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14 CFR Ch. I (1–1–19 Edition)

§ 120.217

performance of safety-sensitive func-
tions).

(2) You must treat all safety-sen-

sitive employees performing safety-
sensitive functions the same for the
purpose of pre-employment alcohol
testing (

i.e.

, you must not test some

covered employees and not others).

(3) You must conduct the pre-employ-

ment tests after making a contingent
offer of employment or transfer, sub-
ject to the employee passing the pre-
employment alcohol test.

(4) You must conduct all pre-employ-

ment alcohol tests using the alcohol
testing procedures of 49 CFR part 40.

(5) You must not allow a covered em-

ployee to begin performing safety-sen-
sitive functions unless the result of the
employee’s test indicates an alcohol
concentration of less than 0.04. If a pre-
employment test result under this
paragraph indicates an alcohol con-
centration of 0.02 or greater but less
than 0.04, the provisions of § 120.221(f)
apply.

(b)

Post-accident alcohol testing.

(1) As

soon as practicable following an acci-
dent, each employer shall test each
surviving covered employee for alcohol
if that employee’s performance of a
safety-sensitive function either con-
tributed to the accident or cannot be
completely discounted as a contrib-
uting factor to the accident. The deci-
sion not to administer a test under this
section shall be based on the employ-
er’s determination, using the best
available information at the time of
the determination, that the covered
employee’s performance could not have
contributed to the accident.

(2) If a test required by this section is

not administered within 2 hours fol-
lowing the accident, the employer shall
prepare and maintain on file a record
stating the reasons the test was not
promptly administered. If a test re-
quired by this section is not adminis-
tered within 8 hours following the acci-
dent, the employer shall cease at-
tempts to administer an alcohol test
and shall prepare and maintain the
same record. Records shall be sub-
mitted to the FAA upon request of the
Administrator or his or her designee.

(3) A covered employee who is subject

to post-accident testing shall remain
readily available for such testing or

may be deemed by the employer to
have refused to submit to testing.
Nothing in this section shall be con-
strued to require the delay of necessary
medical attention for injured people
following an accident or to prohibit a
covered employee from leaving the
scene of an accident for the period nec-
essary to obtain assistance in respond-
ing to the accident or to obtain nec-
essary emergency medical care.

(c)

Random alcohol testing.

(1) Except

as provided in paragraphs (c)(2)
through (c)(4) of this section, the min-
imum annual percentage rate for ran-
dom alcohol testing will be 25 percent
of the covered employees.

(2) The Administrator’s decision to

increase or decrease the minimum an-
nual percentage rate for random alco-
hol testing is based on the violation
rate for the entire industry. All infor-
mation used for this determination is
drawn from MIS reports required by
this subpart. In order to ensure reli-
ability of the data, the Administrator
considers the quality and completeness
of the reported data, may obtain addi-
tional information or reports from em-
ployers, and may make appropriate
modifications in calculating the indus-
try violation rate. Each year, the Ad-
ministrator will publish in the F

ERAL

EGISTER

the minimum annual

percentage rate for random alcohol
testing of covered employees. The new
minimum annual percentage rate for
random alcohol testing will be applica-
ble starting January 1 of the calendar
year following publication.

(3)(i) When the minimum annual per-

centage rate for random alcohol test-
ing is 25 percent or more, the Adminis-
trator may lower this rate to 10 per-
cent of all covered employees if the Ad-
ministrator determines that the data
received under the reporting require-
ments of this subpart for two consecu-
tive calendar years indicate that the
violation rate is less than 0.5 percent.

(ii) When the minimum annual per-

centage rate for random alcohol test-
ing is 50 percent, the Administrator
may lower this rate to 25 percent of all
covered employees if the Adminis-
trator determines that the data re-
ceived under the reporting require-
ments of this subpart for two consecu-
tive calendar years indicate that the

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