If we merge with another company under a single operating certificate, do we have to conduct our own pre-employment drug test and obtain a negative result?
Yes. In accordance with 14 CFR § 120.109(a)(1), an employer must conduct a pre-employment drug test and obtain a verified negative result prior to hiring any individual to perform safety-sensitive functions. When you merge with another employer that has an active FAA-mandated drug and alcohol testing program under a single operating certificate, you are hiring the employees and must comply with all requirements under 14 CFR part 120. This includes pre-employment drug testing and providing your new employee and supervisory training, informational materials, and education in accordance with 14 CFR § 120.115 and 120.223. These requirements apply when two employers merge under a single operating certificate or chooses to unify programs with another company it acquires that maintains its own operating certificate.
Please note that the FAA cannot make determinations about requests for relief from 49 CFR part 40. Although an employer is required to request drug and alcohol testing records and maintain confidentiality when hiring a new employee, the DOT has determined when a corporate entity is merging with another employer (which is defined under 49 CFR § 40.3), the employer encompasses a broader group and an exemption from 49 CFR § 40.25(a) is not required.
For companies that merge under a single operating certificate, it is possible for the employer to file a petition for exemption and seek relief from the requirements under 14 CFR part 120 (including the pre-employment drug testing and/or education and training) under the FAA’s exemption procedures outlined in 14 CFR part 11. The FAA has granted relief to employers that merged with other operators under a single operating certificate or program registration. All petitions must comply with 14 CFR part 11 and be submitted 120 days before you need the exemption to take effect. In accordance with 14 CFR § 11.81, a petition for exemption must include the following information, with as much detail as possible:
- Requesting employer’s name and mailing address. We encourage an employer to provide a fax number, telephone number, and/or e-mail address.
- The specific section or sections of Title 14 of the Code of Federal Regulations (CFR) from which an employer is seeking an exemption.
- The extent of relief and reason the employer seeking relief.
- The reasons why granting the request would be in the public interest; that is, how it would benefit the public as a whole.
- The reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that provided by the rule.
- A summary FAA can publish in the Federal Register stating:
- The rule from which an employer is seeing the exemption; and
- A brief description of the nature of the exemption; and
- Any additional information, views or arguments available to support the request.
To review exemptions related to pre-employment drug testing, you may visit the FAA’s Dynamic Regulatory System (DRS) and search for ‘120.109’. An employer may submit an exemption request electronically to the FAA on the Docket Management System website at http://www.regulations.gov. Instructions are available on the FAA’s webpage. For more information or assistance with FAA’s exemption procedures, please review the FAA’s Frequently Asked Questions or contact the FAA’s Office of Rulemaking directly at 202-267-9677.
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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