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VOLUNTARY DISCLOSURE REPORTING PROGRAM EXPANDED:
VDRP NOW INCLUDES ANTI-DRUG AND ALCOHOL MISUSE PREVENTION PROGRAMS AND HAZMAT VIOLATIONS
On April 29, 2009, the FAA issued revised Advisory Circular 00-58B expanding the Voluntary Disclosure Reporting Program (VDRP).
As all certificate holders are probably aware, the FAA has a voluntary disclosure program allowing air carriers, manufacturers, PMA holders, repair stations and certain other certificate holders (but not individual airmen, except in very specific situations) to report certain AVIALEX and the stylized logo are Registered Marks of Michael L. Dworkin violations and avoid enforcement actions and sanctions.
According to the FAA, the policy of foregoing enforcement action when a qualifying entity detects a violation and promptly discloses it to the FAA, taking prompt corrective action to ensure that the same or similar violations do not recur, is designed to encourage compliance with the FAA’s regulations, foster safe operating practices and promote the development of Internal Evaluation Programs (IEPs).
Previously, VDRP only included violations regarding manufacturing, maintenance and flight operations. Under the current revision, VDRP now additionally covers anti-drug and alcohol misuse prevention programs and HAZMAT transportation noncompliance.
The same VDRP reporting rules apply to the newly allowed areas–i.e. the violation(s) must be inadvertent and not indicative of a lack of qualifications, the reporting entity must cease the violating activity, notify the FAA immediately upon detection, and provide the FAA with a comprehensive fix to the problem leading to the violation, complete with a satisfactory schedule for implementation of the fix.
THE COURT OF APPEALS DECIDES IT IS OK TO DROP YOUR PANTS
As we reported in Volume 8, effective November 1, 2008, drug/alcohol test observers must ask the employee being tested to “raise his or her shirt, blouse or dress/skirt, as appropriate, above the waist, and lower clothing and underpants to show, by turning around, that he or she does not have a prosthetic device.”
On March 26, 2009, the United States Court of Appeals for the District of Columbia heard BNSF Railway Company v. DOT and recently issued its decision on May 15, 2009, holding that “direct observation”--i.e., having a same-gender observer “watch the urine go from the employee’s body into the collection container”, during return-to-duty and follow-up drug tests for employees throughout the transportation industry, is constitutional.
In light of the perceived profusion of prosthetics and other gadgets being used to cheat urine-drug tests, 49 CFR § 40.67(i)(2007) was promulgated allowing, the so called, “direct observation”. Several transportation industry unions cried foul and filed suit claiming infringement of, among other things, Fourth Amendment’s prohibition against unreasonable search.
The court found that the DOT had met its burden by providing a “rational connection between the facts found and the choice made”–i.e. there is evidence people cheat at drug tests if not watched while ‘performing’. Actually, no evidence was given of a single prosthetic or other cheating device being used during a DOT drug test, but the court held that there was sufficient “anecdotal evidence” of their availability. While writing this update, we Googled “pass urine test” and received over 1.1 million sites, 37 thousand if you use “prosthetic” instead of “pass”.
Let us just hope that for dignity’s sake, the personal privacy line is drawn here.
