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Fit to fly, a look at alcohol and cannabis regulations

Are you fit to fly? A burning question, especially for professional pilots, flight crews and other aviation licence holders. In the good old days, intoxication focused on alcohol as defined by the adage eight hours bottle to throttle. However, that has been changed in the Canadian Air Regulations (CARs) to 12 hours. In recent years, the movement to the legalization of recreational and medicinal marijuana (cannabis) has brought aircrew addictions into the limelight. In 2017, the then Minister of Transport, Marc Garneau, asked all airlines operating in Canada to confirm that their safety protocols are up to date, including measures designed to confirm pilots’ fitness to fly. This was a reaction to an intoxicated pilot boarding a Canadian aircraft. The top eight Canadian airlines have all since confirmed that they have proper safety protocols in place to deal with alcohol and drug testing.

Professional pilots, think of four bars ATP, create an image in the public minds of an individual who attracts great respect, is highly trained and built up to exhibit extreme professionalism. An image which is often projected to their friends, family and co-workers. For pilots drinking on the job, individuals on the flight crew team, may choose to advise their employer that they are not willing to work with that pilot. This could launch an investigation by the pilot’s employer, which could put the huge investment into their four bars at risk, compromise their reputation and open a Pandora’s box of legal issues. An accident or incident could launch investigations by the regulators and insurance companies.

In August 2023, a United Airlines pilot showed up at the airport for a transatlantic flight under the influence of alcohol and was handed a six-month suspended prison sentence by a French court as reported by Le Parisien. The French media outlet reported that the pilot had a blood-alcohol level of 0.132 per cent, more than six times the legal limit for pilots in Europe and three times that of the Federal Aviation Administration’s (FAA) limit. Lawrence Russell Jr. was arrested on charges under the U.K.’s Railways and Transport Safety Act of 2003, which states that a pilot is unfit to fly when impaired by alcohol or drugs. The law sets a maximum allowable blood-alcohol limit at 0.02 per cent, among other regulations. According to the U.K. law, aircrew found guilty can face penalties including a fine and up to two years in prison.

Lyle Prouse in 1990 became the first commercial pilot sent to prison for flying while intoxicated. He was a Northwest Airlines pilot when he was charged under a 1986 federal law aimed at cracking down on drug abuse in the transportation industry. Prouse was fired, lost his FAA licenses, imprisoned and went sober. He eventually regained his FAA licenses, was rehired by Northwest Airlines and pardoned by President Bill Clinton. He then wrote a book about his journey entitled Final Approach – Northwest Airlines Flight 650, Tragedy and Triumph, published in 2011 ($23.52 on Amazon.ca).

The FAA’s data shows there are at least a handful of alcohol violations every year among commercial pilots who fly for airlines or charter operations. The number of alcohol violations among pilots over the last 20 years has ranged from five in 2013 to 25 in 2019. According to the FAA, there were seven pilot alcohol violations in 2022. The FAA states that a pilot will be removed from an aircraft if their breath alcohol concentration level is 0.04 or greater. The FAA’s bottle-to-throttle time is eight hours before flight. Some airlines have stricter requirements.

From the CARs perspective, three sections govern pilots regarding fit to fly, including: 602.01.1, which reads no person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person; 602.02, an operator of an aircraft shall not require any person to act as a flight crew member or to carry out a preflight duty, and a person shall not act as a flight crew member or carry out that duty, if the operator or the person has reason to believe that the person is not, or is not likely to be, fit for duty; and 602.03, no person shall act as a crew member of an aircraft (a) within 12 hours after consuming an alcoholic beverage, (b) while under the influence of alcohol, or (c) while using any drug that impairs the person’s faculties to the extent that the safety of the aircraft or of persons on board the aircraft is endangered in any way. Clearly, the operator of the aircraft has a duty of care under CARs to ensure that the pilot and aircrew are fit to fly.

