that the same or similar violations do not recur.

In order to be covered by the VDRP, an employer’s submission must meet the following conditions:

  • The FAA was immediately notified of the apparent violation when it was discovered, usually within 24 hours, and before the FAA learns of it by other means.
  • The violation was inadvertent.
  • The violation does not reflect a lack of qualification to hold a certificate, letter of authorization, or program registration.
  • The employer took immediate action to terminate the conduct that resulted in the violation.
  • The employer has developed or is developing a comprehensive fix and schedule of implementation. The fix must include a follow-up self-audit to ensure that the action corrects the non-compliance.

If the FAA accepts the employer’s disclosure, the Drug Abatement Division will issue the decision in writing. If the FAA later learns that the employer did not follow the corrective action, it may rescind the decision and initiate enforcement action. The Advisory Circular can be found here.

Employers’ Bottom Line: The DOT and FAA were active in 2017 and many of the new regulations went into effect on January 1, 2018. The Trump Administration has proposed a multiyear effort to modernize the FAA. Moreover, the President’s 2018 budget includes $200 billion to support his infrastructure proposal. Therefore, we anticipate that we will see additional changes in the DOT and FAA in 2018.

If you have any questions regarding this post or related issues, please feel free to contact the author, Jacquelyn Thompson, jthompson@fordharrison.com, who is counsel in our Washington, DC office. Jacki is a member of FordHarrison’s Airline Industry practice group.

 

 

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