§40.291 — What is the role of the SAP in the evaluation, referral, and treatment process of an employee who has violated DOT agency drug and alcohol testing regulations?
(a) As a SAP, you are charged with: (1) Making a clinical assessment and evaluation to determine what assistance is needed by the employee to resolve problems associated with alcohol and/or drug use. At the SAP's discretion, this assessment or evaluation may be performed face-to-face in-person or remotely. If a SAP is not prohibited from using technology within the parameters of the SAP's State-issued license or other credential(s), a remote evaluation must be must be conducted in accordance with the following criteria: | (i) The technology must permit real-time audio and visual interaction between the SAP and the employee; and |
| (ii) The quality of the technology (e.g., speed of the internet connection and clarity of the video display) must be sufficient to allow the SAP to gather all the visual and audible information the SAP would otherwise gather in an in-person face-to-face interaction, while providing security to protect the confidentiality of the communications at the level expected by industry standards for remote substance abuse evaluations. |
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(2) Referring the employee to an appropriate education and/or treatment program; |
(3) Conducting a follow-up evaluation to determine if the employee has actively participated in the education and/or treatment program and has demonstrated successful compliance with the initial assessment and evaluation recommendations. This assessment or evaluation may be performed face-to-face in-person or remotely. A face-to-face remote evaluation must meet the criteria in paragraphs (a)(1)(i) and (ii) of this section. |
(4) Providing the DER with a follow-up drug and/or alcohol testing plan for the employee; and |
(5) Providing the employee and employer with recommendations for continuing education and/or treatment. |
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(b) As a SAP, you are not an advocate for the employer or employee. Your function is to protect the public interest in safety by professionally evaluating the employee and recommending appropriate education/treatment, follow-up tests, and aftercare. |
[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]
§40.291 — DOT Regulatory Guidance
Question 1: Suppose the SAP fails to make the required recommendation for education and/or treatment of an employee who has violated a DOT agency drug or alcohol testing rule, and simply sends the employee back to the employer for a return-do-duty (RTD) test. What is the employer to do? Guidance: The employer should not administer an RTD test under these circumstances.
The employer should refer the employee back to the SAP with direction to prescribe education and/or treatment and conduct a re-evaluation of the employee to determine whether the employee has successfully complied with the SAP's instructions.
If the employer has compounded the problem by having conducted the RTD test and returned the employee to safety-sensitive duties (i.e., only realizes that a mistake has been made some time after the fact), the employer should work with the SAP to "go back and do it right."
This means that the employee should be removed from performance of safety-sensitive functions, referred back to the SAP for an education and/or treatment prescription, and re-evaluated by the SAP for successful compliance. Following the receipt of a successful compliance report from the SAP, the employer would conduct another RTD test before returning the employee to performance of safety-sensitive functions.