Transport Canada (TC) reports: “If for any reason a person believes that they are not, or are not likely to be, fit for duty, then they shall not act as a flight crew member nor carry out preflight duties – nor be assigned by the air operator to these duties. CARs also prohibit the exercise of privileges associated to a Canadian Aviation Document if the holder falls in one of the circumstances described in Subsection 404.06(1)(a) that could impair a holder’s ability to exercise those privileges safely (e.g. the holder suffers from an illness, injury or disability).”

Each airline has strict rules about pilot and crew behaviour before and during flights. This includes drinking outside of the TC, FAA or airline guidelines and taking medication that may compromise the safety of passengers and other crew members. This applies to prescribed drugs as well. Intoxicated pilots would hopefully be prevented from operating the aircraft by fellow crew members who are obligated by law and company policy to protect the safety of passengers. But the nuisances in the airline world, with the protection afforded by the pilot unions, complicates an environment of free and open communications.

Airlines have procedures in place to identify pilots with possible substance abuse problems. Help is available for these individuals, especially if they admit their problem and ask for assistance before impairment incidents occur. Airlines conduct random employee urine testing with and without cause to help protect passengers and other crew members.

The use of recreational and medicinal cannabis is another hot topic, which historically TC struggled to deal with. When the Federal government legalized cannabis, it updated the criminal code to ensure that the law was crystal clear as to the use of cannabis by aircrews. During an aviation medical, TC’s current Civil Aviation Medical Examination Report asks: Alcohol or substance abuse (yes or no); current medications (prescriptions or OTC); and weekly alcohol intake (units). TC has a 28 day cannabis consume before you fly rule. The 28-day policy is based on existing CARs which require pilots, flight engineers, and air traffic controllers to be fit for duty and free of the effects of any drugs or medications.

Following the legalization of cannabis, TC undertook an extensive policy review and consultation to determine the most effective means of ensuring aviation safety about impairment overall, including cannabis. Information regarding TC’s cannabis policy in aviation can be found on the regulatory’s website via the headers aviation/general operating flight rules/better pilot decision making/cannabis legalization. Subsection 320.14(1) of the Criminal Code of Canada also prohibits operation of conveyance while impaired by alcohol or drugs, aircraft being included in the definition of conveyance. Substance Use Disorder (SUD), including the use of substances such as alcohol, cannabis and cocaine, is disqualifying for aviation medical certification under CARs. In cases of SUD, where treatment and recovery have been successful, applicants may be considered on a case-by-case basis. It is important to note that the legality of a substance does not imply safety in the aviation environment. Aside from alcohol and cannabis, many prescription drugs, over-the-counter, and natural health products are prohibited for aviators. This is consistent with existing CARs sections 602.02, 602.03 and 801.01 which require fitness for duty, and that no person shall act as a crew member of an aircraft, air traffic controller, or flight service specialist while using or under the influence of any drug that impairs the person’s faculties to the extent that aviation safety is affected.

Aviation personnel, although not inherently dishonest, may avoid volunteering information which may affect their medical certification during a CAME medical interaction. This behavioral thinking could be amplified with the individual’s livelihood tied to the CAME interaction and the present situation at TC. The CAME handbook provides guidance regarding the applicant interaction: “They will, however, respond to direct questions and will sometimes provide a CAME much more information than the CAME expects if the CAME convinces them that their prime interest is keeping them at work. Sometimes they have problems that may affect their medical certification that they would like to discuss with someone of good will. Of particular importance in the interview is any suggestion of substance abuse, mental instability, lack of insight or inappropriate reactions. The CAME has an opportunity to decide whether this is the type of person with whom you would fly or to whom you would entrust your family. Substance Abuse/Dependence: Disqualifying. Once ‘recovering’, an individual assessment is required to assess risk of relapse. Restricted category may be recommended. Continued abstinence is the key to medical recertification.” Most if not all CAMEs will report the interaction to TC.

