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The union’s latest stand is against expanding the U.S. Department of Transportation’s testing program to screen for four opioid drugs, including frequently abused prescription painkillers. The union’s position is contrary to that of the airlines and the National Transportation Safety Board, the investigative body tasked by Congress with making safety recommendations.
“I think the underlying issue is opiate use, misuse and addiction is a huge societal problem in the United States, and unfortunately airline pilots are part of that and are not immune to the problem,” NTSB Chief Medical Officer Mary Pat McKay said in a Dayton Daily News interview.
Dr. Mary Pat McKay, National Transportation Safety Board Chief Medical Officer
The union announced its opposition to testing for opioids a week after Halye’s children found him and his wife dead in their Centerville home.
The Montgomery County Coroner’s Office said it suspects fentanyl — heroin’s much-stronger cousin — is a factor in Halye’s death, and it has been found to be responsible for an increasing number of deaths both locally and nationally.
But even if DOT includes the four opioids in its drug panel over the union’s concerns, the screen still would not test for fentanyl. McKay told the newspaper NTSB would likely be supportive of adding fentanyl to the DOT panel under certain conditions.
Despite multiple requests since Halye’s death March 16, ALPA declined to comment or make its experts available to the Daily News. The newspaper then turned to hundreds of pages of records spanning four decades — lawsuits and court documents, comments on proposed federal regulations, accident reports, and ALPA’s own publications — to uncover the union’s position.
‘Concrete evidence of drug use’
Battles over testing go back decades, and the arguments today are eerily similar to the 1980s and ’90s, when the push for more extensive pilot testing gathered steam.
In January 1988, Continental Air Express 2286 crashed in Colorado, killing the captain and eight others on board. The NTSB later determined the captain’s use of cocaine contributed to the accident, which served to heighten calls for more drug testing.
Later that year, the Federal Aviation Administration adopted regulations requiring random drug testing on 50 percent of safety-sensitive personnel, including pilots. That rule, which took effect in November 1988, brought a strong response from ALPA, which along with several other parties asked an appeals court to review the requirement.
The union argued the agency’s new regulations violated protections against unreasonable searches and seizures.
Drug use in aviation was not widespread, the FAA conceded in its rulemaking document. But citing the Continental Air Express disaster and an FBI investigation following the Pittsburgh Press’ 1986 investigation that revealed nearly 70 pilots were treated for cocaine addiction, the agency concluded there was “concrete evidence of drug use in the commercial aviation sector.”
The rules, which were posted in the Federal Register, said ALPA was open to pre-employment, post-accident, rehabilitation and reasonable suspicion tests, but was “opposed to random and periodic testing based on their belief that these tests are offensive, ineffectual, unjustified, and unconstitutional.”
ALPA additionally suggested anti-drug regulations should not interfere with or override the union’s collective bargaining rights, and maintained the industry should self-police drug abuse, according to the rulemaking document.
ALPA filed its appeal on Sept. 15, 1989. Five days later, two USAir pilots aborted takeoff from a LaGuardia Airport runway and crashed a Boeing 737-400 into the East River, killing two passengers.
USAir 5050 crashed in the East River after pilots aborted takeoff from LaGuardia Airport on Sept. 20, 1989. The pilots finally submitted a urine sample for drug and alcohol testing 44 hours after testing, but did not submit blood samples on the advice of their union attorney. PHOTO/NTSB
The mystery that followed — what happened to the pilots? — further amplified the confrontation over how and when pilots should be tested for alcohol or drugs.
The pilot and co-pilot both left the crash scene and couldn’t be located for more than 36 hours, enraging then FAA Administrator James B. Busey, who said, “These actions have negated the opportunity for meaningful toxicological testing, thereby denying us factual information about whether drugs were or were not a factor.”
ALPA, which represented the pilots, responded by saying, “The crew has cooperated completely with the investigation.” Forty-four hours after the incident, the pilots finally submitted urine samples but, on the advice of their attorney, who also represented the union, they did not submit any blood samples.
