turbinepilot2

Help me out on aviation law a little bit. The 121 airlines are governed by Part 117 fatigue rules (below). Those say a crewmember must self-certify by affirmatively stating they are not fatigued. Part 135 does not have that. Now if I am tired (seriously noisy hotel, fresh divorce, sudden health issue, storms at night, whatever) can I still use 91.13 careless and reckless operation rules to justify fatiguing out for my Part 135 show time the next day? Logically you would think no one should legally report for duty if they are truly fatigued no matter what operation it is.

§ 117.5 Fitness for duty.
(a) Each flightcrew member must report for any flight duty period rested
(b) No certificate holder may assign and no flightcrew member may accept assignment to a flight duty period if the flightcrew member has reported for a flight duty period too fatigued
(c) No certificate holder may permit a flightcrew member to continue a flight duty period if the flightcrew member has reported him or herself too fatigued to continue the assigned flight duty period.
(d) As part of the dispatch or flight release, as applicable, each flightcrew member must affirmatively state he or she is fit for duty prior to commencing flight.

JohnBurke

Your question isn't clear and jumps around the regulation, but it appears that you're asking if you can call fatigue while operating under 14 CFR 135. Yes.

If you are fatigued, you have a responsibility to refuse to fly, period. It doesn't matter if you're flying under 91, 121, 135, 137, etc. Fatigue is fatigue, and fatigue is unsafe.

Under Part 121, which isn't relevant if you're employed under Part 135, a certification is made that one is fit to fly, but you have this same responsibility as a pilot, either PIC or SIC, in determining that you are fit to fly every time you fly. This is true whether you are operating a Cessna 172 under Part 91, or a 787 under Part 121, or an AT802 spraying fields under Part 137. Remember the FAA's IM SAFE? You're responsible for all of it, every time you fly, no matter whether you're getting paid or not, and no matter the operating regulations that cover you. The requirement is universal.
I - Illness
M - Medication
S - Stress
A - Alcohol
F - Fatigue
E - Emotions

You can't "use" 14 CFR 91.13 as an excuse not to fly. If you're not fit to fly, then you're not fit to fly. 91.13 is a catch-all regulation used by the FAA in the majority of regulatory violations. Fly under a bridge? 91.13. Not plan enough fuel?91.13. Fly in meteorological conditions less than VFR, while VFR? 91.13. Fly fatigued? 91.13. Careless and reckless operation applies to nearly every lapse in pilot action or judgement, and gets included in enforcement action much of the time. If you fly fatigued, then yes, you are acting in a reckless and careless manner, but 91.13 is not an excuse not to fly. It's the regulation that's going to cost you your career, your certification and your job.

You're required to be fit to fly not just on the basis of fatigue, but based on anything that affects your ability to safely operate the aircraft, exercise good judgement, and to meet all the requirements of exercising your pilot privileges. Can't focus because you're undergoing a divorce? You'll need to determine if this impacts your ability to operate. It very well may. Angry because of the drive from home, a road-rage incident on the highway? You may not be ready to fly. Taking over the counter medication that might impact you? Your medical certificate isn't valid until you're fit to fly, regardless of how recently it was issued, and you're only legal to fly if you're fit to fly. Tired? Head cold? Hung over? Bad headache? Whatever the case, it's on you to determine if you're fit to fly, and if your'e not sure, then there's a high probability that you're not fit to fly.

If you show up for a flight and refuse the flight based on fatigue, most employers will be justifiably displeased. If you know you're not going to be adequately rested, emotionally stable, free of medication, or any other impairment, then you need to give the employer as much heads-up as you can. There's really no point when you can claim protection based on 91.13. That's not a protection: it's the regulation that will be used to "violate you," or that if you violate, will be used in enforcement action against you. What you can do is say that you're not able to make the flight because you're not fit to fly.

An employer expects you to show up fit to fly. That's what you're getting paid for. The employer can't assign a flight if you're not fit, and you can't accept a flight if you're not fit.

