Too Old to Fly: Who Decides?

In January 2023, a large fractional operator gave notice to its pilots that they intended to implement an age-70 limit. Everyone waited to see what would happen. As the calendar year rolled into 2024, they did it. They removed older crewmembers from their schedules, which triggered a lawsuit filed by a group of pilots seeking to overturn the age cap.

The operator cited their forced retirement decision based on Congress' omnibus spending bill that included language which allows Part 91K and 135 operators, who log at least 75,000 yearly jet operations, to implement an age-70 ceiling. It's not mandatory, but once an operator decides to use the limit, they can't reverse the decision or make exceptions. Smaller operators are keeping an eye on the final decision.

Given the current pilot shortage and aging pilot population, the question being asked is: can/should an employer impose a maximum age requirement for pilots operating private aircraft for hire under Part 91 or 135 of the FARs to retire at age 65 like the rule imposed by the FAA on commercial pilots operating under Part 121 (airlines) of the FAR (with a current proposal being debated for age 67)? Forcing, or even asking, a pilot to retire would create a substantial risk for illegal discrimination under the Age Discrimination in Employment Act.

How old you are might look and feel different if it's the last leg of a five-day trip compared to the first day. Now that we're living longer, there are vast differences on how we age. There are 75-year-olds running marathons and 20-year-olds so obese they need wheelchairs to move. Given the variables, how does the aviation industry justify and analyze mandatory retirement ages?

Current Requirements

Let's start with understanding the current requirements:

1. The "Age 60 Rule" in the airlines was in place from 1959 until 2007, but because of the Fair Treatment for Experienced Pilots Act, they raised the maximum age for Part 121 pilots to 65. But this only applies to FAR Part 121, which means that private and commercial pilots (i.e. Business Aviation pilots for hire) are lumped into the same general category. Because the "Age 65 Rule" does not apply to Business Aviation pilots, corporate flight departments have no law limiting a pilot's age. They are having to let pilots self-regulate when they think they need to retire if they can pass their flight physicals.
2. The aviation industry uses Classes of medical certificates as the determination of health/safety and level of flying. It's an evaluation based on a short visit with a flight physician. Generally, any pilot performing PIC functions of an ATP in an aircraft requiring a type-rating must have a First-Class medical. Second-in-Command in Part 121 must hold a Second-Class medical unless you're over 60 years of age, in which case, you need a First-Class Medical. Some operators simply require all pilots to have a First-Class medical.
3. Second-Class is required for all other operations that carry passengers for hire and is good for 12 months if over 40. After that, you can use the privileges of a third class medical (it remains a 2^nd class medical). It's important to note that commercial pilots flying with a valid FAA Second-Class medical in some ICAO countries may not be in compliance because ICAO does not recognize a Second-Class medical for any commercial operations. A Third-Class is appropriate for private pilots (not for hire), so we won't be including this in the discussion. Click Summary of Medical Standards for details.

Part 135 rules depend on the kind and type of operation and types of aircraft. PICs on either a turbojet or any airplane having 10 or more passenger seats must have a First-Class medical, but if you're flying anything smaller than that or flying as SIC, you just need a Second-Class medical.

What this all means is that, once a pilot retires from the airlines, they could remain flying in a corporate Part 91 or Part 135 flight department. One method a flight department could use to alleviate safety concerns is simply require all its pilots to have a First-Class medical certificate. This doesn't present as much risk from an age discrimination perspective. It's not typically required for Part 91/135 corporate operations, but this could enhance screening without potential liability. Or, simply having a company rule in the FOM/GOM that requires all pilots to retire at a certain age, as long as it's known at the time of accepting the pilot position. You can't change it once someone is hired without risking age discrimination issues.

Value Of The Aging Pilot Brain

There is so much knowledge and wisdom in the brain of a pilot reaching retirement age that can only be obtained from experience. It's important to use this valuable resource in perpetuating aviation safety.

One way of tapping into these brains is using them in training positions and as check pilots. FAR 135.338 (B)(5) states that flight instructors must hold at least a Third-Class class medical certificate. The same part section (E) states that an airman who does not hold a medical certificate may serve as a flight instructor in an aircraft if functioning as a non-required crewmember.

The rules allow you to act as a flight instructor while also serving a pilot role (PIC or SIC).   This also allows you to provide flight instruction if the crew was unsatisfactory on a maneuver.

Some pilots race toward the retirement finish line. They know they're done and have no problem walking away without looking back. Been there, done that. But there is a growing segment of retiring airline pilots who still feel they have a few more productive years left and want to remain in the cockpit. Business Aviation is their opportunity. It might be an adjustment operating without seniority lists or the rigidity and (mundane) routes of Part 121 operations, but Business Aviation offers a growing opportunity to stay active in an aviation career.

The Old, Bold Pilot

It's hard to admit when we're at an age where safety becomes a concern. No one wants to admit they're too old for anything, but setting an age limit which blankets everyone isn't logical.

What does a Safety Manager/Director of Operations/Chief Pilot do when they know a pilot has reached an age where it has become a safety issue? Reflexes, memory, hearing, and eyesight that might pass in a quiet doctor's office are challenged when flying long duty days in bad weather and high-traffic areas. Add in mountain terrain, mechanical issues, and personality clashes in the cockpit and, cumulatively, it equals an operation that edges on the circle of safety.

There is no easy answer. The only thing for certain is it would be a waste to not allow pilots to stay in the pipeline once they've reached an arbitrary age. Beyond laws and age discrimination lawsuits, there needs to be an honest external and internal conversation to keep the aviation world safe. Towards the end of a pilot's career, the teeter totter that rocks back and forth between good and bad days might spend more time on the bad day side, indicating it's time to retire, at least from the cockpit.

There are so many peripheral positions in aviation that need experience that the hope is these knowledgeable pilot brains are willing to come back into the training environment and share their stories. There is such a thing as old, bold pilots, and we need to keep them in operation. The worst thing you can do to an airplane is to put it in the back corner of a hangar and never fly it. It's the worst thing we can do to our pilots, too. Hopefully we can keep these pilots flying, even if it's in the hangar.