Executive Summary: On October 1, 2018, a new Federal Aviation Administration (FAA) policy went into effect that allows commercial pilots who are first-time violators of certain drug and alcohol testing provisions the opportunity for prompt settlement with the FAA.
Background: The notice of enforcement policy, titled “Settlement Policy for Commercial Pilots in Drug and Alcohol Cases,” was initially issued by the FAA on July 19, 2018, and applies to commercial airline pilots who are first-time violators of drug and alcohol testing regulations and who, but for the violation, would be qualified for a pilot certificate. A pilot may qualify for the new policy if he or she:
- received a verified positive result for a Department of Transportation (DOT)-required drug test;
- received a DOT-required alcohol test result of .04 or above alcohol concentration;
- refused to submit to a DOT-required drug or alcohol test in violation of FAA regulations; or
- acted or attempted to act as a crewmember of an aircraft in commercial operations in violation of specified FAA drug and alcohol regulations.
Prior to the enactment of the new settlement policy, a commercial airline pilot who violated these drug and alcohol testing procedures faced potential revocation of a qualifying medical certificate and could not re-apply for recertification for a minimum of one year following a revocation determination. The revocation determination would be made only after a thorough review to ensure that legal enforcement action involving the revocation of the certificate was appropriate. Therefore, the time period between the FAA’s initial discovery of a potential drug or alcohol violation and the issuance of a certificate action could be quite lengthy. In many circumstances, a pilot may have become eligible for an authorization for special issuance of an airman medical certificate (“special issuance”) well before the conclusion of the FAA investigation into the alleged violation, the initiation of legal enforcement based on the results of the investigation, and passage of the one year time period. This created a time lag between when the pilot regained eligibility for a special issuance and when he or she could reassume commercial flight duties.
Under the new policy, a pilot who is a first-time violator of the drug and alcohol testing requirements may, within ten days, request consideration for a prompt settlement of the legal enforcement action. If the FAA deems application of the prompt settlement procedure to be appropriate, the pilot must agree to immediately surrender his or her certificates and not to apply for a new certificate for at least one year. The pilot also waives any rights to appeal. Additionally, the pilot must still complete the process for evaluation, treatment, and care in accordance with the Human Intervention Motivation Study (HIMS) program before resuming his or her commercial flight duties.
It is anticipated that the procedure will allow pilots who have been found qualified to hold a new pilot certificate and who have met the requirements for a special issuance to more quickly reassume commercial flight crewmember responsibilities. Furthermore, the predictability of the process is expected to give pilots who have violated drug and alcohol testing procedures the opportunity to focus their efforts on the treatment and recovery process and to allow both the pilot and the FAA to efficiently allocate limited resources.
The Bottom Line: The ability to expedite the process for investigation and return of an otherwise-qualifying commercial airline pilot to his or her flight duties following a first-time violation of certain drug and alcohol testing procedures may be seen as a viable and even attractive option for pilots who are facing such a situation. Pilots considering whether or not to apply for prompt settlement should keep in mind the additional terms involved in the new settlement policy, including waiver of appeal rights and agreement to an automatic one-year revocation of his or her license.
If you have any questions about the prompt settlement policy, please feel free to contact the authors of this Alert, Jacquelyn L. Thompson, jthompson@fordharrison.com, a counsel in our Washington, DC office, or Jaime B. Wamble, jwamble@fordharrison.com, an associate in our Washington, DC office, both in the Airline Practice Group. You may also contact the FordHarrison attorney with whom you usually work.