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§40.307 — What is the SAP's function in prescribing the employee's follow-up tests? (a) As a SAP, for each employee who has committed a DOT drug or alcohol regulation violation, and who seeks to resume the performance of safety-sensitive functions, you must establish a written follow-up testing plan. You do not establish this plan until after you determine that the employee has successfully complied with your recommendations for education and/or treatment. |
(b) You must present a copy of this plan directly to the DER (see §40.311(d)(9)). |
(c) You are the sole determiner of the number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both, unless otherwise directed by the appropriate DOT agency regulation. For example, if the employee had a positive drug test, but your evaluation or the treatment program professionals determined that the employee had an alcohol problem as well, you should require that the employee have follow-up tests for both drugs and alcohol. |
(d) However, you must, at a minimum, direct that the employee be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the employee's return to safety-sensitive functions. (1) You may require a greater number of follow-up tests during the first 12-month period of safety-sensitive duty (e.g., you may require one test a month during the 12-month period; you may require two tests per month during the first 6-month period and one test per month during the final 6-month period). |
(2) You may also require follow-up tests during the 48 months of safety-sensitive duty following this first 12-month period. |
(3) You are not to establish the actual dates for the follow-up tests you prescribe. The decision on specific dates to test is the employer's. |
(4) As the employer, you must not impose additional testing requirements (e.g., under company authority) on the employee that go beyond the SAP's follow-up testing plan. |
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(e) The requirements of the SAP's follow-up testing plan “follow the employee” to subsequent employers or through breaks in service. The employee returns to duty with Employer A. Two months afterward, after completing the first two of six follow-up tests required by the SAP's plan, the employee quits his job with Employer A and begins to work in a similar position for Employer B. The employee remains obligated to complete the four additional tests during the next 10 months of safety-sensitive duty, and Employer B is responsible for ensuring that the employee does so. Employer B learns of this obligation through the inquiry it makes under §40.25. The employee returns to duty with Employer A. Three months later, after the employee completes the first two of six follow-up tests required by the SAP's plan, Employer A lays the employee off for economic or seasonal employment reasons. Four months later, Employer A recalls the employee. Employer A must ensure that the employee completes the remaining four follow-up tests during the next nine months. |
(f) As the SAP, you may modify the determinations you have made concerning follow-up tests. For example, even if you recommended follow-up testing beyond the first 12-months, you can terminate the testing requirement at any time after the first year of testing. You must not, however, modify the requirement that the employee take at least six follow-up tests within the first 12 months after returning to the performance of safety-sensitive functions. |
| (g) As the employer, SAP, or other service agent, you must not provide to the employee a copy of their drug and/or alcohol follow-up testing schedule prescribed by the SAP. No employer, SAP, or other service agent will indicate to the employee what the frequency or duration of the employee's follow-up testing schedule will be. The SAP can require follow-up testing for either or both drugs and alcohol for a drug-related or an alcohol-related violation. |
[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023] §40.307 — DOT Regulatory Guidance Question 1: May an employer conduct follow-up testing under company authority that goes beyond the follow-up testing which the SAP determines necessary? Guidance: No. The regulation (at 40.307(d)(4)) and SAP guidelines state that employers must not impose additional testing requirements that go beyond the SAP's followup testing plan. This includes additional testing requirements under company authority. In addition to follow-up testing and random testing, an employer has other means available to ascertain an employee's alcohol- and drug-free performance and functions. - The employer can choose to monitor the employee's compliance with the SAP's recommendations for continuing treatment and/or education as part of a return-to-duty agreement with the employee.
- The employer can conduct reasonable suspicion testing if the employee exhibits signs and symptoms of drug or alcohol use.
- The employer can meet regularly with the employee to discuss the employee's continuing sobriety and drug-free status.
The Department is not opposed to an employer discussing his or her desires for having more than the minimum rule requirement (i.e., 6 tests in the first year) for follow-up testing with SAPs they intend to utilize.
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