Narrow Preemption for Aviation Drug Testing Says 2nd Circuit

Reviewing an issue that has split the 5th and 9th Circuits, the 2nd Circuit holds there is a narrow preemption of suits relating to drug testing in the aviation industry. In a dispute going back to a 1993 failed drug test, the court sends a suit brought by a terminated Delta flight attendant back to the lower court with many of his common law claims against the labs involved in the drug test intact.

According to the court, determining preemption is a two step process:

We think that the regulations call for a two-step analysis, then, for determining whether a state-law claim is preempted. First, state law is preempted if it "cover[s] the subject matter" of the federal rule. 14 C.F.R. Pt. 121, App. I § XI(A). When state law regulates conduct that is addressed by a specific provision of the FAA regulations, it is preempted. Second, state law is preempted if it "cover[s] the subject matter of . . . drug testing of aviation personnel performing safety-sensitive functions." Id. While some state laws may "cover the subject matter" of the drug testing of aviation personnel even if they regulate issues not specifically addressed by the FAA regulations, they are not preempted unless their relationship to such drug testing is so substantial as to interfere with the consistency and uniformity of the federal regulatory scheme.

Drake v. Laboratory Corp. of America (2nd Cir. 9/12/06) [pdf].

Although the labs being sued lost on their broad preemption arguments, they were not totally without success, as the court found:

• If Drake is asserting that conduct addressed by the federal regulations is "wrongful" under state law although it does not violate the federal regulations, such claims are preempted; and
• Drake's claim that the defendants-appellants acted negligently by "ignor[ing] industry standards and protocols for random drug testing" also appears to be preempted to the extent that it refers to "standards and protocols" other than those in the federal regulations.

Not as much as hoped for, but better than nothing.