In MN Airlines, Inc. v. Levander, No. 15-CV-2454 PAM/BRT, 2015 WL 5092495 (D. Minn. Aug. 28, 2015), the court addressed whether federal law preempts the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”) in the field of drug testing of airline personnel. The court concluded that the regulations are clear that the Federal Aviation Administration (“FAA”) has preempted the field of drug testing of airline personnel. As such, states may not regulate the drug testing of aviation personnel performing safety-sensitive functions. Because DATWA regulates such testing, the court held that DATWA, as applied to airline personnel, is preempted by the FAA regulations.

Facts of Levander
Defendant was a flight attendant in Minnesota for Sun Country Airlines until she was fired for failing a random drug test. Defendant argued that her termination violated DATWA, which prohibits an employer from firing an employee after their first failed drug test unless the employer has first given the employee an opportunity to participate in a drug or alcohol counseling or rehabilitation program, and the employee has either refused to participate in the program or has failed to successfully complete the program. Plaintiff argued that DATWA, as applied to airline personnel, is preempted by federal law and FAA regulations, which comprehensively regulate drug testing by airlines.

Background on Federal Preemption
Article VI of the Constitution establishes that the Constitution, laws, and treaties of the United States are the “supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const. art. VI, cl. 2 (commonly known as the Supremacy Clause). Where the federal government has regulated conduct in a field the federal government intended to occupy exclusively, a state law actually conflicts with federal law, or the federal law explicitly states that any state laws on a subject matter are preempted, then the state law is preempted, and therefore invalid. See English v. General Electric Co., 496 U.S. 72, 78-79 (1990). These preemption types are known as field, conflict, and express preemption, respectively. The Levander court only examined field and conflict preemption. See Levander, 2015 WL 5092495.

The District Court Finds DATWA is Preempted by FAA Drug Testing Regulations
The Levander court held that the FAA drug testing regulations clearly preempt the field of drug testing of airline personnel. The court explained that as a flight attendant, Defendant was classified as an aviation personnel performing safety-sensitive functions. As such, Defendant was subject to drug-testing requirements of both the FAA and the Omnibus Transportation Employee Testing Act of 1991 (“OTETA”), 49 U.S.C. § 45101 et seq. The OTETA requires random drug and alcohol testing for personnel performing safety-sensitive functions and sets forth a comprehensive scheme governing such testing, including permitted and required consequences for positive drug tests. 49 U.S.C. § 45102(a). The regulations promulgated by the FAA under OTETA “preempt[] any State or local law, rule, regulation, order, or standard covering the subject matter” of those regulations, “including, but not limited to, drug testing of aviation personnel performing safety-sensitive functions.” 14 C.F.R. § 120.121(a).

The court determined, therefore, that states may not regulate the drug testing of aviation personnel performing safety-sensitive functions. Because DATWA regulates drug testing of airline personnel performing safety-sensitive functions, the court held that it is preempted as applied to safety-sensitive airline personnel.

Conclusion
The court’s holding in Levander clearly establishes that the FAA preempts the field of drug testing of airline personnel performing safety-sensitive functions. Because the decision is based on the broad preemption language contained in the FAA regulations, however, the Levander decision does not directly address whether DATWA is preempted by other DOT drug/alcohol testing regulations (e.g., FMCSA, FRA, FTA, USCG, or RSPA drug/alcohol rules).
If you have questions about the Levander decision, whether DATWA applies to specific DOT agency drug/alcohol testing, or about how to establish a lawful drug and alcohol testing policy in Minnesota, contact any of the employment attorneys of Trepanier MacGillis Battina P.A.
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About the Author:
Minnesota drug testing attorney Craig W. Trepanier has extensive experience advising clients on workplace drug and alcohol testing matters including drafting DOT and Non-DOT drug and alcohol testing policies. Craig has litigated numerous cases under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota drug testing law firm located in Minneapolis, Minnesota.
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