Question 2:
Are employers required to provide intervention and treatment for drivers who
have a substance abuse problem or only refer drivers to be evaluated by an
SAP?
Guidance:
An employer who wants to continue to use or hire a driver who has violated the
prohibitions in subpart B in the past must ensure that a driver has complied
with any SAP’s recommended treatment prior to the driver returning to
safety-sensitive functions. However, employers must only refer to an SAP
drivers who have tested positive for controlled substances, tested 0.04 or
greater alcohol concentration, or have violated other prohibitions in subpart
B.
Question 3:
Under the DOT rules, must an SAP be certified by the DOT in order to perform
SAP functions?
Guidance: The DOT does not certify, license, or approve individual SAPs. The SAP must be
able to demonstrate to the employer qualifications necessary to meet the DOT
rule requirements. The DOT rules define the SAP to be a licensed physician
(medical doctor or doctor of osteopathy), a licensed or certified psychologist,
a licensed or certified social worker, or a licensed or certified employee
assistance professional. All must have knowledge of and clinical experience in
the diagnosis and treatment of substance abuse-related disorders (the degrees
and certificates alone do not confer this knowledge).In addition, alcohol and
drug abuse counselors certified by the National Association of Alcoholism and
Drug Abuse Counselors Certification Commission, a national organization that
imposes qualification standards for treatment of alcohol-related disorders, are
included in the SAP definition.
Question 4:
Are employers required to refer a discharged employee to an SAP?
Guidance:
The rules require an employer to advise the employee, who engages in conduct
prohibited under the DOT rules, of the available resources for evaluation and
treatment including the names, addresses, and telephone numbers of SAPs and
counseling and treatment programs. In the scenario where the employer
discharges the employee, that employer would be considered to be in compliance
with the rules if it provided the list to the employee and ensured that SAPs on
the list were qualified. This employer has no further obligation (e.g., to
facilitate referral to the SAP; ensure that the employee receives an SAP
evaluation; pay for the evaluation; or seek to obtain, or maintain the SAP
evaluation synopsis).
Question 5:
How will the SAP evaluation process differ if the employee is discharged by the
employer rather than retained following a rule violation?
Guidance:
After engaging in prohibited conduct and prior to performing safety-sensitive
duties in any DOT regulated industry, the employee must receive a SAP
evaluation. And, when assistance with a problem is clinically indicated, the
employee must receive that assistance and demonstrate successful compliance
with the recommendation as evaluated through an SAP follow-up
evaluation.
The SAP process has the potential to be more complicated when
the employee is not retained by the employer. In such circumstances, the SAP
will likely not have a connection with the employer for whom the employee
worked nor have immediate access to the exact nature of the rule violation. In
addition, the SAP may have to hold the synopsis of evaluation and
recommendation for assistance report until asked by the employee to forward
that information to a new employer who wishes to return the individual to
safety-sensitive duties. In some cases, the SAP may provide the evaluation,
referral to a treatment professional, and the follow-up evaluation before the
employee has received an offer of employment. This circumstance may require the
SAP to hold all reports until asked by the individual to forward them to the
new employer. If the new employer has a designated SAP, that SAP may conduct
the follow-up evaluation despite the fact that the employee’s SAP has already
done so. In other words, a new employer may determine to its own satisfaction
(e.g., by having the prospective employee receive a follow-up SAP evaluation
utilizing the employer’s designated SAP) that the prospective employee has
demonstrated successful compliance with recommended treatment.
Question 6:
Do community lectures and self-help groups qualify as education and/or
treatment?
Guidance:
Self-help groups and community lectures qualify as education but do not qualify
as treatment. While self-help groups such as Alcoholics Anonymous (AA) and
Narcotics Anonymous (NA) are crucial to many employees’ recovery process, these
efforts are not considered to be treatment programs in and of themselves.
