Can an employer give in-flight notification of random testing to flight crew members via the Aircraft Communications Addressing and Reporting System (ACARS), cell phone, in-range calls, etc.?
No. No form of in-flight notification may be used to notify pilots and flight attendants of random testing. According to the Federal Aviation Administration's (FAA's) drug and alcohol testing regulation (14 CFR part 120), an employer shall require that random testing is unannounced and each safety-sensitive employee who is notified of selection for random drug testing is to proceed to the collection site immediately. The opportunity to report for testing immediately does not exist while in-flight; therefore, the use of in-flight notification is considered advance notification and is not permitted under our regulation.
Additionally, the FAA stated in the preamble to the January 12, 2004 final rule (69 Federal Register, page 1848) that "such advance notification is inherently unfair because pilots and flight attendants are only two of the eight categories of safety-sensitive employees. In other words, six categories of employees are not accessible by ACARS advance notification. In addition to the unfairness issue, ACARS advance notification has been linked, through enforcement cases, to dilutions, substitutions, and adulterations. ACARS notification could provide the employee with an opportunity to consume large quantities of fluid immediately before the test, which may dilute the specimen. Also, ACARS notification could provide the employee with an opportunity to substitute a specimen or to obtain access to adulterants to subvert the testing process."
If you have any further questions or need additional guidance that is more specific to your situation, please contact the FAA Drug Abatement Division at (202) 267-8442 or drugabatement@faa.gov.
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Applicable Regulations:
14 CFR § 120.109(b)(8)
14 CFR § 120.217(c)(8)
Preamble to the January 12, 2004, Final Rule