NTSB determined in its final report the accident’s probable cause involved failures by the captain while on the runway. The report also revealed ALPA officials initially stated they did not know where the pilots were after the crash, then later said their location was being withheld to protect them from the media.
“The sequestering of the pilots for such an extended period of time in many respects borders on interference with a federal investigation and is inexcusable,” the NTSB report said.
As the USAir controversy played out in public, another court case surfaced challenging an airline’s ability to drug test key personnel, including pilots.
The lawsuit, filed by the union in federal court nine days after the USAir crash, sought to overturn a summary judgment in favor of Alaska Airlines, arguing that the airline violated a collective bargaining agreement in its voluntary implementation of a drug testing program.
The appeals court vacated the summary judgment but allowed the airline’s drug-testing program to continue. By 1991, the Omnibus Transportation Employee Testing Act set testing regulations across industries regulated by the transportation department, including the airlines. However, the percentage of employees tested declined under the new legislation.
Today, the rate of random screening on safety-sensitive employees is 25 percent for drug tests and 10 percent for alcohol tests, a rate that allows some pilots to escape testing for years.
‘False perception’ of safety
ALPA has long maintained that random drug screens do little more than destroy the careers of pilots.
“Pilot unions have long engaged in measures both subtly and overtly that would suggest they are not in favor of drug testing,” said Dr. Ashley Nunes, a regulatory analyst with the MIT Center for Transportation & Logistics. “The idea, essentially, is they are there to do as much for their members as they possibly can. If that helps the traveling public, that’s great, but if it doesn’t, tough luck.”
Dr. Ashley Nunes, MIT Center for Transportation & Logistics regulatory analyst
The International Federation of Air Line Pilots’ Associations, of which ALPA is the largest member, maintains random testing doesn’t work as a deterrent.
In a briefing paper posted on the website for the group, which bills itself as the “global voice of pilots,” the federation says the workplace quite often “is one of the last places where substance abuse is noticed. Family members, friends and colleagues most often will have noticed the problem during leisure time before it becomes evident in the work environment. At this stage peer intervention programs are an effective means of intervention and prevention as opposed to the problematic substance-use testing programs in the workplace. Testing programs introduced as a reaction to political pressure create the false perception that such testing improves safety,” the paper says.
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The paper concludes that pilot associations need to develop “understandings with employers and licensing authorities that problematic substance use in an individual will be considered as an illness requiring diagnosis, treatment and rehabilitation with a view towards returning the employee to work.”
While the pilots’ union argues that drug testing — random drug testing in particular — is not effective, others point to studies that make the opposite argument. A 2007 University of California Irvine study of workers in general found drug use was significantly lower among those tested both at hiring and at random, as opposed to just one of the two.
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Another study, by Columbia and Johns Hopkins University researchers, said random testing in aviation provides “essential data” on drug use and effectiveness of intervention programs.
While aviation employees on a whole are much less likely to use illicit drugs than employees in other transportation modes, those who do test positive are at a significantly increased risk of being involved in accidents, the researchers found.
The continued fight
Arguments over testing have centered on when and how the tests should be conducted.
The FAA in 2002 proposed that employees selected for random drug screens stop performing safety-sensitive work and report to the test site “as soon as possible.”
ALPA proposed changing the time requirement to “as soon as is practicable,” which triggered a debate over how pilots should respond to testing notices from the cockpit.
The FAA denied the union’s proposal, saying pilots shouldn’t be getting advanced warnings through the in-cockpit messaging system, called ACARS.
“ACARS advance notification has been linked … to dilutions, substitutions and adulterations,” the agency said.
Another fight ensued in 2010 after DOT proposed lowering the cut-off threshold for detecting cocaine and amphetamines in initial and confirmatory tests. ALPA called the proposal “premature and ill-advised” and argued it would increase the risk of false positive tests.
