Yes. DOT requires the employer to provide SAP names and contact information, regardless of whether the employee is returning to safety-sensitive functions for you or not. If you are terminating the employee, but the employee intends to apply for another job in the transportation industry, successful completion of the DOT return-to-duty process is still required. The employee must receive SAP information from you, the employer that he/she was working for when the violation occurred.
DOT regulation 40.287 prohibits employers from charging an employee for a list of SAPs.
DOT doesn’t specify who must pay for SAP services. As an employer, you can decide if you will pay for these services or not. If you plan to make employees responsible for paying for SAP services, it’s advisable to include this in your written employee policy.
The process can take several weeks or even months. The SAP must conduct an extensive evaluation, which may require several visits with the employee. The SAP must then develop a plan for treatment and education, and do follow-up visits to verify that the employee is complying with the plan.
This isn’t possible. DOT rules prohibit a SAP from determining that an employee needs no treatment or education. The SAP must make a recommendation for treatment or education or both.
Only trained SAPs who have passed an exam can provide SAP services. You can verify that a SAP has completed qualification training and the exam by viewing his or her SAPlist profile.
However, as an employer, you are ultimately responsible for ensuring that a SAP is properly credentialed, trained, and has passed an exam. DOT regulations give you the authority to request this information from each SAP that you use. You can ask a SAP to fax or mail copies of his/her training documentation to you, for your files. If the documentation you receive is questionable, you may request additional information, or you may decide to look for a different SAP.
The regulation does not mention the use of case managers. The practice of SAPs working under a case manager developed in the early days of this regulation, when some SAPs didn’t understand the rules and there was no requirement that they had to be trained. The addition of a case manager was important for quality assurance.
Assuming a SAP’s training met DOT’s requirements, and the SAP has the requisite professional skills and qualifications, the SAP should be able to work independently. However, you may feel more comfortable using a SAP who provides services under a case manager. The choice is yours.
DOT gives full authority to a SAP to make decisions that are therapeutically appropriate. DOT also has made it very clear that a SAP’s primary responsibility is not to get an employee back to work, but rather to protect the safety of the traveling public. A SAP’s recommendation stands and no one can change it. Neither employers or employees are permitted to seek another assessment from a second SAP. (This is called “SAP shopping,” and is specifically prohibited by the regulation. [40.295])
As the employer you may take whatever job action you want to take, considering, of course, any agreements or contracts that are relevant. If you terminate the employee, the employee will be free to seek employment with another DOT-covered employer, but only if he/she successfully completes the SAP’s recommended plan.
The return-to-duty test cannot be conducted until you have received the SAP’s follow-up evaluation report stating that the employee has complied with the recommendation. [40.305(a)] If you do conduct the test in advance, DOT will require that the test must be conducted again, just before the employee returns to safety-sensitive duty.
No, you can’t ask the SAP to help you with this decision. As the employer, the decision about taking an employee back is yours alone. The SAP is required to report to you only that the employee has or has not complied with the recommendation. At that point, employment decisions are up to you.[40.305(c)]
No. The regulations specify exactly what a SAP must put into a report. [40.311] You may be putting the SAP in a position of liability if you ask the SAP to provide more information than is permitted by the regulations.
Most of the information relates to the employee and where he/she works. But the Initial evaluation must include the SAP’s recommended plan for treatment. The follow-up evaluation must include the SAP’s clinical determinations related to compliance or non-compliance. If the employee complied, the SAP’s report must also include a required follow-up testing plan.
No. The regulations state that the SAP cannot make those determinations. [40.307(d)(3)] As the employer, you know your employee’s work schedule. You will be the first to observe “performance issues” that suggest an employee may have returned to using drugs. Therefore DOT considers that you, the employer, are in the best position to decide when to require an employee to submit to a follow-up test.
DOT doesn’t specify who pays for these tests. As an employer, this is a decision that you can make. It could also be affected by labor agreements that you may have. You can decide to pay for all of the follow-up tests, or you may split the cost with the employee, or you may pass the entire cost along to the employee. Whatever you decide to do, it’s a good idea to include this information in your written employee policy.
No. DOT considers the follow-up testing plan to be confidential. Neither the SAP nor the employer can share that information with the employee. [40.329, Technical Amendment, 8-1-2001]
No. Reimbursement for follow-up tests (and for an employee’s requested retest of a split specimen) cannot interfere with the tests being conducted. If you notify an employee of a follow-up test, the employee must immediately go to a collection site. Reimbursement is a separate issue, and you will have to address that later. If an employee tries to avoid a follow-up test by saying he has no money to pay for it, you can call this a refusal to be tested, which is a violation and now requires a new SAP assessment and return-to-duty process.
No. The regulations give the SAP complete authority over the follow-up testing plan. An employer cannot increase (or decrease) the SAP’s recommended number of tests. [40.307(d)(4)]
No. DOT requires the employer to conduct all the tests that the SAP has required. [40.309] Auditors may decide to compare a SAP’s report with the required plan, to the number of tests that were actually conducted. As the employer, you will be responsible for tests not conducted.
If you only have one (or a few) employees who are subject to follow-up testing, you might consider using a 12-month calendar. When you receive a SAP’s report that specifies follow-up testing, go through the calendar and randomly select days, equal to the number of required tests. Code the marks somehow so that you know which marks pertain to which employee. Look at the calendar regularly, and notify the employee on the marked day. If the employee is absent, or if it just isn’t convenient, simply move the mark to a later day. As long as the employee hasn’t been notified, you can change the days whenever you want to. (You could accomplish the same thing with small sticky notes.) But whatever you decide to do, keep the system confidential, and don’t put information on the calendar that could be easily identified by others.
You must first obtain, with the employee’s written authorization, the SAP reports related to the violation. [40.25(a)(5)] The follow-up evaluation will include the SAP’s follow-up testing plan. Call the DER at the previous place of employment and find out how many follow-up tests have been conducted. You are now responsible for conducting all remaining follow-up tests.
Some SAPs say that they are certified or approved. But the DOT does not have a certification or approval process for Substance Abuse Professionals (SAPs). The most a SAP can be is qualified under the DOT requirements [40.365(b)(10)], and have completed SAP qualification training and a SAP exam. That’s it. There is no certification or designation of approval by DOT.
When you search for SAPs in the SAPlist directory, verify their qualifications by clicking to view their profiles.
What should be the relationship between the SAP and my Employee Assistance Program?
While the SAP role is prescribed by regulations, the EAP role varies greatly among Employee Assistance Programs. Blair Consulting Group has extensive experience with various models and interactions. Please call us if you would like to discuss your particular situation. Lee Mauk (612) 827-4147 or Brenda Blair (979) 693-7268.