March 4, 2010 - United States Court of Appeals in the District Of Columbia has overturned the National Transportation Safety Board (NTSB) decision to revoke Dr. Fred Pasternack"s pilot and instructors certificates. The court vacated the Board’s decision and remand for further proceedings consistent with the courts opinion.   

Dr. Fred Pasternack was a part-time pilot with Northeastern Aviation. Northeastern Aviation has a drug policy that requires random drug check on all personnel. In June 2007, Northeastern Aviation notified Pasternack that he had been randomly selected for drug testing.  

Pasternack reported to the company’s drug testing facility, LabCorp collection site to give a urine sample. However, Pasternack was unable to provide a sufficient quantity of urine for the test. He was informed he would need to remain at the collection site until he could produce enough urine to perform the test.  

What Is A Refusal To Take A DOT Drug Test (In Brief) 

40.191 - (a) As an employee, you have refused to take a drug test if you: (1) Fail to appear for any test within a reasonable time, as determined by the employer, after being directed to do so by the employer. This includes the failure of an employee to appear for a test when called. (2) Fail to remain at the testing site until the testing process is complete; Provided, That an employee who leaves the testing site before the testing process commences for a pre-employment test is not deemed to have refused to test; (3) Fail to provide a urine specimen for any drug test required by this part or DOT agency regulations; Provided, That an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences for a pre-employment test is not deemed to have refused to test;  

(c) As an employee, if you refuse to take a drug test, you incur the consequences specified under DOT agency regulations for a violation of those DOT agency regulations. 

(d) As a collector or an MRO, when an employee refuses to participate in the part of the testing process in which you are involved, you must terminate the portion of the testing process in which you are involved, document the refusal on the CCF (including, in the case of the collector, printing the employee's name on Copy 2 of the CCF), immediately notify the DER by any means (e.g., telephone or secure fax machine) that ensures that the refusal notification is immediately received. As a referral physician (e.g., physician evaluating a shy bladder condition or a claim of a legitimate medical explanation in a validity testing situation), you must notify the MRO, who in turn will notify the DER. 

(1) As the collector, you must note the refusal in the Remarks line (Step 2), and sign and date the CCF.  

Pasternack filed an appeal with United States Court of Appeals in the District Of Columbia. The NTSB's case hung on Pasternack refusal to complete his drug test. Pasternack, “left the test site without providing an adequate urine sample and before the testing process had been completed” – qualified as a refusal under the plain language of § 40.191(a)(2). 

Pasternack argued that he did not refuse to take the exam, he was not informed that if he left the testing site it would be considered a refusal to take the exam. The lab technician indicated that she did not believe Pasternack’s departure as a refusal to take the test.  

The FAA and the NTSB argued the Pasternack had been trained as a medical review officer. Pasternack, “should have been familiar with the requirement that an employee may not leave the collection site during a random drug test.” 

The court of appeals three member judges on February 26, 2010 remanded the case for further proceedings consistent with the courts opinion. (see court case)