DOT implemented the change over the union objection.
Aviation analyst Michael Boyd sees the issue from both sides.
“The entities that want to do drug testing the most are the airlines, because it’s their $20 million aircraft they’re flying,” he said. But he also said union scrutiny of drug testing is “positive in that labor unions want to make sure these things aren’t abused.”
Michael Boyd, aviation analyst and president and CEO, Boyd Group International.
“They just want to make sure this isn’t done haphazardly or done in a manner that would result in inaccurate testing,” Boyd said.
New testing changes
The latest proposals, which call for expanding the number of drugs included in testing panels, have also drawn union objections.
The transportation department currently tests for marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines. DOT hopes to add four opioid prescription medications — hydrocodone, hydromorphone, oxycodone, and oxymorphone — for inclusion in its drug-testing panel later this year.
Each of these opioid prescription drugs carry warnings about operating vehicles or machinery because of their psychoactive and sedative effects, according to the NTSB, which supports the change.
The nonprofit, nongovernmental National Safety Council — chartered by Congress to promote health and safety — also agrees with the change, calling it “a major advance in our nation’s efforts to effectively address the misuse of opioid painkillers.”
But in a 23-page response to the government, ALPA argues the proposal has several flaws. Among them, the union argues the proposal could violate due process and has “unduly low” testing cut-offs that put compliant pilots at risk. The union says the test should be designed to differentiate between those who use the drug legally and those who abuse drugs.
“They’re wrong,” said McKay, the NTSB’s chief medical officer, “because they’re not understanding the entire system.”
The DOT proposal includes protections for safety-sensitive employees who provide a valid prescription for the opioid drugs.
McKay said the proposal is designed to detect and document evidence of drug use, and the system will allow pilots to explain positive drug tests to a medical review officer and provide a prescription.
ALPA, though, also questions if those medical review officers are properly trained.
Shawn Pruchnicki, a pharmacist trained in toxicology who lectures at the Ohio State University Center for Aviation Studies, said he agrees with his former union’s toxicological reasoning.
“People say, well, they don’t have anything to fear if they just produce a prescription for the substance,” said Pruchnicki, a former Comair pilot. “But with these levels being so low, it could very well look like an individual took a dose seven hours before flying.”
ALPA also maintains random drug screens are “exorbitantly expensive with very little return.”
The airlines, however, see the issue differently.
The “benefits of deterring safety sensitive employees from taking these four prescription drugs without a legitimate prescription outweighs the costs associated with this proposal,” said Airlines for America, representing nine carriers including American, United, and Southwest.
The deadly, missing drug
Toxicology tests on Halye are pending, but his death has given new dimension to the problem of drugs in aviation: What if the epidemic hitting communities across the nation takes grip among those who hold the lives of thousands in their hands?
Fentanyl and other synthetic opioids other than methodone were responsible for a 72 percent increase in overdose deaths from 2014 to 2015, according to a study cited by the Centers for Disease Control and Prevention.
The National Transportation Safety Board could support adding fentanyl, seen here, to the U.S. Department of Transportation’s drug screen under certain conditions. CHRIS STEWART/STAFF
Yet fentanyl won’t be on the list of drugs being tested even if the four prescription opioids are added to DOT’s drug testing regimen.
“Fentanyl is a synthetic opioid, and the current drug testing regime does not detect any of the synthetic opioids,” FAA said in a statement to the Dayton Daily News.
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That could change, according to McKay, who said NTSB could support DOT testing for fentanyl if the U.S. Department of Health and Human Services can verify the testing protocol for labs.
But McKay cautioned that the federal rulemaking process moves very slow.
“At the time they picked the drugs they were most interested in, fentanyl wasn’t a large problem,” she said. “Fentanyl has grown in its misuses in the United States. The problem is the system is always going to lag behind.”
Contact Staff Writer Will Garbe at 937-259-2086 or email@example.com.