DOT vs FAA

The DOT tests safety-sensitive employees in transportation industries through 49 C.F.R. § 40, which was implemented in 1988 in response to alcohol and drug related injuries and fatalities in the public transportation sector.

Transportation workers, including pilots, are subject to pre-employment, random, post-accident, and reasonable-cause testing under the DOT. The FAA, as part of the DOT, has definitions in 14 C.F.R. § 120 describing how aviation implements DOT requirements and responds to a pilot’s positive test or test refusal.

After a medical review officer verifies a DOT test failure, and the pilot has exhausted split-test or other regulatory measures to reverse the finding, the pilot must have an evaluation by a federally qualified SAP under Part 40/Part 120 rules. The regulation require the SAP to recommend education or treatment, and that the pilot have a follow-up evaluation by the same SAP provider after treatment.

Most pilots with a DOT test failure find the FAA using emergency authority under 49 U.S.C. §§ 44709 and 46105(c) to REVOKE THE PILOT’S MEDICAL CERTIFICATE. THE FAA MAY ALSO REVOKE THE PILOT’S AIRLINE TRANSPORT CERTIFICATE.

Here’s a critical distinction most pilots without the support of a carrier misunderstand: resolving the DOT test failure under Part 40/120 should be viewed as essentially a Human Resources process. If you visited an SAP, followed treatment recommendations, and had an encouraging follow-up visit, you are eligible to have a pre-employment or return-to-work DOT test conducted under the regulation. But you are probably not qualified to hold an airman’s medical certificate just because you fulfilled DOT obligations under Part 49/120.

Another important distinction all pilots must understand: all marijuana products are Schedule I drugs under DEA classification. Marijuana is a banned substance at the federal level. It matters not that marijuana in your state may have been recreationally legalized, medically allowed, or decriminalized. A verified failed test showing cannabinoids/marijuana, even when the pilot used CBD, counts as a DOT strike.

In Part 67.107/.207.307, under (b)(2), a pilot failing a drug test conducted under a DOT program automatically meets the Part 67 definition for Substance Abuse. It does not matter if the pilot claims a false positive (such as CBD exposure without using marijuana) or refused to test/could not provide a sample – a failed drug test by rule (b)(2) equals Substance Abuse. If a medical review officer issued a failed test finding, and the aviator exhausted options to reverse the finding, the pilot has Substance Abuse. No other claim by the pilot is likely to reverse the FAA’s interpretation of rule (b)(2).

The bottom line is that a pilot with a failed DOT test must fulfill obligations under Part 120, meet assessment/treatment standards to earn a Special Issuance Authorization medical certificate under Part 67, and may need to restore the Airline Transport Certificate. The pilot will not satisfy Part 67 medical certification standards by focusing only on Part 120 return to work eligibility.

Dr. Kirk can do both Part 67 (HIMS psychiatric) and SAP evaluations (Part 49/120) at the same time. The pilot can save time and resources moving through Part 49/120 and Part 67 obligations in parallel.

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