Chris Nowrouzi, President and CEO of FLYGTA Airlines, believes that the Canadian aviation industry has a high level of responsivity (as a whole) and during the life of FLYGTA, has yet to find an intoxicated aircrew member report for work. “My experience working at Toronto Airways at the Toronto Buttonville Airport and as a flight instructor, we drilled into the minds of new pilots the perils of drinking before and during flight,” says Nowrouzi. “The maturity of Canadian pilots combined with the buddy system inherent in the cockpit, ensures that our pilots are doing the right thing.”

Anthony Norejko, President and CEO of the Canadian Business Aviation Association, reports: “We need a safe, modern, quick and equitable resolution process delivered by TC. The current process, tied to aviation license holders’ ability to earn a living, inherently causes an individual with a substance abuse problem or medical prescription dependency or other medical problem [which might medically disqualify them] to go underground and not disclose medical issues to their CAME.” The 28-day cannabis issue illustrates the need for TC to implement long-term studies and determine the impacts from an aviation perspective required to make changes to the rule. However, the current funding and staffing issues faced by TC suggests that this will not be a priority.

Cannabis usage creates other problems for Canadian pilots. It is a U.S. Federal offence to possess Cannabis when crossing the border. Canadian pilots and cannabis users holding FAA licences may be offside when undergoing a FAA medical examination. The FAA requires pilots to report drug and/or alcohol related motor vehicle actions (MVA) to the agency’s Security and Hazardous Materials Safety Office, Regulatory Investigations Division.

The Code of Federal Regulations at 14 C.F.R. § 61.15(e) requires all Part 61 certificate holders to send a written report to the FAA within 60 calendar days of any drug and/or alcohol related MVA. These reports are commonly referred to as notification letters. Failure to send a notification letter within 60 days to the FAA’s Security and Hazardous Materials Safety Office is grounds for: Denial of an application for any certificate, rating, or authorization issued under this regulation for up to one year after the date of the motor vehicle action; suspension or revocation of any certificate, rating, or authorization issued under this regulation. The 28-day rule practically dictates that professional flight crews do not partake in the use of cannabis.

TC is considering a new licence within the RPAS Category (Level 1 Complex). In Canada, drone and radio controlled model aircraft came in scope to CARs. Radio controlled model aircraft enthusiasts are in the midst of the cultural transition from being unregulated, beyond conventional safety codes set down by the Model Aeronautics Association of Canada (MAAC), the Academy of Model Aeronautics (AMA), and local R/C flying clubs. In the good old days, beer and flying R/C aircraft went hand in hand during hot summer days. MAAC’s safety code states: “No member shall operate any category of model while under the influence of alcohol/cannabis or other judgment impairing drugs.” In the fall of 2023, TC issued a “What We Heard Report Regulations Amending the Canadian Aviation Regulations (RPAS – BVLOS and Other Operations): Canada Gazette, Part I Consultations”. TC received many comments during the consultation period about the new RPAS medical standard showing concern about the process being too strict. There were some comments that raised issues with the fitness of crew members provision, more specifically on pilot impairment. Stakeholders suggested that revisions or further clarity should be provided on the use of cannabis while operating an RPAS. All TC guidance material will be updated before coming into force to provide clarity.

TC reports: “The CARs exist to ensure safe and efficient operations within the aviation sector. TC appeals to each individual and aircraft operator to be responsible and diligent in their commitment to the regulations. It is important to emphasize that contravention can lead to significant safety issues and trigger the suspension (or cancellation) of a Canadian Aviation Document. It can also trigger judicial penalties or administrative enforcement actions, such as monetary penalties set out in Subsections 103.08(1) and (2) of the CARs.”

Safety is a shared responsibility. The cockpit buddy system creates an environment where members of the flight crew have an opportunity to determine the fitness to fly of their buddy. The majority of pilots are responsible people. The process to create a licence holder weeds out immature and irresponsible personalities. As with many things in life, it is about the exception and not the norm. Stay informed about the regulations and the latest best practices and share them in your local flying communities.