The D.C. Circuit Court of Appeals has upheld the Federal Aviation Administration (FAA) regulations requiring drug and alcohol testing of all employees of air carriers including employees of contractors and subcontractors at any tier. See Aeronautical Repair Station Ass’n v. FAA (
D.C. Cir. July 17, 2007). The plaintiffs in this case argued that the FAA exceeded its authority in extending the drug and alcohol testing requirements to employees of subcontractors at any tier and claimed the agency violated the Regulatory Flexibility Act when it promulgated the regulations. The D.C. Circuit upheld the substance of the regulations, but ordered the FAA to conduct studies in accordance with the RFA to determine the impact of the regulations on small employers. However, in light of the importance of the safety purposes furthered by the regulations, the court refused to defer enforcement of the rule against small entities until the RFA analysis is conducted.
The 1991 Omnibus Transportation Employee Testing Act (Omnibus Act) directed the FAA to promulgate alcohol and drug testing regulations. In accordance with the Omnibus Act, the FAA revised its drug testing regulations in 1994 and, for the first time, promulgated regulations for alcohol testing. Both the 1994 Drug Rule and the 1994 Alcohol Rule required that an "employer" test each covered "employee," defined as "a person who performs, either directly or by contract" any of eight listed "safety-sensitive" functions. Subsequently, the FAA revised its regulations to require testing employees who perform the listed functions "directly or by contract (including by subcontract at any tier)."The plaintiffs challenged the revised rule, claiming the FAA exceeded its statutory authority under the Omnibus Act by including employees of subcontractors at any tier and, specifically, employees of noncertificated repair subcontractors. The court rejected this argument, holding that the FAA’s interpretation of the language of the Omnibus Act was reasonable.
The Ominibus Act directed the FAA to prescribe regulations requiring air carriers to conduct drug and alcohol testing of "airmen, crewmembers, airport security screening contract personnel, and other air carrier employees responsible for safety-sensitive functions." The court held that the language of the Act is ambiguous with regard to whether the testing requirement applies to employees of all subcontractors and that the FAA reasonably concluded that the phrase "other air carrier employees" can include employees of an air carrier’s contractors as well as its direct employees.
Additionally, the court held that "noncertificated" subcontractors also reasonably could be treated as "other air carrier employees" and thus subject to mandatory testing under the Omnibus Act. Air carriers routinely contract with repair stations that are "certificated" under Part 145. A Part 145 repair station is authorized to "[p]erform maintenance, preventive maintenance, or alterations" on aviation components or to "[a]rrange for another person," that is, a subcontractor, whether certificated or not, "to perform the maintenance." If the subcontractor is not certificated, the certificated repair station must ensure that the noncertificated person follows a quality control system equivalent to the system followed by the certificated repair station, and must approve the aviation component for return to service.
The plaintiffs argued that a certificated subcontractor can be seen as acting as an alter ego of the air carrier, thus its workers can be fairly characterized as "air carrier employees" while noncertificated entities should not be considered air carrier employees. The court rejected this argument, noting that the Omnibus Act does not mention certification, but instead requires the FAA to determine those "safety-sensitive functions" – performed by other than "airmen, crewmembers, [and] airport security screening contract personnel" – subject to drug and alcohol testing and that the FAA has consistently and reasonably included aircraft maintenance work among such functions. Thus, the court held that it was not unreasonable for the FAA to require testing of maintenance employees, certificated or not, in order to ensure that all maintenance work, by whomever performed, is done properly and that each aviation component is safe for aviation use.