Reasonable Suspicion Testing

Mar 1, 2016

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

Answer: The FAA must provide you a written notice outlining the basis of the decision to conduct a reasonable suspicion test. The listing of what the notice contains is further detailed below.

The FAA may conduct reasonable suspicion testing when it suspects an employee is either using or impaired by drug or alcohol during work.

Reasonable suspicion testing is covered by Article 73, Section 14 (Substance Testing) of the air traffic controllers’ CBA. In that Article, Section 1 covers substance testing to be for both drug and alcohol testing conducted by the Agency in accordance DOT Order 3910.1D. This includes testing for either drug or alcohol under a reasonable suspicion test. All the CBAs for the various NATCA bargaining units also contain an identical contractual provision concerning Substance Testing as found in the controllers’ CBA.

The testing procedures are governed by DOT Order 3910.1D and the parties’ collective bargaining agreements. Although the Order is mainly directed for employees who occupy a Testing Designated Position (“TDP”), for reasonable suspicion testing, employees in a non-TDP may be subject to drug testing if on-duty use or impairment is suspected by the Agency. NATCA represents both TDP and non-TDP bargaining unit employees. Most of the non-TDP BUEs are in the Region X group.

The following breaks down the type of reasonable suspicion testing (drug and/or alcohol) performed based upon the type of position occupied by the employee (TDP or non-TDP):

TDP Employees in a Safe-Sensitive Position: NATCA BUEs who fall into this category are air traffic controllers. TDPs in a safety-sensitive position are subject to both drug and alcohol reasonable suspicion testing. Suspected drug use can be for off-duty use.
TDP Employees in a Security-Sensitive Position: Some TDP employees occupy this status because of their security-sensitive duties and thus are required to obtain a security clearance. Employees in this category are subject to reasonable suspicion drug testing only. They are not subject to alcohol testing under the Order.
Non-TDP Employees: Non-TDP employees are those employees occupying neither a safety-sensitive nor a security-sensitive position, but may be subject to reasonable suspicion testing. The Agency can only perform drug testing if on-duty use or impairment is suspected. The Order does not allow for alcohol testing for non-TDP employees.

The FAA will make attempts to alcohol test within two hours following a determination to perform a reasonable suspicion test. If the test is not achieved within 8 hours, the FAA must stop attempts to test. There is no time limitation for drug testing under a reasonable suspicion testing like there may be for random testing. If the Agency cannot deploy a collector to conduct drug testing by the end of an employee’s shift, the testing can conclude at the next shift.

For both alcohol and drug reasonable suspicion testing, the FAA must provide reasons to test based upon specific and contemporaneous evidence, and based 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.

When the Agency makes a determination to test an employee, he/she must be provided with specific written notice that contains the information listed below. Moreover information concerning reasonable suspicion testing, and the notice provide to the employee can be found in Page III-4, Section (h) of DOT Order 3910.1D; and Page III-1(A) of the DOT Order 3910.1D Guide.

A precise and detailed statement describing all relevant circumstances which 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 confirms use of illegal drugs and/or alcohol misuse are high reliable, and that test results will be handled with maximum respect for individual confidentiality;
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; and
The exact date, time, and location for the test.

All of the CBAs for Substance Testing (drug and alcohol) contain a provision on the employee’s right to union representation during the testing. For air traffic controllers, Article 73, Section 3 affords employees the right to union representation during substance (drug and alcohol) testing, which includes the reasonable suspicion test, provided a representative is readily available and collection/test is not delayed.

NATCA advises that under no circumstances should employees attempt to undergo reasonable suspicion testing without a union representative present. While the election to representation is made by the employee, for no other reason than the fact that a reasonable suspicion testing possesses unique situations that drastically differ from routinely conducted random testing, it is therefore more critical that employees exercise their right to union representation during this type of testing.

If you get notified by your supervisor or any other management official of a possible reasonable suspicion testing, immediately contact your facility representative or your regional vice president for further assistance and guidance.