If I hire a contract employee to perform safety-sensitive work, how can I ensure that the contract employee is tested under a FAA drug and alcohol testing program?
If you are an employer, you must ensure that any person hired to perform a safety-sensitive function, directly or by contract (including by subcontract at any tier), is subject to FAA-mandated drug and alcohol testing under 14 CFR part 120. You may use a contract employee who is not included under your own testing program if that contract employee is subject to the requirements of the contractor's FAA-mandated drug and alcohol testing program and performing a safety-sensitive function on behalf of that contractor (i.e., within the scope of employment with the contractor). You must verify that the contract employee is subject to the contractor’s FAA-mandated testing program on an on-going basis. Although the regulation does not require specific documentation to be kept on file, you are responsible for demonstrating that you have ensured that you used a contract employee who is included under the contractor’s testing program.
The best way to verify a contractor’s federal testing program is to obtain a copy of the contractor’s program documentation, e.g., a copy of their current program registration, Letter of Authorization (A049), or Operations Specification paragraph (A449). If you obtain a copy of the contractor’s program registration, A449, or A049, we consider it sufficient proof that the contractor conducts its own testing, and they are knowledgeable of what work their employee is performing and can remove from service any employee who has a drug or alcohol result that requires removal from safety-sensitive duties. Ultimately, the contractor must ensure safety and individual privacy are correctly balanced should a positive drug test, refusal, or alcohol violation occur. The release of any drug or alcohol testing information or results to a third party is prohibited under 14 CFR §§ 120.111(c) and 120.219(c), and 49 CFR § 40.321.
If you rely on a copy of the contractor’s contract with a consortium or own statement, you may unknowingly fail to meet the requirement to ensure the contract employee is covered under an FAA-mandated drug and alcohol testing program.
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.
Please visit our website to learn more about the program.
Applicable Regulations:
14 CFR § 120.5
14 CFR § 120.7
14 CFR § 120.105
14 CFR § 120.111(c)
14 CFR § 120.215
14 CFR § 120.219(c)
49 CFR § 40.321