Reasonable Suspicion Testing

Mar 1, 2016

Question: What are my rights if I am subject to reasonable suspicion testing for either drug or alcohol?

Answer: Reasonable suspicion testing is conducted when the FAA suspects impairment by either drug or alcohol use while on duty. Testing procedures for reasonable suspicion are governed by DOT Order 3910.1D and the parties’ collective bargaining agreements in Article 73, Section 14. The FAA must provide you with written notice outlining the basis for establishing reasonable suspicion. The notice to test must contain the following information:

A precise and detailed statement describing all relevant circumstances that formed the basis for the decision to conduct reasonable suspicion drug and/or alcohol testing;
Assurance that the quality of testing procedures is tightly controlled, that the tests used to confirm use of illegal drugs and/or alcohol misuse are highly reliable, and that test results will be handled with maximum respect for individual confidentiality, consistent with safety and security;
Notice of the opportunity and procedures for submitted supplemental medical documentation that may support a legitimate use for specific drug;
The consequences of a verified positive drug test, a confirmed alcohol concentration or refusal to be tested, including disciplinary action;
The availability of professional substance abuse counseling by certified addictions counselors and referral services, including the name and telephone number of the local EAP coordinator;
The exact date, time, and location for the test.

The written notice provides the basis for testing. It must be based on specific objective facts and reasonable inferences drawn from these facts, specific and contemporaneous evidence, and on observations that can be articulated concerning the appearance, behavior, speech, and/or body order of the employee. The FAA can also rely on information provided by either a reliable and credible source (independently corroborated) or by the employee’s own admission. You are entitled to these arrangements, as they are your rights under Article 73, Section 14 of the collective bargaining agreement.

Article 73, Section 14 requires the Agency to order reasonable suspicion testing based on specific objective facts and reasonable inferences drawn from these facts in the light of experience. Reasonable suspicion does not require certainty, but mere “hunches” are not sufficient to meet this standard. At the time an employee is ordered to submit to substance testing based on a reasonable suspicion, he/she will be given a written statement setting out the basis for establishing reasonable suspicion. In the event a reasonable suspicion test produces a negative result, any references to reasonable suspicion including, but not limited to the written statements, must be expunged from all formal and informal files. This does not preclude the maintenance of those records required by DOT regulations.

All FAA employees are subject to reasonable suspicion testing; it is not designated to only those occupying a Testing Designated Position (TDP). However, the testing protocol (drug and/or alcohol) differs based on the employee’s TDP category. The following breaks down the reasonable suspicion testing for drug and/or alcohol testing based on the TDP category:

Safe-Sensitive Position: NATCA BUEs who fall into this category are mostly air traffic controllers. Employees who occupy a safety-sensitive TDP are subject to both drug and alcohol reasonable suspicion testing under the DOT Order 3910.1D. Suspected drug use can also be for off-duty use.
Security-Sensitive Position: Security-sensitive TDP employees are those who hold a security clearance. Employees in this category are subject to reasonable suspicion drug testing only, and are not subject to alcohol testing under the DOT Order 3910.1D.
Non-TDP Employees: Non-TDP employees hold neither a safety, nor security, sensitive position, but may be subject to reasonable suspicion testing. The FAA can only perform drug testing if on-duty use or impairment is suspected. The DOT Order 3910.1D does not allow for alcohol testing for non-TDP employees.

In the event of reasonable suspicion testing, you have the right under Article 73, Section 3 of the CBA to obtain a union representative. NATCA advises that under no circumstance should you attempt to undergo reasonable suspicion testing without union representation. It is especially important to obtain union representation for reasonable suspicion testing because the nature of it poses a unique set of circumstances and challenges compared to that of routinely conducted random testing. It is imperative that you exercise your right to a union representative and elect to have one present during a reasonable suspicion test process should you become the subject of it.

If you are notified by management that you will be subject to a reasonable suspicion test, immediately contact your Facility Representative and/or your Regional Vice President for assistance and representation.