However, they can serve as vital adjuncts in support of treatment program
efforts. AA and NA programs require a level of anonymity which makes reporting
client progress and prognosis for recovery impossible. If the client provides
permission, AA and NA sponsors can provide attendance status reports to the
SAP. Therefore, if a client is referred to one of these groups or to community
lectures as a result of the SAP evaluation, the employee’s attendance, when it
can be independently validated, can satisfy a SAP recommendation for education
as well as a gauge for determining successful compliance with a treatment
program when both education and treatment are recommended by the SAP’s
evaluation.
Question 7:
Can an employee who has violated the rules return to safety-sensitive functions
prior to receiving an SAP evaluation?
Guidance:
The employee is prohibited from performing any DOT regulated safety-sensitive
function until being evaluated by the SAP. An employer is prohibited from
permitting the employee to engage in safety-sensitive duties until evaluated.
If the evaluation reveals that assistance is needed, the employee must receive
the assistance, be re-evaluated by the SAP (and determined to have demonstrated
successful compliance with the recommendation), and pass a return-to-duty
alcohol and/or drug test prior to performing safety-sensitive duties.
Question 8:
Can an employer overrule an SAP treatment recommendation?
Guidance:
No. If found to need assistance, the employee cannot return to safety-sensitive
functions until an SAP’s follow-up evaluation determines that the employee has
demonstrated successful compliance with the recommended treatment. An employer
who returns a worker to safety-sensitive duties when the employee has not
complied with the SAP’s recommendation is in violation of the DOT rule and is,
therefore, subject to a penalty.
Question 9:
Is an employer obligated to return an employee to safety-sensitive duty
following the SAP’s finding during the follow-up evaluation that the employee
has demonstrated successful compliance with the treatment
recommendation?
Guidance:
Demonstrating successful compliance with prescribed treatment and testing
negative on the return-to-duty alcohol test and/or drug test, are not
guarantees of employment or of return to work in a safety-sensitive position;
they are preconditions the employee must meet in order to be considered for
hiring or reinstatement to safety-sensitive duties by an employer.
Question 10:
Can an employee receive the follow-up from an SAP who did not conduct the
initial SAP evaluation?
Guidance:
Although it is preferable for the same SAP to conduct both evaluations, this
will not be realistic in some situations. For instance, the initial SAP may no
longer be in the area, still under contract to the employer, or still hired by
the employer to conduct the service. Additionally, the employee may have moved
from the area to a new location. In all cases, the employer responsibility is to
ensure that both the initial SAP and the follow-up SAP are qualified according
to the DOT rules.
Question 11:
Who is responsible for reimbursing the SAP for services rendered? Who is
responsible for paying for follow-up testing recommended by the SAP?
Guidance:
The DOT rules do not affix responsibility for payment for SAP services upon any
single party. The DOT has left discussions regarding payment to employer
policies and to labor-management agreements. Therefore, in some instances, this
issue has become part of labor-management negotiations.
Some employers have hired or contracted staff for the purpose
of providing SAP services. For some employees, especially those who have been
released following a violation, payment for SAP services will become their
responsibility. In any case, the SAP should be suitable to the employer who
chooses to return the employee to safety-sensitive functions. Employer policies
should address this payment issue.
Regarding follow-up testing recommended by the SAP, when an
employer decides to return the employee to safety-sensitive duty, the employer
is essentially determining that the costs associated with hiring and training a
new employee exceeds the costs associated with conducting follow-up testing of
the returning employee. In any case, whether the employer pays or the employee
pays, if the employee returns to performance of safety-sensitive functions, the
employer must ensure that follow-up testing occurs as required. The employer
will be held accountable if the follow-up testing plan is not followed.
Question 12:
Can the SAP direct that an employee be tested for both alcohol and drugs for
the return-to-duty test and during the follow-up testing program?
Guidance:
If the SAP determines that an employee referred for alcohol misuse also uses
drugs, or that an employee referred for drugs use also misuses alcohol, the SAP
can require that the individual be tested for both substances. The SAP’s
decision to test for both can be based upon information gathered during the
initial evaluation, the SAP’s consultation contacts with the treatment program,
and/or the information presented during the follow-up evaluation.
