LEGAL CORNER
use such devices to cheat on required return-to-duty and follow-up drug tests. The Court concluded “the Depart- ment acted neither arbitrarily nor capriciously in conclud- ing that the growth of an industry devoted to circumventing drug tests, coupled with returning employees’ higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the mandatory use of direct observation.” The Court also held that the direct observation rules did not violate the Fourth Amendment constitutional prohi- bition on unreasonable searches and seizures. The Court
concluded that “[g]iven the combination of the vital impor- tance of transportation safety, the employees’ participation in a pervasively regulated industry, their
prior violations of the drug regulations, and the ease of ob- taining cheating devices capable of defeating standard testing procedures, we find the challenged regulations facially valid under the Fourth Amendment.” Subsequently, on July 1, 2009 the Court issued a Mandate which finalized the decision and lifted the stay. In effect, the Court’s Mandate reinstated the direct-observation require- ments of DOT’s June 25, 2008 final rule.
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Business aviation maintenance and repair now has A NEW STANDARD.
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CONCLUSION Effective August 31, 2009, direct obser- vation of return-to-duty and follow-up tests will be the law. “Lift up your shirt and drop your shorts” will be mandatory for employees who have already failed or refused to take a prior drug test. Users of the Whizzinator or other cheating devices beware. © July, 2009. All rights reserved.
Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certificate (single engine land and sea and multi-engine land) with instrument rating. His practice concentrates on aviation litigation, including aviation insurance matters and FAA certificate actions, and also aviation transactional matters. He is admitted to practice law in Minnesota
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For over 50 years, StandardAero has been a leader in engine maintenance for military and commercial aviation. We’re known for our innovation and the efficiency of our work processes, helping to minimize costs and downtime. Now, we’ve joined forces with Landmark Aviation’s MRO services, allowing us to provide a global level of capabilities and service to business aviation. To find out more about the new StandardAero, and what we can do for you, visit our website at
standardaero.com.
and Wisconsin and advises clients throughout the country on aviation law matters. A cum laude graduate of William Mitchell College of Law, Greg is the founder and president of the law firm Reigel & Associates, Ltd./Aero Legal Services based in Hopkins, Minnesota. He is an Adjunct Professor for the Business Law Clinic and an Instructor for the “Lawyering Skills” courses at William Mitchell. Greg’s articles have appeared in Private Pilot, the Midwest Flyer and on
www.globalair.com. He frequently speaks to groups on aviation and business law issues. Greg is a member of the AOPA Legal Services Panel, secretary of the Minnesota Aviation Trade Association and a member of the NTSB Bar Association, National Busi- ness Aviation Association, Minnesota Business Aviation Association, ABA-Forum on Air & Space Law, Lawyer-Pilot Bar Association and Experimental Aircraft Association.
09.10 2009
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