FMCSA vs. FAA, Part 2

Knowing when a company needs to set up a drug program, or when safety-sensitive employees should be administered a drug or alcohol test, is not always intuitive. But what if you have safety-sensitive employees who are subject to more than one agency? In Part 1 of our blog series, we discussed the differences between the Federal Motor Carrier Safety Administration (FMCSA) and Federal Aviation Administration (FAA) drug programs. For Part 2, we’re diving into when a safety-sensitive employee reports to both agencies and what you should know.

Employees regulated by multiple DOT agencies

Companies providing transportation services may have safety-sensitive employees who are regulated by more than one Department of Transportation (DOT) agency. For example, a cargo transport company in Alaska hires an employee who will work part-time as a pilot and part-time as a truck driver. This raises questions concerning the testing of the employee: which agency should the employee’s pre-employment test be performed? In this case, the employer may choose to have the employee undergo pre-employment testing for either the FMCSA or the FAA. However, if post-accident or reasonable suspicion testing is ordered for the employee, the employer must order the test for the agency regulating the employee’s actions at the time. In other words, let’s say the employee took his pre-employment drug test under the FAA and while working for the company as a driver, that employee appeared to have been driving under the influence and would be subject to reasonable suspicion testing. In the latter part, the employee would be tested under FMCSA.

Does the employee need to be randomly tested for both agencies

Regarding random drug and alcohol testing requirements, which agency should random drug and alcohol testing be conducted under if the employee is regulated under more than one agency? [Note: Random drug and alcohol testing thresholds may differ per agency] According to the FMCSA website, it depends on the percentage of safety-sensitive work they are performing. If an employee’s safety-sensitive functions amount to more than 50 percent for the FMCSA, then the employee is randomly tested under FMCSA. If the employee performs more than 50 percent of their safety-sensitive tasks for the FAA, then the employee should be randomly tested under the FAA. This goes for other DOT-regulated agencies.

Additionally, management information system (MIS) reporting is also based on which agency the employee performs most of his or her duties. If the employee performs more than 50 percent FMCSA regulated duties, then their data should only be reported on the FMCSA MIS report (49 CFR Part 382.403). 

Random testing pools

It’s important to know, every agency within the DOT has its own rules regarding who is classified as a safety-sensitive employee; so before enrolling employees in your drug program(s), it is highly recommended you have a complete understanding of what duties and roles are considered “safety-sensitive”. If there is uncertainty when enrolling employees, reach out to your FAA operations contact for guidance. If a non safety-sensitive employee were to be enrolled in your DOT drug program, you would be in violation for diluting the random pool.

Often, commercial driver’s license holders work for more than one company. If such is the case, each employer is individually responsible for making sure the employee undergoes random testing. For small FMCSA operators, it can be difficult to fund and manage their own DOT program, but one option they have is to use, in DOT terms, a “managing partner consortium." This is a larger employer in their area who is regulated by the DOT, such as an airline, a transit agency, a state DOT or a trucking company. Essentially, the smaller company contracts with the larger employer to provide services that can include training, managing drug/alcohol testing sites, keeping records and maintenance of the random pool. This means the managing partner consortium acts as a Third Party Administrator (TPA), sending the smaller operator test results for their employees and sharing other DOT-related records. It may seem like a lot of work, but if both parties are organized it can be a simple and effective process. Final thoughts and guidelines for FMCSA regulated operations:

• Employees of subsidiaries may be added to the parent company’s random testing pool.
• Single owner/operators are required to join a consortium.
• Random testing must include full-time, part-time, backup and emergency commercial drivers.

FAA regulations state that whether operators are managing their own random testing pool or are using a TPA, they must be able to show FAA inspectors that only safety-sensitive employees have been enrolled, when each employee was added to/removed from the random pool, and only the operator’s Designated Employer Representative (DER) is permitted to add or removed employees to/from the pool. Unlike the FMSCA, the FAA does allow single owner/operators to set up their own random testing pool; however, single owner/operators who are not part of a consortium are presented with complications and challenges. Final thoughts and guidelines for FAA regulated operations:

• Regardless of an air carrier’s ownership, each part 121 and/or 135 certificate operator is required to implement its own drug and alcohol testing program (14 CFR Part 120.117).
• Single owner/operators may set up their own random testing pool.
• Random testing must include full-time, part-time and contract employees.

An experienced TPA

As an experienced TPA with more than 50 years of combined experienced in the Aviation Industry, NATA Compliance Services helps operators set up their Anti-Drug and Alcohol Misuse Prevention Program to comply with DOT agency rules. Participating operators receive free audit preparation, online document management and storage, testing coordination, Medical Review Officer services and other related services. To learn more, inquire here.