Having said this, an employer will give you one or two fatigue calls and will probably find another pilot. Part of the expectation of being a pilot for a given employer is that you'll manage your life in order to be ready to fly when you're needed. Part 135 includes rest and duty rules that are designed to give you rest opportunities. No one tells you to go to bed, or to put personal issues aside, or what to eat, how to exercise, or anything else, so it's up to you to manage yourself and your life in order to be ready to perform your duties in a safe manner. If your schedule is pushing you into a corner, and if you find that cumulative flight cycles are making you fatigued, then you have to speak up and state what you can and can't do. The fatigue call is supposed to be universally sacred. It isn't. Good employers will honor it, and good employees won't abuse it. It goes both ways. Professional judgement is knowing your limits, but you need to understand that even if an employer doesn't recognize your fatigue call, even if an employer threatens your job, it's still your responsibility to refuse to fly if you're not fit. This is a dilemma you're more exposed to in the 135 world than 121. The only difference between the written certification under Part 117 for 121 operators, and your self-certification under Part 135, is the formality of the paperwork. The responsibility is the same, and it's always on your shoulders. The 117 certification is merely a formal legal signature stating that you're fit to fly, but if you accept a flight under Part 135, you're doing the same thing by accepting the flight.

turbinepilot2

Thanks JB for your quality response. I really appreciate it.

The context here is I was fired with no warnings or verbal reprimands, nor had I ever received any for anything else, by mentioning that fatigue may be an issue for me soon. The context is I was under formal treatment by a licensed physician for hypertension and acute sinusitis at the time, and was in fact taking prescribed drugs daily. It was a real health issue, not a trick or negotiation tactic. I told dispatch about it and they immediately escalated to management who apparently took it as a tactic or threat and fired me on the spot. No warning, no verbal, nothing. There had been no prior issues with this subject (or any fireable-offense sort of subject) either. I did not see it coming and was stunned. I thought I was doing the right thing by telling them about my impending health issues but boy did that backfire. Pilots, do not discuss anything with dispatch. Do not tell them anything.

Ok fine, fast forward. Now my employer is saying I did or could not have had a legal basis for refusing to fly if I were sick. I think (know) they are wrong. Certainly no company wants its pilots fatiguing out. I get that. But if you must, there has to be some legal basis for it.

But I think I have my answer. FAR 91.13 indicates you are liable as pilot if you operate an aircraft recklessly, for example knowing you have a an unfit condition for a flight. Next, FAR 61.61.53 "Prohibition on operations during medical deficiency" indicates that it is illegal to fly if you do not meet the conditions of your medical issuance. I think those are the laws I am looking for. I am looking for laws saying that if I know of any condition that makes me unfit then I have a legal obligation to not fly. I think it is pretty clear that these laws supporting that sort of decision. Whether you get fired or not is another subject. If you work for this firm you will be fired ruthlessly it seems.

JohnBurke

The complexity of your situation is multi-faceted. Regarding fatigue, it appears that you weren't fatigued, but advised you might be or might e calling fatigued.

If you weren't fit to fly based on medication that was being taken, that's not the same as fatigue, but a separate issue which might prevent you from exercising the privileges of your medical certificate. The conditions of issue are spelled out on the back of your medical certificate. Among those is that you must continue to comply with the validity standards specified for your medical certificate; comply with any statement of functional, operational, or time limit of the medical certificate; and comply with the standards relating to prohibition of operation during a medical deficiency (reference 14 CFR 61.53.

Your diagnosis and treatment of hypertension should be a matter of record with the FAA; something you've covered and discussed with your AME, along with the relevant limitations of any medication that you may be taking. The FAA should have been provided with all that information. The sinusitis and associated medicine might be a limiting factor on a temporary basis, so long as the condition exists. It's generally not something that needs involvement of your AME, but you need to consider both the medication and it's impact on your ability to fly, as well as the underlying condition (you definitely don't want an imploded sinus; I've had it and been hospitalized by it, and it's not nearly as much fun as one might imagine). If you happen to fly a pressurized airplane, some of the effects of a sinus condition are minimized by the use of pressurization; consider the effects of a pressurization loss at altitude, complicated b the sinus condition.

