Federal Aviation Administration, DOT

Section 120.219

(iii) No employer shall take any action under this subpart against a covered employee based solely on the employee-s behavior and appearance in
the absence of an alcohol test. This
does not prohibit an employer with authority independent of this subpart
from taking any action otherwise consistent with law.
(e) Return-to-duty alcohol testing.
Each employer shall ensure that before
a covered employee returns to duty requiring the performance of a safetysensitive function after engaging in
conduct prohibited in SectionSection 120.19 or 120.37
the employee shall undergo a returnto-duty alcohol test with a result indicating an alcohol concentration of less
than 0.02. The test cannot occur until
after the SAP has determined that the
employee has successfully complied
with the prescribed education and/or
treatment.
(f) Follow-up alcohol testing. (1) Each
employer shall ensure that the employee who engages in conduct prohibited by SectionSection 120.19 or 120.37, is subject to
unannounced follow-up alcohol testing
as directed by a SAP.
(2) The number and frequency of such
testing shall be determined by the employer-s SAP, but must consist of at
least six tests in the first 12 months
following the employee-s return to
duty.
(3) The employer must direct the employee to undergo testing for drugs in
accordance with subpart E of this part,
in addition to alcohol, if the SAP determines that drug testing is necessary
for the particular employee. Any such
drug testing shall be conducted in accordance with the provisions of 49 CFR
part 40.
(4) Follow-up testing shall not exceed
60 months after the date the individual
begins to perform, or returns to the
performance of, a safety-sensitive function. The SAP may terminate the requirement for follow-up testing at any
time after the first six tests have been
conducted, if the SAP determines that
such testing is no longer necessary.
(5) A covered employee shall be tested for alcohol under this section only
while the employee is performing safety-sensitive functions, just before the
employee is to perform safety-sensitive

functions, or just after the employee
has ceased performing such functions.
(g) Retesting of covered employees with
an alcohol concentration of 0.02 or greater
but less than 0.04. Each employer shall
retest a covered employee to ensure
compliance with the provisions of
Section 120.221(f) if the employer chooses to
permit the employee to perform a safety-sensitive function within 8 hours
following the administration of an alcohol test indicating an alcohol concentration of 0.02 or greater but less
than 0.04.
Section 120.219 Handling of test results,
record retention, and confidentiality.
(a) Retention of records. (1) General requirement. In addition to the records required to be maintained under 49 CFR
part 40, employers must maintain
records required by this subpart in a
secure location with controlled access.
(2) Period of retention.
(i) Five years.
(A) Copies of any annual reports submitted to the FAA under this subpart
for a minimum of 5 years.
(B) Records of notifications to the
Federal Air Surgeon of refusals to submit to testing and violations of the alcohol misuse prohibitions in this chapter by covered employees who hold
medical certificates issued under part
67 of this chapter.
(C) Documents presented by a covered employee to dispute the result of
an alcohol test administered under this
subpart.
(D) Records related to other violations of SectionSection 120.19 or 120.37.
(ii) Two years. Records related to the
testing process and training required
under this subpart.
(A) Documents related to the random
selection process.
(B) Documents generated in connection with decisions to administer reasonable suspicion alcohol tests.
(C) Documents generated in connection with decisions on post-accident
tests.
(D) Documents verifying existence of
a medical explanation of the inability
of a covered employee to provide adequate breath for testing.

55

VerDate Sep<11>2014

08:20 May 17, 2019

Jkt 247048

PO 00000

Frm 00065

Fmt 8010

Sfmt 8010

Y:\SGML\247048.XXX

247048