Know Your Rights
Friday, October 29, 2010
DOT/FAA Drug and Alcohol Testing
The Department of Transportation has revised the Drug and Alcohol Testing Order 3910.1C to 3910.1D. The Order was implemented effective October 1, 2010. NATCA and FAA are currently engaged in discussion over the agency’s unilateral implementation of the 3910.1D Order. NATCA will receive a briefing on the changes, and once completed, more information will be forwarded to the membership concerning this matter. What follows is a list of the major changes introduced by Order 3910.1D to get your familiarized with the changes.
The issue of and procedures for substance abuse testing is covered in all of the NATCA bargaining units’ collective bargaining agreements (Article 73 for air traffic controllers). Under the CBA provision, you are entitled to request union representation during the collection process (for either drug or alcohol screening). It is important to exercise this right so that the process, as agreed to by the parties, is strictly followed and your rights protected. Should you have any questions about this matter, please contact your facility representative or your regional vice president for further information.
Testing of Methylenedioxymethamphetamine (MDMA)
The Department has added “ecstasy” as commonly known to the random, reasonable suspicion, and post-accident testing. The following lists all drugs screened and the cut-off levels for the initial and confirmation testing levels.
Marijuana metabolites 50 ng/mL 15 ng/mL
*Cocaine metabolites 150 ng/mL 100 ng/mL
Opiate metabolites 2000 ng/mL 2000 ng/mL
**6-Acetylmorphine 10 ng/mL 10 ng/mL
Phencyclidine 25 ng/mL 25 ng/mL
*Amphetamines 500 ng/mL 250 ng/mL
MDMA 500 ng/mL 250 ng/mL
*Note: The initial test for cocaine metabolites and amphetamines cutoff levels lowered. Cocaine metabolites from 300 ng/mL to 150 ng/mL Amphetamines from 1000 ng/mL to 500 ng/mL.
**The addition of 6-acetylmorphine (6AM) determines the presence of heroin.
• Shy Bladder requirements – If an employee is unable to provide a sufficient volume (45 milliliters) of urine on their first attempt, the employee will have three hours from the time of the first unsuccessful attempt to provide a sufficient volume.
• Employee may drink up to 40 ounces of fluid distributed reasonably through a period of up to three hours. For example, an 8-oz glass of water every 30 minutes, but not to exceed a maximum of 40 ounces over a period of three hours.
• If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt, he will be referred to the Medical Review Officer (MRO (Regional Flight Surgeon)) for a medical evaluation. If the MRO determines no valid medical reason for the employee’s inability to provide a sufficient volume of urine for a drug test, the test will be regarded as a “refusal test” and action will be initiated to remove the employee from federal services. If a test is deemed “refusal” it is an automatic termination without an opportunity to enter into a Rehabilitation/Last Chance Agreement.
Policy on Official and Unofficial Details
3910.1D makes the distinction concerning pre-employment/pre-appointment testing when employees move into, or is placed back into, a TDP position after a 90-day detail.
TDP employees who are officially or unofficially detailed to non-TDP duties are subject to pre-employment testing prior to returning to their TDP if the detail is 90 days or more. An unofficial detail is considered to be any temporary assignment taken without the appropriate personnel action. Employees in non-TDPs who are officially or unofficially detailed or assigned collateral TDP duties (90 days or more) are subject to pre-appointment testing prior to appointment into the position or performance of the assigned collateral duties. Page III-6(f) – Page III-4
Post-Accident Testing CANNOT be Done at the Employee’s Residence
3910.1D clarifies post-accident or post-incident testing cannot be conducted at an employee’s residence. Drug and/or alcohol tests must be conducted at the employee’s facility.
Indefinite Suspension for Alcohol Misuse – XI(6)(b)
DOT may take action to suspend an FAA employee indefinitely if it has reason to believe that the employee has committed a crime involving alcohol misuse for which a term of imprisonment may be imposed, prior to determining a violation of this Order. There is no opportunity to enter a rehabilitation program for this offense.
Off-Duty Drug/Alcohol-Related Conduct and Self-Referral – XI(10)
When an OA [FAA] learns of an off-duty drug and/or alcohol misconduct event covered under this paragraph, the employee is no longer eligible to self-refer to the EAP. Such misconduct includes, but is not limited to:
• Driving while intoxicated (DWI);
• Drive under the Influence (DUI);
• Misuse of prescription drugs and/or over-the-counter medicine at any time (OAs must use the reasonable suspicion testing standard in making the determination for this offense);
• Any other police matter where the use of drugs or alcohol is noted in any police report or court documents, etc.; or
• Refusal to submit to a breath alcohol test and/or field sobriety test conducted by Federal, State, local, or tribal government officials having independent authority for the test.
The OA may learn about an off-duty situation through any available means. Misconduct may come to the attention of management because of:
• Report of Investigation (ROI);
• Newspaper article;
• Information or inquiry from a policy source;
• Information obtained as a result of periodic medical examination; or
• An illness related medical examination.
For the purpose of these offenses, a plea of no contest or other plea arrangement is not cause of drug or alcohol misconduct to be excused under this Order (3910.1D). Appropriate action may be taken in accordance with the OAs Table of Penalties.
The Order clarifies the issue of on-duty alcohol use to include non-paid breaks.
On-duty alcohol use – All employee are prohibited from use of alcohol while on duty (as specified in 41 CFR § 102-74.405). This includes paid or non-paid breaks during the workday. There is not opportunity to enter a rehabilitation program for this offense.
DOT Order 3910.1D, Chapter XI(5)(b).