Medical fitness to fly would be a separate issue from fatigue, though of course one can influence the other. It is possible to prospectively look at an upcoming assignment and determine that one will be fatigued by the end of the assignment, but in general, employers expect that the employee will manage his or her rest to ensure that the pilot is able to complete the assignment. That said, legal rest is not an assurance that one will not be fatigued; circadian factors, cumulative flight schedules, etc, all combine to affect fatigue, and simply because one is given a rest opportunity does not mean one will be able to get adequate rest or sleep during that interval. It's not uncommon for employers to schedule a charter operator to do the charter, then "Part 91 it" home by repositioning after duty has ended. Technically, if the employer assigns it, it's duty, so the only legal way to do a "part 91" leg after duty is if the pilot volunteers, and it's very possible to look ahead and determine one will be to fatigued to do that reposition leg. Employers have even tried to put Part 91 legs in advance of a Part 135 leg and start duty after the 91 leg; the FAA has made clear that this isn't legal.

Part 135 lacks the degree of regulation that 121 flying enjoys, but then supplemental cargo operations under 121 also lack those regulatory protections, too. (Certain international operators are subject up to 30 hour duty days, for example).

Many operators are based in at-will states, meaning you can quit any time, and you can be let go at any time. Given the lack of union, the at-will legality, and the nature of on-demand 135 flying, the 135 universe favors the employer more than the pilot (or as an inspector wryly once noted, "we may sanction your boss, but we're definitely coming after you." Loss of employment is something for a labor attorney, and it may be worth visiting that issue to soften the way it may impact your employment history. A legal analysis of how your specifics apply may be beyond the scope of the discussion here, but certainly there are multiple factors at work.

So far as not informing the employer of a medical condition which limits your availability to fly, I'm not aware of any company that doesn't require the employee to keep the dispatch or director of operations, or company, informed of any condition which might make them unavailable. At most employers where I've worked, one could be terminated for not informing the company of any number of details that range from a change of address to a medical deficiency, to outside flying. I can't speak to your specific case as there is a lot of information not known, and it may be best to refrain from revealing too much until you have had an opportunity to seek legal counsel. If you happen to be an AOPA member, they do have a minimal legal plan that provides some level of assistance.

rickair7777

Bottom line, all pilots of any cert class, operating under any FAR section have a right and obligation to call in sick or fatigued as needed.

Now some employers, including some airlines, REALLY don't like it when you "predict" fatigue... they are spring-loaded to view that as a "threat", even if you are simply making what should be a reasonable communication to help them plan and maintain the integrity of their operation. Some consider that a discipline offense. For that reason, personally, I won't give them advance warning. I'll stay on the oar until actual fatigue occurs, then bang out. Play stupid games...

My shop has wised up a bit in recent years... they've pulled me off of a couple looming train wrecks without me having to say anything, while technically still legal but obviously not in a good circadian place.

As far as discipline, if they have an issue they should obviously follow a progressive process well before termination for most issues. That's a matter for a lawyer, but calling in sick or fatigued should never be legit grounds for discipline.

But corporate aviation is the wild west, if that's the minefield you play in you'll need to tread carefully.

dera

Legally at an at-will state, and without a bargaining agreement/employment contract stating otherwise, they do not have to follow any kind of process to terminate you.

My airline recently opened a specific 24/7 desk that deals with predictive fatigue issues. The idea is to call them 3-4 days in advance and point out something stupid in your schedule. They are actually fantastic, and they have the authority to manipulate a lot of things to make the operation run without interruptions.

Peabody17

But if it’s a Part 135 air carrier, you refuse to fly because you are fatigued (or any other safety reason), and are subsequently disciplined for it, you can file an AIR21 complaint with the Department of Labor and FAA. See https://www.faa.gov/about/initiatives/whistleblower

turbinepilot2

All great replies, gents. This is what makes a professional forum great.