Question 13:
Can random testing be substituted for required follow-up testing?
Guidance:
Follow-up testing is directly related to a rule violation and subsequent return
to safety-sensitive duty. Random tests are independent of rule violations.
Therefore, the two test types are to be separated—one cannot be substituted for
the other or be conducted in lieu of the other. Follow-up testing should be
unpredictable, unannounced, and conducted not less than six times throughout
the first 12 months after the employee returns to safety-sensitive functions.
Follow-up testing can last up to 60 months. An employee subject to follow-up
testing will continue to be subject to an employer’s random testing
program.
Question 14:
If a company has several employees in follow-up testing, can those employees be
placed into a follow-up random testing pool and selected for follow-up testing
on a random basis?
Guidance:
Follow-up testing is not to be conducted in a random way. An employee’s
follow-up testing program is to be individualized and designed to ensure that
the employee is tested the appropriate number of times as directed by the SAP.
Random testing is neither individualized nor can it ensure that the employee
receives the requisite number of tests.
Question 15:
What actions are to occur if an employee tests positive while in the follow-up
testing program?
Guidance:
Employees testing positive while in follow-up testing are subject to the same
specific DOT operating administration rules as if they tested positive on the
initial test. In addition, the employees are subject to employer policies
related to second violations of DOT rules.
Question 16:
Can an SAP recommend that six follow-up tests be conducted in less than six
months and then be suspended after all six are conducted?
Guidance:
Follow-up testing must be conducted a minimum of six times during the first
twelve months following the employee’s return to safety-sensitive functions.
The intent of this requirement is that testing be spread throughout the 12
month period and not be grouped into a shorter interval. When the SAP believes
that the employee needs to be tested more frequently during the first months
after returning to duty, the SAP may recommend more than the minimum six tests
or can direct the employer to conduct more of the six tests during the first
months rather than toward the latter months of the year.
Question 17:
Can you clarify the DOT’s intent with respect to a SAP’s determination that an
individual needs education?
Guidance:
A SAP’s decision that an individual needs an education program constitutes a
clinically based determination that the individual requires assistance in
resolving problems with alcohol misuse and controlled substances use.
Therefore, the SAP is prohibited from referring the individual to her or his
own practice for this recommended education unless exempted by DOT
rules.
Question 18:
In rare circumstances, it is necessary to refer an individual immediately for
inpatient substance abuse services. May the SAP provide direct treatment
services or refer the individual to services provided by a treatment facility
with which he or she is affiliated, or must the inpatient provider refer the
individual to another provider?
Guidance:
SAPs are prohibited from referring an employee to themselves or to any program
with which they are financially connected. SAP referrals to treatment programs
must not give the impression of a conflict of interest. However, a SAP is not
prohibited from referring an employee for assistance through a public agency;
the employer or person under contract to provide treatment on behalf of the
employer; the sole source of therapeutically appropriate treatment under the
employee’s health insurance program; or the sole source of therapeutically
appropriate reasonably accessible to the employee.
Question 19:
What arrangement for SAP services would be acceptable in geographical areas
where no qualified SAP is readily available?
Guidance:
The driver must be given the names, addresses, and phone numbers of the nearest
SAPs. Because evaluation by a qualified SAP rarely takes more than one
diagnostic session, the requirement for an in-person evaluation is not
unreasonable, even if it must be conducted some distance from the employee’s
home.
Question 20:
May an employee who tests positive be retained in a non-driving
capacity?
Guidance:
Yes. Before an employee returns to performing safety-sensitive functions, the
requirements of §382.605 must be met.
Question 21:
Are foreign motor carriers required to have an employee assistance
program?
Guidance:
No. The employee assistance program was an element of the original drug
testing program under 49 CFR part 391, which has been superseded by 49 CFR part
382. All motor carriers under part 382 alcohol and drug testing regulations must
refer drivers, who operate in the U.S. and violate the FMCSA’s alcohol and drug
testing regulations, to a substance abuse professional.
