Executive Summary: In a decision that is good news for airline employers, a federal trial court in Minnesota has held that the state drug-testing statute, which prohibits discharging an employee the first time the employee fails a drug test, is preempted by federal law and the Federal Aviation Administration's (FAA)'s drug testing regulations. See MN Airlines v. Levander (Dist. Minn. August 28, 2015).

In this case, Sun Country Airlines discharged a flight attendant after she failed a random drug test. The flight attendant threatened to sue the airline under the Minnesota Drug and Alcohol Testing in the Workplace Act (MDATWA), which prohibits employers from discharging an employee the first time the employee fails a drug test unless the employee has been given the opportunity to participate in a rehabilitation program and has refused to do so or failed to successfully complete such a program. Sun Country filed a lawsuit in federal court seeking a declaration that the state drug testing law as applied to airline personnel is preempted by federal law and the FAA's drug testing regulations.

Flight attendants are subject to the FAA's drug-testing regulations for aviation personnel performing safety sensitive functions and the Omnibus Transportation Employee Testing Act of 1991 (OTETA). The OTETA requires random drug testing for airline personnel performing safety sensitive functions and prohibits employees from performing safety sensitive functions if they have used drugs or alcohol during the performance of their duties.

The court noted that the regulations promulgated under the 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." The court held, "Rarely is the intent of a law so clear: states may not regulate the drug testing of aviation personnel performing safety-sensitive functions. The MDATWA purports to do just that, by precluding airlines from terminating the employment of such personnel for an initial positive drug test. As such, it is preempted.